169253

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31\epublic of tbe ~bilippines
~upreme

QCourt

manila
SECOND DIVISION

PACIFICO C.

VI~LASCO,

G.R. No. 169253

Petitioner.
Present:
CARPIO,.!.,
Chairperson,
13RION,
DFL CAST! LLO.
PIJ~FZ, and
PI~RI ,AS-BFRNABI'.. .!.!.

-1 '<" rs us-·

TilE liON. SANDIGANBAYAN (Fifth
Division) and TIIF: PF:OPLI~ OF THE
P Jill> I P PIN I~S,

Respondents.

Promulgated:

FEB 2 o 2DIJ M_~~\1ul,19

x --------------------------------------------------------------------------------------- ,x~·
DI,~CISION

PERI~Z,

.J.:

In this petition lcJr cerri1n:ari under Rule 65 or the Rules or Court.
petitioner alleges grave abuse or discretion Oil the part or the Fi tth Di\ is ion
or the Sandiganbayan for issuing the Resolution' dated 9 June :2005 denying
his motion for reinvestigation and the subsequent Resolutionl dated 15
August 2005, denying his motion for reconsideration in Criminal Case No.
2R097.

The antecedents l'ollmv.

l't:lliJCci h\' ,1\-,<;oci~lll' .Justice ~1a. Crist ill;! (i. Cortc/-l·:strada \1 itlt ;\ssnciatc Jttsticcs l~ol;mcl
Jurado arrd Jcrcsita V J)i;u-l~alclos. cotJCttrrinQ_. Sandiganha1a11 milo. pp. J(J-~"
ld. iii

.~h-."7.

n

Decision

2

G.R. No. 169253

Philip Corpus Velasco, then Mayor of the Municipality of Bacarra in
Ilocos Norte, filed an Affidavit-Complaint against his predecessor, petitioner
Pacifico C. Velasco, containing the following pertinent allegations:
1. On 21 September 1998, the Sangguniang Bayan of Bacarra passed
Resolution No. 98-065 entitled “RESOLUTION GRANTING
AUTHORITY TO THE LOCAL CHIEF EXECUTIVE, HON.
PACIFICO C. VELASCO TO PURCHASE ONE (1) UNIT ROAD
GRADER-KOMATZU G-D 31 TO BE USED BY THE
MUNICIPALITY OF BACARRA FOR THE MAINTENANCE OF
MUNICIPAL AND BARANGAY ROADS”, the dispositive portion of
which reads as follows, to wit:
xxx
“HEREBY RESOLVED to grant authority to the Local Chief
Executive, Hon. Pacifico C. Velasco to purchase one (1) unit of
Road Grader-KOMATZU GD 31 to be used by the
Municipality of Bacarra for the maintenance of municipal and
barangay roads.”
xxx
xxxx
2. Shortly thereafter, on 20 October 1998, a Disbursement Voucher was
issued in favor of PACIFICO C. VELASCO for the amount of
P670,000.00 “To cash advance the amount of SIX HUNDRED
SEVENTY THOUSAND PESOS (P670,000.00) for the purchase of
one (1) Road Grader to be used by municipality per L[BP] Check No.
106353 dated 10-13-98. x x x.
3. After the election of May 14, 2001, and after the turn-over, it was
found out during the inventory of municipal properties that the Road
Grader was nowhere to be found. x x x.
4. In fact, a Joint Certification was issued by the Office of the Treasurer
that there was NO ROAD GRADER-KOMATZU GD 30 (sic)
OWNED BY THE MUNICIPALITY OF BACARRA, x x x.
5. It was discovered later that sometime on 29 December 1998,
PACIFICO C. VELASCO allegedly made a refund of the afore-stated
amount to the Municipal Treasurer x x x.
xxxx
8. Despite the alleged refund made by PACIFICO C. VELASCO, he hired
the services of a certain Bernardo J. Bernardo (sic) as Heavy Equipment
Operator I, SG-4 on 16 August 2000, x x x.

