REPUBLIC OF THE PHILIPPINESSANDIGANBAYAN

QUEZON CITY

PEOPLE OFPHILIPPINES,

Criminal Case No. SB-17-CRM-Ol18For: Malversation of PublicFunds (Article 21 7, RevisedPenal Code)

GRACE P. DAGADAG, et. atAccused.

1[---------------------------------------1[ CABOTAJE-TANG, P.J.,ChairpersonFERNANDEZ, SJ., J. andFERNANDEZ, B., J.

For resolution is the prosecution's Motion to AdmitAmended Information dated April 21, 2017.1

In its subject motion, the prosecution seeks to amend theInformation as fOllOWR

ResolutionCriminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

a. To effect changes in the caption of the Information (1) toindicate the respective middle names of the accused; (2)to change "Complainant" to "Plaintiff;" and to change"Respondent" to "Accused;"

b. To change the date of commission of the offense from"29 September 2009" to "during the period October2001 to June 2004;"

c. To include the element of accused Dagadag being anaccountable officer having custody or control over themunicipal funds of Tanudan, Kalinga which are publicfunds in the allegations of the Informations;

d. To change the total amount of unliquidated cashadvances from Php5,671,520.87 to Php5,661,148.87;and

e. To effect minor changes in the phraseology of theallegations of the Information.

In her Comment/ Opposition, accused Dagadag opposesthe subject motion insofar as the amendments to (1) includethe elements of malversation that accused, is an accountableofficer,having custody or control of the public funds by reasonof the duties of her office;and, (2) effect minor changes in thephraseology of the allegations of the Information areconcerned. She argues that the amendment to include one ofthe element of malversation is substantial and prejudicial toher. She contends that without the element of "being anaccountable officer," the Information filed is void ab initio.Thus, she claims that the Court never acquired jurisdictionover the subject matter of the case. In support of the saidclaim, she invokes Leviste vs. Alameda,2 where the SupremeCourt held that a void Information cannot be amended toobviatea ground for quashal and that an amendmentW/7

----/}J/.2 626 seRA 575 (2010) . 0tJ. _

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ResolutionCriminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

operates to vest jurisdiction upon the trial court IS likewiseimpermissible.3

The Court finds the motion to admit AmendedInformation meritorious.

Section 14, Rule 110 of the Revised Rules of Court laysdown the procedure for the amendment of a criminalInformation:

Section 14. Amendment or substitution. - Acomplaint or information may be amended, in formor in substance, without leave of court, at any timebefore the accused enters his plea. After the plea andduring the trial, a formal amendment may only be madewith leave of court and when it can be done withoutcausing prejudice to the rights of the accused.4

However, any amendment before plea, whichdowngrades the nature of the offense charged in orexcludes any accused from the complaint orinformation, can be made only upon motion by theprosecutor, with notice to the offended party and withleave of court. The court shall state its reasons inresolving the motion and copies of its order shall befurnished all parties, especially the offended party.

If it appears at any time before judgment that amistake has been made in charging the proper offense,the court shall dismiss the original complaint orinformation upon the filing of a new one charging theproper offense in accordance with section 19, Rule 119,provided the accused shall not be placed in doublejeopardy. The court may require the witnesses to givebail for their appearance at the ~

3 pp. 323-326, Record4 emphasis supplied

ResolutionCriminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

To be sure, the accused has not yet been arraigned.Under Section 14, the prosecution is given the right to amendthe information, regardless of the nature of the amendment, solong as the amendment is sought before the accused entershis plea, subject to the qualification under the secondparagraph of Section 14.5 Thus, the amendment to includethe element of malversation that the accused are accountableofficers having custody or control over the funds of themunicipality, is allowed.

