Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated APR 02 2003.

G.R. No. 108871 (People vs. Gerry Ballabare and Eder Ballabare, accused; Gerry Ballabare, accused-appellant.)

For consideration is the “Urgent Motion for Modification of Judgment,” dated August 14, 2002, filed by appellant Gerry Ballabare invoking the benefit of § 1, par. 3 of Republic Act No. 8294 (amending P.D. No. 1866), which provides that “If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as an aggravating circumstance.”

In his comment, the Solicitor General states that insofar as it will spare appellant from a separate conviction for the crime of illegal possession of firearms, R.A. No. 8294 may be given retroactive application in this case.

On November 19, 1996, this Court affirmed with modification the judgment of the Regional Trial Court, Branch 50, Palawan and Puerto Princesa City, and found appellant guilty of (1) one count of homicide, sentencing him to an indeterminate term of 12 years of prision mayor, as minimum, to 20 years of reclusion temporal, as maximum, and ordering him to pay the heirs of the deceased Leonardo Tacadao, Jr. the amount of P50,000.00 as indemnity and (2) violation of P.D. No. 1866, sentencing him to reclusion perpetua. This decision became final on February 19, 1997 and the records were remanded to the trial court on April 11, 2002. Congress subsequently enacted R.A. No. 8294 which took effect on July 6, 1997.

Appellant contends that with the amendment of P.D. No. 1866 by R.A. No. 8294, § 1, par. 3, he should be “spared” the separate conviction for illegal possession of firearm under P.D. No. 1866.

The motion must be denied. Art. 22 of the Revised Penal Code provides that “Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same.” This provision cannot be applied to this case. As held in Directo v. Director of Prisons, 56 Phil 692, 695 (1932), Art. 22 of the Revised Penal Code does not authorize a court whose sentence has become final and executory to make a substantial amendment, and any amendment made in such sentence, though it be to give effect to a penal provision favorable to the accused, would be null and void for lack of jurisdiction and the only means of giving retroactive effect to a penal provision favorable to the accused when the trial judge has lost jurisdiction over the case, is the writ of habeas corpus. A petition for the issuance of a writ of habeas corpus to question the correctness of a judgment by giving retroactive application to a penal law will lie only if the convict had already served the maximum sentence conformably with the applicable penalty provided under the law sought to be retroactively applied; otherwise, the petition will be dismissed for prematurity (Angeles v. Director of New Bilibid Prisons, 240 SCRA 49 (1995); Directo v. Director of Prisons, 56 Phil. 692 (1932)).

It is not clear when appellant was first detained, although it is certain that he was received in the New Bilibid Prisons in Muntinlupa City on September 6, 1993. However, even if his period of detention is reckoned from November 1990 when the informations against him were filed in the trial court (and assuming he was immediately arrested and remained in detention thereafter), appellant has served time for nearly 13 years only. Thus, even if the Court treats appellant’s motion in question as a petition for habeas corpus and gives retroactive application to R.A. No. 8294 in his favor such that the case for illegal possession of unlicensed firearm against him is dismissed and his conviction therefor is set aside, the petition still has to be dismissed for prematurity because appellant has not yet served the maximum of his penalty for homicide of 20 years of reclusion temporal.

WHEREFORE, the Court RESOLVED to DENY the motion, dated August 14, 2002, of appellant Gerry Ballabare, for lack of merit without prejudice to the filing of a petition for habeas corpus at the appropriate time.

Very truly yours,

TOMASITA B. MAGAY-DRIS

Clerk of Court

By:

(Sgd.) LUDICHI YASAY-NUNAG

Asst. Div. Clerk of Court