Icdang vs. Sandiganbayan (Second Division) and People of the Philippines

A special civil action for certiorari under Rule 65 cannot be used as a substitute for a lost appeal; the proper remedy to assail a Sandiganbayan conviction is a petition for review on certiorari under Rule 45, which must be filed within the reglementary period. Even if certiorari were available, no grave abuse of discretion is committed when a criminal case is submitted for decision on the strength of the prosecution’s evidence after the accused, despite repeated and lengthy postponements, fails to present any proof to overcome the prima facie case established by an audit shortage.

Petitioner Marino B. Icdang was the Regional Director of the OSCC Region XII in Cotabato City. In 1998, a Special Audit Team of the Commission on Audit (COA) examined the 1996 livelihood project funds of the OSCC-Region XII. The audit revealed that petitioner had received cash advances totalling ₱232,000.00 for various socio-economic projects but had not liquidated most of them. After deducting minor receipts, a shortage of ₱219,392.75 remained. Field interviews indicated that the intended projects—such as a children development project, an adult literacy program, the operationalization of a tribal cooperative, and an ancestral domain development program—were never implemented. COA demanded that petitioner produce the missing funds; he requested an extension but failed to comply. The Office of the Ombudsman found probable cause and charged him with malversation of public funds under Article 217 of the Revised Penal Code and violation of Section 3(e) of Republic Act No. 3019.

• Nature of the Charge: Petitioner was accused of taking, misappropriating, embezzling, and converting to his personal use ₱219,392.75 in public funds intended for OSCC Region XII socio-economic and cultural development projects, while serving as its Regional Director and accountable officer.
• The COA Audit and Shortage: A COA Special Audit Team formed on January 19, 1998 examined the 1996 livelihood project funds. The audit report disclosed that out of ₱920,933.00 released to the OSCC Region XII, cash advances totalling ₱407,000.00 were granted, with ₱297,392.75 remaining unliquidated as of December 31, 1997. Petitioner’s own cash advances, evidenced by disbursement vouchers and checks, amounted to ₱232,000.00. After deducting ₱10,000.00 covered by an acknowledgment receipt, ₱2,197.25 in cash invoices, and ₱410.00 in reimbursement expense receipts, his net shortage was ₱219,392.75.
• Non-Implementation of Projects: Field interviews conducted by the audit team revealed that the projects for which the cash advances were intended — a Children Development Project, an Adult Literacy Program, the operationalization of a tribal cooperative in Sultan Kudarat, the establishment of an ICC-IAD in Magpet, Cotabato, and an Ancestral Domain Development Program — were never implemented. Project officers reported that there was nothing to inspect.
• Demand and Petitioner’s Response: COA sent petitioner a demand letter to produce the missing funds. In his reply-letter dated March 19, 1998, petitioner requested a one-week extension to comply, citing the need to collect disbursement documents and notify payees to sign liquidation vouchers. The extension lapsed without compliance. The COA then recommended criminal prosecution.
• Proceedings at the Sandiganbayan: The prosecution’s lone witness, State Auditor Hadji Rashid A. Mudag, presented the audit findings, vouchers, and demand letters. On cross-examination, Mudag admitted that field interview certifications were not under oath and that he did not personally visit all project sites.
• Defense’s Failure to Present Evidence: From August 2002 to October 2006 — a span of over four years — the Sandiganbayan granted at least ten postponements at the behest of petitioner or his counsel, Atty. Manuel E. Iral. The reasons proffered included counsel’s illness (including a stroke), petitioner’s arthritis, lack of travel funds, the death of a relative, and the absence of witnesses. Despite the court’s repeated warnings, appointment of a counsel de oficio, and a final commitment from counsel to submit the case for decision if evidence was not produced, no documentary evidence or witness was ever presented. On October 11, 2006, the case was submitted for decision on the basis of the prosecution’s evidence alone.
• The Conviction: The Sandiganbayan found that all elements of malversation were present: petitioner was a public officer with custody of public funds accountable to him, and he failed to have them forthcoming upon demand. Applying the prima facie presumption under Article 217 of the Revised Penal Code, it held that petitioner’s failure to account for the shortage was evidence of personal misappropriation, which he did not rebut.

