G.R. No. 109832 . February 7, 1995.
FERNANDO FORALAN, petitioner, vs. THE HONORABLE COURT OF APPEALS, Former Seventh (7th) Division and the PEOPLE OF THE PHILIPPINES, respondents.

FACTS

Petitioner Fernando Foralan was convicted of qualified theft by the Regional Trial Court on September 29, 1990. He filed a notice of appeal by himself, without counsel. The Court of Appeals sent a Notice to File Brief to the Special and Appealed Cases Division (SAC Division) of the Public Attorney’s Office (PAO) in Manila, requiring the appellant’s brief within 30 days from receipt (until October 5, 1992). The SAC Division received the complete case records from Atty. Arturo S. Diaz of the PAO only on October 5, 1992. The next day, October 6, 1992, the SAC Division filed a Notice of Appearance with a Motion for a Fresh Period of thirty days to file the brief. The Court of Appeals dismissed the appeal via a resolution dated October 15, 1992, for failure to file the brief on time. The SAC Division moved for reconsideration, arguing that the dismissal violated Section 8, Rule 124 of the 1985 Rules on Criminal Procedure, as amended, which requires notice to the appellant before dismissal and contains an exception for appellants represented by counsel de officio. The Solicitor General recommended reinstatement. The Court of Appeals denied the motion, ruling that the filing of the motion for reconsideration cured the lack of prior notice and that petitioner’s PAO lawyers were not counsel de officio but de parte counsel. Petitioner elevated the case to the Supreme Court via certiorari.

ISSUE

Whether the dismissal, upon the Court of Appeals’ own motion, of petitioner’s appeal on the ground that the appellant’s brief was filed out of time was in accord with the provisions of Section 8, Rule 124 of the 1985 Rules on Criminal Procedure, as amended.

RULING

No. The Supreme Court granted the petition. It ruled that the motu proprio dismissal was not proper. Under Section 8, Rule 124, dismissal for failure to file the brief on time requires notice to the appellant. Crucially, the rule contains an exception: dismissal is not allowed when the appellant is represented by a counsel de officio. The Court found that petitioner was indeed represented by a counsel de officio. At the trial court, he was initially assisted by a court-appointed counsel de officio, later substituted by a PAO lawyer. On appeal, although petitioner filed the notice alone, the Court of Appeals itself required the PAO in Manila to file the brief. This act constituted an appointment by the court of a counsel de officio to represent petitioner. Therefore, the exception applied. The Court of Appeals was ordered to reinstate the appeal.