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REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION


REGIONAL TRIAL COURT
BRANCH 268, PASIG CITY
PEOPLE OF THE PHILIPPINES
- versus

RICHARD JACOB Y CALAMOHOY,


MICHAEL MAHUMOT Y ASUELO, Criminal Case No. 153119
JEFFREY COCHING Y TABENGCO For: Qualified Theft
Accused.
x---------------------------------------------------------------------------------------------x

MOTION TO DISMISS
ACCUSED, Jeffrey T. Coching, through the undersigned counsel,
unto this Honorable Court, most respectfully moves for the dismissal of the
above-captioned case on the ground of violation of his right to speedy trial
upon the following arguments:
1. An Information charging the Accused for Qualified Theft was
filed on ________________.
2. Accused was arraigned on ___________ and entered a Not
Guilty plea.
3. The preliminary conference was set on 22 February 2016 while
pre-trial was set on 14 March 2016. Pre-trial conference was
terminated on 17 March 2016. The private complainant failed to
appear during the pre-trial.
4. The first day of trial was set on 12 May 2016 for the prosecution
to present its evidence-in-chief. The prosecution was supposed to
present private complainant Joey Atienza as its first witness.
5. The Accused was present on such date. However, the hearing
was rescheduled on 09 June 2016 due to absence of Mr. Atienza.
6. The scheduled hearing for 9 June 2016 was further reset
because the Honorable Judge was on leave. The Acting Branch Clerk
of Court issued a Constancia, setting the initial presentation of
prosecutions evidence on 16 August and 13 September 2016.
7. On 16 August 2016, the prosecution again failed to present its
witness Joey Atienza. Prosecutor De Asas moved for issuance of a
subpoena to one Dennis M. Rey, the prosecutions supposed second
witness. The Court approved the said motion and rescheduled the
hearing on 13 September and 13 October 2016.
8. The hearing scheduled on 13 September 2016 coincide with
the Strategic Performance Management System for Lower Courts
which the Honorable Judge is required to attend. The Court reset the
initial trial to 13 October and 10 November 2016.
9. On 13 October 2016, the Honorable Judge was attending the
PJA Annual Convention in Baguio City. Despite the cancellation of
hearing the Accused was present while there was no witness for the
prosecution. The hearing was reset to 10 November 2016 and 7
February 2017.
10. The prosecution was supposed to present its new witness
Dennis M. Rey on 10 November 2016 hearing. Despite due notice,
Mr. Rey failed to appear in court.
11. In the same hearing, the undersigned counsel moved for the
dismissal of the case. The Honorable Court however denied said
motion but manifested that if witness for the prosecution is absent
again on 7 February 2017, it will dismiss the case.
ARGUMENTS/DISCUSSION
12. The Rules of Court require that the accused be brought to trial
30 days from termination of the pre-trial. (Sec. 1, Rule 119: The trial shall
commence within thirty (30) days from receipt of the pre-trial order. ) This rule is based on the

Speedy Trial Act which upholds the constitutional right of an accused


to speedy trial (Sec.14(2), Article III, Philippine Constitution) and
speedy disposition his cases (Sec. 16, Article III, Philippine
Constitution).
13. The arraignment of an accused shall be held within thirty
(30) days from the filing of the information, or from the date the
accused has appeared before the justice, judge or court in which the
charge is pending, whichever date last occurs. Thereafter, where a
plea of not guilty is entered, the accused shall have at least fifteen
(15) days to prepare for trial. Trial shall commence within thirty (30)
days from arraignment as fixed by the court.3
14. The pre-trial order dated ______ was received by the
accused on _______________. At most, the accused should have
brought to trial on or before _________(PLEASE COUNT 30 DAYS
FROM RECEIPT OF PRETRIAL ORDER).
15. Initial trial has not commenced despite several resetting.
One reason is attributed to prosecutions fault. Prosecution was not
able to present its witnesses on dates of scheduled hearing.
16. The prosecutions witnesses constantly failed to appear despite
notice and no other attempt on the part of the prosecution to compel
the attendance of its witnesses. Hence, the witnesses presence for
trial cannot be obtained due to the absence of diligence on the part of
the prosecution.
17. The Accused was not brought to trial for Qualified Theft, without
any fault on his part, for more than a year since he had been arrested
and for more than 30 days since the termination of pre-trial in
violation of the Speedy Trial Act of 1998 (RA No. 8493) and the
Supreme Court Circular (SCC) No. 38-98, during which time the
complainant failed to prosecute his action.
18. Hence the dismissal of the information is proper in pursuant to
Sec. 9, Rule 119 of the Rules of Court in relation to Rule 119, Section
6 of the Rules. (redundant? Meron na sa par. 20 hehe)
19. The Supreme Court, in the case of Mari v. Hon. Gonzales,
upheld the dismissal of the case against accused Rudyard Paloma
for prosecutions failure to commence trial within the period provided
for under Sec.1, Rule 119.
The records reveal that the 30-day time limit set by Section 1, Rule 119 of the
Rules of Court had, in fact, already been breached. The private prosecutor received
the Pre-trial Order dated November 24, 2008 on December 3, 2008, while the
Provincial Prosecutor received the same on December 2, 2008. This means that at
the latest, trial should have commenced by January 2, 2009, or if said date was a
Sunday or holiday, then on the very next business day. Yet, because of the
prosecution's failure to appear at the December 12, 2008 hearing for the initial
presentation of the prosecution's evidence, the RTC was constrained to reset the
hearing to January 16, 2009, which is already beyond the 30-day time limit.
Nevertheless, the prosecution again failed to appear at the January 16, 2009
hearing. Indeed, as aptly observed by the RTC, petitioners showed recalcitrant
behavior by obstinately refusing to comply with the RTC's directives to commence
presentation of their evidence. (G.R. No. 187728, Sept 12, 2011)
20. As such, Accused is entitled to move for the dismissal of the
case for violation of his constitutional right to speedy, public and
impartial trial. Hence, the Accused prays for his acquittal from the
crime charged.
21. This=

PRAYER
WHEREFORE, premises considered, Accused Jeffrey T. Coching,
respectfully prays for the permanent dismissal of the case.
Other reliefs just and equitable are likewise prayed for.
Pasig City, Philippines. 7 February 2017.

SAN BEDA COLLEGE ALABANG


LEGAL AID CENTER
Room 12E8, St. Benedict Building
8 Don Manolo Blvd., Alabang Hills Village
Alabang, Muntinlupa City 1771

BY:

Jenina Marie Bernadette Roque


Legal Intern

Rizzele Dadole
Legal Intern

ATTY. ANAMARIE V. GONZALEZ


Supervising Lawyer
Roll No. 41032
IBP ________ - (mm/dd/yyyy)
PTR No. _____________
MCLE Compliance No. V-0023314/08-05-15
NOTICE OF HEARING
Honorable Branch Clerk of Court
RTC Branch 268, Pasig City
Greetings of peace!
Please be notified that the undersigned will submit the foregoing Motion to
Dismiss for the consideration and approval of the Court on ___ February
2017 at 1:30 in the afternoon.
LEGAL AID CENTER

Copy furnish:

Prosecutor ______________