Decision

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G.R. No. 169253

9. Despite the alleged refund made by PACIFICO C. VELASCO, several
Requests for Pre-Repair inspections, Job orders and corresponding
Disbursement Vouchers were made for “repairs, spare parts, etc. of a
Komatzu GD 30, Road Grader, x x x.
xxxx
17. From the foregoing statement of facts, as supported by documentary
evidences, I am accusing former mayor Pacifico C. Velasco now
Provincial Board Member of Ilocos Norte and the Municipal Treasurer of
Bacarra, Ilocos Norte, Lorna S. Dumayag, for violation of the Anti-Graft
Law and the Revised Penal Code as amended for using public funds in the
amount of Six Hundred Seventy Thousand Pesos (P670,000.00) in the
purchase of a Road Grader that [was] subsequently appropriated by former
mayor Pacifico C. Velasco as his personal property.3

In his Counter-Affidavit, petitioner branded the filing of the
Complaint as politically motivated. He admitted requesting for a cash
advance from the municipality for the purpose of acquiring the road grader,
which was subsequently utilized by the municipality to repair and maintain
roads. When the expected funds from the national government were not
released, petitioner was faced with the problem of liquidating said cash
advance. Thus, he was forced to mortgage the road grader just so he could
reimburse the municipality in the sum of P670,000.00. Petitioner justified
the need for replacement of spare parts and/or necessary repairs to be paid
out of municipal funds because the municipal government was using the
road grader from October 1998 up to the end of his term in June 2001. He
also defended the appointment of Bernardo Bernardino (Bernardino), who
was initially employed as a casual employee and made permanent six (6)
months later. According to petitioner, Bernardino was an all-around heavy
equipment operator and was not solely assigned as operator of the subject
road grader.4
On 11 December 2002, the Office of the Deputy Ombudsman for
Luzon issued a Resolution dismissing the Complaint for lack of probable
cause. Then Acting Mayor Nicomedes C. Dela Cruz (Acting Mayor Dela
Cruz) moved for reconsideration on 15 October 2003. A Motion to Strike
Out the Motion for Reconsideration was filed by petitioner for lack of locus
standi.5 In an Order dated 13 February 2004, the Office of the Deputy
Ombudsman for Luzon denied the motion for reconsideration.

3
4
5

Id. at 58-60.
Records, pp. 43-50.
Id. at 162-165.

Decision

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G.R. No. 169253

However, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), Orlando Casimiro, pursuant to the
authority6 given by Ombudsman Simeon Marcelo, directed the Office of
Legal Affairs to review the case. On 8 July 2004, the Office of Legal Affairs
recommended that petitioner be indicted for technical malversation. The
Office of Legal Affairs found that while the Sangguniang Bayan authorized
the purchase of a road grader, no sum was appropriated for its purchase. The
source of the funding of the P670,000.00 cash advance came from the
municipality’s funds for personal services, which were originally
appropriated for salaries of municipal employees.7
Upon receipt of the Memorandum-Resolution, petitioner filed an
Omnibus Motion (Motion for Reconsideration with Prayer to Hold in
Abeyance the Filing of Information) citing the failure of the 13 February
2004 Order to consider his Motion to Strike Out the Motion for
Reconsideration filed by Acting Mayor Dela Cruz. Petitioner also argued
that not all elements constitutive of technical malversation were present.
On 16 February 2005, the Office of the Special Prosecutor issued a
Memorandum denying the Omnibus Motion. A revised/modified
Information was filed with the Sandiganbayan charging petitioner of the
crime of Illegal Use of Public Funds under Article 220 of the Revised Penal
Code, committed, thus:
That on or about 20 October 1998 and sometime prior or
subsequent thereto, in the Municipality of Bacarra, Ilocos Norte,
Philippines, within the jurisdiction of this Honorable Court, the accused
PACIFICO C. VELASCO, a high-ranking public official, being then the
Mayor of the aforesaid municipality and as such is accountable for public
funds received by or entrusted to him by reason of the duties of his office,
while in the performance and taking advantage of his official and
administrative functions, did then and there wilfully, unlawfully and
feloniously apply or misapply the amount of SIX HUNDRED SEVENTY
THOUSAND PESOS (P670,000.00), Philippine Currency, under his
administration to a public use other than that for which such fund was
originally appropriated by law or ordinance, when the accused cash
advanced the said amount of SIX HUNDRED SEVENTY THOSUAND
PESOS (P670,000.00) under Disbursement Voucher No. 101-98-10-037
which amount was appropriated or intended for the payment of personal
services for the municipal employees of the local government of Bacarra,
particularly for their salaries, 13th month pay and other benefits, and
utilized the said amount to purchase one (1) unit road grader but was never
6

7

Per Memorandum dated 9 September 2003, delegating the authority of the Ombudsman to the
undersigned to act on this matter with finality. Sandiganbayan rollo, p. 84.
Id. at 81-82.