• Denial of Due Process: Petitioner argued that his right to due process was violated because he was unable to adduce evidence due to financial constraints and his residence in Cotabato, his counsel’s gross negligence in failing to assist him during trial and at the promulgation of judgment, and the Sandiganbayan’s refusal to reopen the case to allow presentation of his defense.
• Gross Negligence of Counsel: He maintained that his former counsel’s failure to file a timely motion for new trial or an appeal effectively deprived him of a remedy and constituted a denial of due process.
• Inequitable Result: Petitioner contended that it was highly unjust and unconscionable for him to be imprisoned on a charge he never committed, without his defense having been presented and appreciated by any court.

• Improper Remedy: The People argued that the petition for certiorari under Rule 65 was procedurally improper; the correct remedy to challenge the Sandiganbayan’s judgment of conviction was a petition for review on certiorari under Rule 45, which petitioner had already lost because he filed his motion for reconsideration out of time.
• No Grave Abuse of Discretion: Respondent maintained that the Sandiganbayan did not act capriciously or arbitrarily; it granted the defense multiple postponements over an extended period, yet petitioner never presented any evidence to rebut the prima facie case of misappropriation.

• Propriety of Certiorari: Whether a special civil action for certiorari under Rule 65 is the proper remedy to assail the Sandiganbayan’s final judgment of conviction for malversation.
• Denial of Due Process: Whether petitioner’s right to due process was violated when the Sandiganbayan proceeded with the promulgation of judgment in the absence of his counsel, and when his former counsel failed to file a timely appeal.
• Grave Abuse of Discretion: Whether the Sandiganbayan acted with grave abuse of discretion in submitting the case for decision and convicting petitioner on the strength of the prosecution evidence after the defense repeatedly failed to present its evidence.

• Propriety of Certiorari: The petition was procedurally improper and was dismissed on that ground. The appropriate remedy from a Sandiganbayan final order or decision is a petition for review on certiorari under Rule 45 raising pure questions of law, which must be filed within 15 days from notice of judgment or denial of a timely motion for reconsideration. Petitioner allowed the reglementary period to lapse without filing an appeal; his motion for reconsideration was six days late. A special civil action for certiorari under Rule 65 cannot be used as a substitute for a lost appeal. The remedies of appeal and certiorari are mutually exclusive and not alternative or successive.
• Denial of Due Process: No denial of due process occurred. Section 6, Rule 120 of the Revised Rules of Criminal Procedure requires notice to the accused and his counsel but does not require the presence of counsel at promulgation to validate a judgment of conviction; absence of counsel does not prejudice the accused’s substantial rights. More fundamentally, the trial record showed that petitioner was afforded ample opportunity to present his defense. The Sandiganbayan granted repeated postponements for over four years, accommodated his health and financial difficulties, and even appointed a counsel de oficio. The failure to produce any evidence was attributable to the defense, not to any judicially imposed constraint.
• Grave Abuse of Discretion: The Sandiganbayan did not act capriciously, whimsically, or arbitrarily. All elements of malversation were established: petitioner admitted receiving ₱232,000.00 in cash advances and his accountability for them, and he failed to produce the funds upon demand. The statutory presumption that such failure is prima facie evidence of personal misappropriation was never rebutted, as neither a liquidation report, certifications from project officers, nor any testimony was ever presented despite years of opportunity. Direct evidence of personal misappropriation is not required; an unexplained shortage suffices for conviction. Consequently, no grave abuse of discretion attended the submission of the case for decision and the rendition of the judgment of conviction.

