G.R. No. L-37561 August 9, 1976
PONCIANO WAGAN, petitioner, vs. THE HONORABLE JOEL P. TIANGCO, Judge, Circuit Criminal Court, Batangas City, and IRINEO V. MENDOZA, Acting District State Prosecutor, Batangas City, respondents.

FACTS

Petitioner Ponciano Wagan was convicted of homicide on June 28, 1973. His original counsel filed a notice of appeal that same day. However, on July 3, 1973, petitioner himself, without informing his counsel, filed a motion to withdraw the appeal. Respondent Judge granted this withdrawal on July 7, 1973. On that same date, July 7, petitioner commenced serving his sentence at the New Bilibid Prisons. Subsequently, on July 13, 1973, a new counsel filed a motion for reconsideration of the June 28 decision, which was denied by the respondent Judge on July 23, 1973, citing the finality of the judgment and the fact that the accused had already started serving his sentence. A second notice of appeal was filed on July 26, 1973, but the respondent Judge, in an order dated August 2, 1973, refused to give it due course, citing the prior withdrawal and the commencement of service of sentence. Petitioner then filed this mandamus proceeding to compel the respondent Judge to allow his appeal.

ISSUE

Whether the respondent Judge committed a grave abuse of discretion in refusing to give due course to the second notice of appeal, thereby justifying the issuance of a writ of mandamus.

RULING

The Supreme Court dismissed the petition for mandamus. The Court ruled that the commencement of service of sentence rendered the judgment final and executory, thereby depriving the trial court of jurisdiction to entertain an appeal. The legal basis is Rule 120, Section 7 of the Rules of Court, which states that a judgment becomes final after the lapse of the period for appeal, when the sentence has been partially or totally served, or when the right to appeal is expressly waived in writing. The Court applied the doctrine established in Hilvano v. Fernandez, which held that a defendant who voluntarily starts serving his sentence is deemed to have accepted the judgment, rendering it final and unappealable from that moment. The Court found that the petitioner voluntarily commenced serving his sentence on July 7, 1973, after his motion to withdraw the appeal was granted. This act constituted an insuperable legal obstacle to any subsequent attempt to appeal. The fact that the original counsel was not notified of the withdrawal was deemed a minor matter without legal consequence on the finality of the judgment. Consequently, the respondent Judge correctly denied the second notice of appeal, as he had lost jurisdiction over the case. Mandamus does not lie to compel a ministerial act when there is no clear legal right to the performance of that act.