Decision

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G.R. No. 169253

recorded as property of the above-named Municipality, and thereafter,
accused mortgaged said road grader to private individuals without
authority from the Sangguniang Bayan of Bacarra, Ilocos Norte, thereby
resulting to the damage and embarrassment to the public service as the
public was made to believe that the road grader purchased by the accused
was public property for use of the municipal government and its
constituent barangays.8

On 18 March 2005, petitioner moved for a reinvestigation of the case
before the Sandiganbayan. According to petitioner, the Office of the Special
Prosecutor, without conducting a preliminary investigation, indicted him not
for the offense of which he was charged but for another offense, hence
violating his right to due process.
On 9 June 2005, the Sandiganbayan issued a Resolution denying the
motion for reinvestigation for lack of merit. The Sandiganbayan found that
petitioner had already filed a motion for reconsideration assailing the 8 July
2004 Memorandum. The Sandiganbayan considered the filing of this
motion for reconsideration as compliance with the due process requirement.
The Sandiganbayan added that since petitioner had already filed a motion for
reconsideration, he is no longer entitled to move for a second
reconsideration pursuant to the Rules of Procedure of the Office of the
Ombudsman which prohibits the filing of such motion. The Sandiganbayan
refuted petitioner’s claim that the offenses charged against him in the
complaint are different from the offense charged in the information. The
Sandiganbayan countered that the complaint and the information are based
on substantially the same factual settings except that the respective
designations are different.
On 15 August 2005, the Sandiganbayan issued a Resolution denying
for lack of merit petitioner's motion for reconsideration.
Petitioner submits in support of his petition that:
THE RESPONDENT COURT ACTED WITHOUT JURISDICTION OR
IN EXCESS THEREOF, OR AT THE VERY LEAST, GRAVELY
ABUSED ITS DISCRETION, IN NOT ORDERING THE
REINVESTIGATION OF THE CASE OR, TO BE MORE PRECISE, A
PRELIMINARY INVESTIGATION, AFTER THE OFFICE OF THE
SPECIAL PROSECUTOR FILED AN INFORMATION AGAINST THE
HEREIN
PETITIONER
BASED
ON
A
MOTION
FOR
RECONSIDERATION FILED, NOT BY THE COMPLAINANT
8

Id. at 97-98.

Decision

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G.R. No. 169253

THEREIN, BUT BY ANOTHER PERSON WHO IS NOT A PARTY
AND THEREFORE, A STRANGER IN THE CASE, AND
THEREAFTER, INSTEAD OF MERELY ACTING ONLY ON THE
ISSUES AND GROUNDS RAISED IN THE SAID MOTION, THE
OFFICE
OF
THE
SPECIAL
PROSECUTOR,
WITHOUT
CONDUCTING A PRELIMINARY INVESTIGATION ON THE
PURPORTED OFFENSE OF WHICH THE HEREIN PETITIONER IS
NOW INDICTED, ISSUED INSTEAD, THE MEMORANDUM DATED
FEBRUARY 16, 2005, WHICH NOW INDICTS THE HEREIN
PETITIONER NOT FOR THE OFFENSE OF WHICH HE IS
CHARGED BUT FOR ANOTHER OFFENSE, THEREBY
BLATANTLY VIOLATING THE PETITIONERS’ SUBSTANTIAL
RIGHT TO DUE PROCESS, RENDERING THE RESPONDENT
COURT’S ASSAILED RESOLUTIONS AS NULL AND VOID.9