• Prima Facie Presumption in Malversation (Article 217, Revised Penal Code) — The failure of a public officer to have duly forthcoming any public funds with which he is chargeable, upon demand by a duly authorized officer, is prima facie evidence that he has put the missing funds to personal use. The presumption is rebuttable: if the accused presents adequate evidence that the absence of funds was not due to personal use, the presumption is destroyed and is deemed never to have existed. Conversely, where the accused fails to present any such evidence, the prima facie case suffices for conviction.
• Certiorari Cannot Substitute for a Lost Appeal — A special civil action for certiorari under Rule 65 is available only when there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of law. It is not a substitute for an appeal that the party has already lost through failure to file a timely petition for review or motion for reconsideration. The remedies of appeal and certiorari are mutually exclusive, not alternative or successive.
• Grave Abuse of Discretion Defined — Grave abuse of discretion denotes a capricious, whimsical, arbitrary, or despotic exercise of judgment equivalent to lack of jurisdiction. It must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law.
• Promulgation of Judgment; Presence of Counsel Not Required — Under Section 6, Rule 120 of the Revised Rules of Criminal Procedure, the validity of the promulgation of a judgment of conviction does not depend on the presence of defense counsel, provided the accused and counsel were given proper notice. The absence of counsel alone does not prejudice the accused’s substantial rights.
• Elements of Malversation of Public Funds — The prosecution must prove: (1) the offender is a public officer; (2) he had custody or control of funds or property by reason of his office; (3) those funds or property were public funds or property for which he was accountable; and (4) he appropriated, took, misappropriated, or consented or, through abandonment or negligence, permitted another to take them. Direct proof of personal use is not indispensable where an unrebutted shortage is shown.

• “[T]he special civil action of certiorari cannot be used as a substitute for an appeal which the petitioner already lost.”
• “There is nothing in the rules that requires the presence of counsel for the promulgation of the judgment of conviction to be valid. While notice must be served on both accused and his counsel, the latter’s absence during the promulgation of judgment would not affect the validity of the promulgation.”
• “In the crime of malversation, all that is necessary for conviction is sufficient proof that the accountable officer had received public funds, that he did not have them in his possession when demand therefor was made, and that he could not satisfactorily explain his failure to do so. Direct evidence of personal misappropriation by the accused is hardly necessary as long as the accused cannot explain satisfactorily the shortage in his accounts.” (quoting Davalos, Sr. v. People)
• “The presumption is, of course, rebuttable. Accordingly, if the accused is able to present adequate evidence that can nullify any likelihood that he had put the funds or property to personal use, then that presumption would be at an end and the prima facie case is effectively negated. This Court has repeatedly said that when the absence of funds is not due to the personal use thereof by the accused, the presumption is completely destroyed; in fact, the presumption is never deemed to have existed at all.”

• People v. Sandiganbayan, G.R. No. 156394, January 21, 2005, 449 SCRA 205 — Followed for the rule that a special civil action for certiorari cannot be used as a substitute for a lost appeal, and that appeal and certiorari are mutually exclusive remedies.
• Jamilano v. Cuevas, L-33654, July 23, 1987, 152 SCRA 158 — Cited as authority that the presence of counsel at the promulgation of judgment is not required for its validity.
• Ocampo III v. People, G.R. Nos. 156547-51, February 4, 2008, 543 SCRA 487 — Enumerated the elements of malversation of public funds.
• Davalos, Sr. v. People, G.R. No. 145229, April 24, 2006, 488 SCRA 84 — Quoted for the principle that direct evidence of personal misappropriation is not required where the accused cannot satisfactorily explain a shortage in his accounts.

• Article 217, Revised Penal Code — Defines malversation of public funds and establishes the prima facie presumption that failure to have public funds forthcoming upon demand is evidence of personal use. Applied to petitioner as a public officer accountable for the ₱219,392.75 shortage that he failed to explain or liquidate.
• Section 6, Rule 120, Revised Rules of Criminal Procedure — Governs the promulgation of judgment; mandates notice to the accused and counsel but does not require counsel’s presence for a valid promulgation. Invoked to reject the claim that the absence of petitioner’s counsel at the promulgation violated due process.
• Section 7, Presidential Decree No. 1606, as amended by Republic Act No. 8249 — Provides that decisions and final orders of the Sandiganbayan are appealable to the Supreme Court via petition for review on certiorari under Rule 45 raising pure questions of law. Applied to hold that petitioner’s Rule 65 petition was improper.
• Sections 1 and 2, Rule 45, Rules of Court — Require that a petition for review on certiorari be filed within 15 days from notice of the judgment or denial of a timely motion for reconsideration. The 15-day period had expired when petitioner sought relief, rendering the Sandiganbayan’s decision final and executory.

Chief Justice Renato C. Corona (Chairperson), Associate Justice Teresita J. Leonardo-De Castro, Associate Justice Lucas P. Bersamin, and Associate Justice Mariano C. Del Castillo concurred.