Accused Dagadag, however, insists that the saidproposed amendment is prejudicial to her and is notpermissible because it operates to vest jurisdiction upon theCourt. She cites the following declaration of the SupremeCourt in the Leviste case which cited Agustin vs.Pamintuan:6

It must be clarified though that not all defects inan information are curable by amendment prior to entryof plea. An information which is void ab initio cannot beamended to 0bviate a ground for quashal. Anamendment which operates to vest jurisdiction upon thetrial court is likewise impermissible.?

The above declaration, however, has been pronounced anobiter dictum by the Supreme Court in the recent case of Diovs. People.8 The High Court further declared that the casescited therein do not involve amendment before

arraignme/-74:~

5 Mendez V5. People, 726 SCRA203 (2014)6467 SCRA601 (2005)7 Agustin v. Pamintuan, 467 SCRA 601 (2005), involving the substantial defect of failure to allege in theInformation for Libel the place either where the offended party actual resided at the time the offense wascommitted or where the libelous article was printed or first published.8 G.R. Nos. 208146, June 8, 2016

ResolutionCriminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

In this case, petitioner Virginia Dio has not yetbeen arraigned; thus, Rule 117, Section 4 of the Rulesof Court applies. If the information is defective, theprosecution must be given the opportunity to amend itbefore it may be quashed.

Petitioner claims that Rule 117, Section 4 of theRules of Court applies only to informations that can becured by amendment. She argues that before a courtorders that an amendment be made, or otherwise givesthe prosecution an opportunity to amend aninformation, it must first establish that the defectiveinformation can be cured by amendment.

Petitioner relies on Agustin to argue theproscription of an amendment of an information inorder to vest jurisdiction in the court. This is misplaced.

In Agustin, the accused in the criminal case wasalready arraigned under a defective information thatfailed to establish venue. The Court of Appeals held thatthe defect in the information was merely formal and,consequently, could be amended even after plea, withleave of court. Thus, this Court held:

We do not agree with the ruling of theCA that the defects in the Informations aremerely formal. Indeed, the absence of anyallegations in the Informations that theoffended party was actually residing inBaguio City, where the crimes charged wereallegedly committed, is a substantial defect.Indeed, the amendments of the Informationsto vest jurisdiction upon the court cannot beallowed.

In turn, Agustin cited Agbayani v. Sayo. However,Agbayani does not involve the amendment of a defectiveinformation before or after arraignment. Subsequentcases have cited Agustin as basis that amendment of aninformation to vest jurisdiction in the trial court isimpermissible. Thus, in Leviste, this CO)..lrtcited Agustinand stated that certain amendments are impermissibleeven before arraignme/7

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ResolutionCriminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

It must be clarified though that not alldefects in an information are curable byamendment prior to entry of plea. Aninformation which is void ab initio cannot beamended to obviate a ground for quashal. Anamendment which operates to vestjurisdiction upon the trial court is likewiseimpermissible.

It may appear that Leviste supports petitioner'scontention that an amendment operating to vestjurisdiction in the trial court is impermissible. However,the statement in Leviste was obiter dictum. It cites onlyAgustin, which did not involve the amendment of aninformation before arraignment.

Aside from obiter dictum in jurisprudence,petitioner provides no legal basis to reverse the Court ofAppeals' determination that the defective informationsmay be amended before arraignment. Although thecases petitioner cited involved defective informationsthat failed to establish the jurisdiction of the court overthe libel charges, none involved the amendment of aninformation before arraignment. Thus, these cannot becontrolling over the facts of this case.

Similar to the Dio case, the accused had not beenarraigned in this case. Thus, the prosecution may amendthe Information, whether the amendments proposed aresubstantial or mere formal amendments, without leave ofCourt.

WHEREFORE, the Motion to Admit Amended Informationdated April 21, 2017 filed by the prosecution is GRANTED andthe Amended Information is ADMITTED.

Set the arraignment of the accused on August 2, 2017 at1:30 in the afterno~¢~

Resolution ,Criminal Case No. SB-17-CRM-Ol18People vs. Dagadag, et. al.

ITO R. FERNANsociate Justice