Petitioner, in the main, assails the denial of his motion for
reinvestigation on two (2) grounds: 1) he was denied the right to file a
motion for reconsideration of the 16 February 2005 Office of the Special
Prosecutor’s Memorandum, recommending his indictment for Technical
Malversation under Article 220 of the Revised Penal Code, and 2) he was
indicted for an offense that was not originally charged in the criminal
complaint against him.10
We briefly review the material facts. A complaint for malversation
and violation of the Anti-Graft and Corrupt Practices Act was filed by then
Mayor Philip Velasco against former Mayor Pacifico Velasco, now
petitioner. The Office of the Deputy Ombudsman for Luzon dismissed the
complaint for lack of probable cause. Then Acting Mayor Dela Cruz moved
for reconsideration. Petitioner filed a motion to strike out the pleading
grounded on the lack of legal personality of Acting Mayor Dela Cruz to file
the motion. The Office of the Deputy Ombudsman for Luzon eventually
denied the motion for reconsideration. However, upon instructions of the
Deputy Ombudsman for MOLEO, the Director of the Office of Chief Legal
Counsel, after reviewing the case, recommended the filing of an Information
for Technical Malversation. Petitioner, thus, filed an Omnibus Motion for
Reconsideration. The Office of the Special Prosecutor denied petitioner’s
motion and filed the Information for technical malversation before the
Sandiganbayan.
Indeed, the recital of facts reveals that petitioner filed a motion for
reconsideration, which he labelled as “Omnibus Motion (Motion for
Reconsideration with Prayer to Hold in Abeyance Filing of Information)” on
9
10

Id. at 16.
See Sandiganbayan Resolution dated 9 June 2005. Id. at 48.

Decision

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G.R. No. 169253

15 October 2003. A perusal of the Omnibus Motion shows that petitioner
anchored his motion for reconsideration on two (2) grounds – first, the legal
incapacity of the Vice-Mayor to file a motion for reconsideration of an
earlier Order by the Office of the Deputy Ombudsman for Luzon, dismissing
the complaint against petitioner; and second, some elements of the crime of
technical malversation were lacking in the complaint.
Thus, it is incorrect for petitioner to insist that he was denied the right
to file a motion for reconsideration of the Order of the Special Prosecutor.
Records prove that it was Special Prosecutor Dennis Villa-Ignacio who
deputized the Deputy Ombudsman for MOLEO to act on the case with
finality. Pursuant to this authority, the Deputy Ombudsman for MOLEO
approved the Memorandum-Resolution dated 8 July 2004 indicting
petitioner. Thus, this Memorandum-Resolution proceeds from the authority
of the Special Prosecutor and is virtually his own memorandum. So when
petitioner filed an Omnibus Motion for Reconsideration, he was effectively
appealing a Memorandum issued by the Office of the Special Prosecutor.
The filing of another motion for reconsideration constitutes a prohibited
pleading. Under Section 7 of the Rules of Procedure of the Office of the
Ombudsman, “Only one motion for reconsideration or reinvestigation of an
approved order or resolution shall be allowed, x x x.”
In an apparent attempt to mislead, petitioner brings up the alleged
incapacity of Acting Mayor Dela Cruz to file a motion for reconsideration
pertaining to the earlier 13 February 2004 Resolution which dismissed the
complaint against him. This argument cannot prosper. The issue has already
been resolved. In fact, the Office of the Ombudsman for Luzon dismissed
the complaint against petitioner. The purported legal incapacity of Acting
Mayor Dela Cruz, therefore, bears no relevance to the indictment on hand.
At any rate, Acting Mayor Dela Cruz, in fact, did possess the legal capacity
to file the motion on behalf of the local government unit he represented.
Under Section 46 of the Local Government Code, the vice-mayor
automatically assumes the powers and duties of the mayor in case of the
latter’s temporary absence, thus:
SEC. 46. Temporary Vacancy in the Office of the Local Chief
Executive. - (a) When the governor, city or municipal Mayor, or punong
barangay is temporarily incapacitated to perform his duties for physical or
legal reasons such as, but not limited to, leave of absence, travel abroad,
and suspension from office, the vice-governor, city or municipal vicemayor, or the highest ranking sangguniang barangay member shall
automatically exercise the powers and perform the duties and functions of
the local chief executive concerned, except the power to appoint, suspend,

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G.R. No. 169253

or dismiss employees which can only be exercised if the period of
temporary incapacity exceeds thirty (30) working days.

