G.R. No.

152279, January 20, 2004

PEOPLE OF THE PHILIPPINES, Appelle,
vs.
FRANCO BALLESTER, Appellant.

FACTS:
Sometime in the third week of January 1999, around noontime, complainant
Maricel Odoño, twelve years old, while studying her school lessons, one Franco
Ballester, herein appellant, entered her house holding a knife and threatened
complainant not to make a noise. He warned her not to tell her parents or he would
kills her. He forcibly undressed the complainant, mounted her on the floor and
inserted his penis into her vagina. After satisfying his lust, appellant repeated his
warning not to tell anybody about the incident. It took six months for complainant
to have mustered enough courage to reveal to her family this harrowing
experience.
Trial ensued and appellant Ballester was charged with the crime of rape. On
December 14, 2001, the trial court rendered judgement finding appellant guilty as
charged and sentencing him to suffer supreme penalty of death. Thereafter,
appellant assails this verdict.

ISSUE:
Whether or not the trial court erred in imposing the maximum penalty.

RULING:
Yes. In imposing maximum penalty of death, the trial court took into
account the absence of a mitigating circumstance and the presence of one
aggravating circumstance of dwelling. This is clearly erroneous. Not being alleged
in the information, dwelling cannot be properly considered in determining the
imposable penalty. It would be a denial of appellant’s right to be informed of the
charges against him which would amount to a denial of due process if he were to
be meted the death penalty on the basis of a qualifying circumstance not alleged in
the information. Rule 110, Section 8 of the Revised ROC on Criminal Procedure
provides that the complaint or information shall state the designation of the offense
given in the statute, aver the acts or omissions constituting the offense, and specify
its qualifying and aggravating circumstance. The information in the instant case
alleges that the appellant committed rape by means of force, threat and
intimidation and while armed with a knife, he was indicted for rape qualified with
the use of deadly weapon.
Since the trial court made a categorical finding that the crime was committed
with the use of deadly weapon, there is need to replace dwelling with the use of
deadly weapon. Being in the nature of a qualifying circumstance, use of deadly
weapon increases the penalties by degrees. This is so-called qualified form of rape
with the use of deadly weapon carries a penalty of reclusion perpetua to death. As
such, the presence of generic aggravating and mitigating circumstance will
determine whether the lesser or higher penalty shall be imposed. In this case,
neither mitigating nor aggravating circumstance attended the commission of rape.
Hence, the minimum penalty, reclusion perpetua, should be the penalty imposable
pursuant to Artice 63 of the RPC.