In fact, Acting Mayor Dela Cruz explained that at that time he filed
the motion, Mayor Philip Velasco was “on official vacation leave and out of
the country.”11 It is likewise incontrovertible that Mayor Philip Velasco
instituted the complaint in his capacity as then Mayor of Bacarra, Ilocos
Norte. Petitioner premises his challenge on legal standing on the mere
failure of the complainant to state in his complaint that he was suing on
behalf of the municipality. His argument is specious. As correctly asserted
by Mayor Philip Velasco in his Comment/Opposition to the Motion to Strike,
the property sought to be recovered in the complaint will revert to the
municipality and not to him.12
We likewise find no merit in petitioner's contention that he was
deprived of due process because while the accusation in the information was
for technical malversation, the crime charged in the complaint was for
malversation and violation of the Anti-Graft and Corrupt Practices Act.
The Court had the occasion to rule on this issue in Pilapil v.
Sandiganbayan.13 Petitioner therein was accused of malversation under
Article 217 of the Revised Penal Code before the Ombudsman for failing to
deliver the ambulance that he had received on behalf of the municipality.
The complaint for malversation was initially dismissed for lack of probable
cause, but petitioner was later on charged for violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act. Petitioner decried lack of due process
because there was no preliminary investigation conducted on the offense of
which he was being charged in the Information. The Court held otherwise,
thus:
Petitioner loses sight of the fact that preliminary investigation is
merely inquisitorial, and it is often the only means of discovering whether
a person may be reasonably charged with a crime, to enable the prosecutor
to prepare his complaint or information. The preliminary designation of
the offense in the directive to file a counter-affidavit and affidavits of one's
witnesses is not conclusive. Such designation is only a conclusion of law
of Deputy Ombudsman Domingo. The Ombudsman is not bound by the
said qualification of the crime. Rather, he is guided by the evidence
presented in the course of a preliminary investigation and on the basis of
which, he may formulate and designate the offense and direct the filing of
the corresponding information. In fact, even the designation of the offense
11
12
13

Id. at 69.
Records, p. 167.
G.R. No. 101978, 7 April 1993, 221 SCRA 349.

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G.R. No. 169253

by the prosecutor in the information itself has been held inconclusive, to
wit:
[t]he real nature of the criminal charge is determined not from the
caption or preamble of the information nor from the specification
of the provision of law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the
complaint or information . . . it is not the technical name given by
the Fiscal appearing in the title of the information that determines
the character of the crime but the facts alleged in the body of the
Information.14

What matters is compliance with due process during the preliminary
investigation. That was accorded to petitioner. Due process is satisfied
when the parties are afforded fair and reasonable opportunity to explain their
side of the controversy or an opportunity to move for a reconsideration of
the action or ruling complained of.15 As aptly pointed out by the Court of
Appeals, “Mr. Velasco was properly informed of the acts for which he was
being investigated and later charged. He participated actively in the
preliminary investigation and in fact, was given ample opportunity to
buttress the allegations against him when he filed his counter-affidavit and
submitted evidence on his behalf.”16 Upon issuance of the Memorandum
indicting petitioner, petitioner even filed the corresponding motion for
reconsideration. Thus, petitioner was given all avenues to present his side
and refute all allegations against him. He was accorded, and he availed of,
due process.
After the preliminary investigation compliant with due process, the
Ombudsman, guided by the evidence presented during the preliminary
investigation formulates and designates the offense. The Ombudsman did so
in this case. The formulation of the offense depends on the evidence
presented, not on the conclusionary designation in the complaint.
In all, we see no grave abuse of discretion on the part of the
Sandiganbayan in denying the motion for reinvestigation.
WHEREFORE, the instant petition for certiorari is DISMISSED for
lack of merit.

14
15

16

Id. at 356-357 (internal citation omitted).
Redulla v. Sandiganbayan (First Division), 545 Phil. 711, 723 (2007) citing Roxas v. Hon.
Vazquez, 411 Phil. 276, 287 (2001).
Sandiganbayan rollo, p. 55.

]()

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SO

(i.R No. lil
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