Non-appearance of Accused

Non-Appearance at Promulgation

Promulgation is the official announcement of the judgment to the accused and is the act that makes the judgment operative for purposes of finality, execution, and post-judgment remedies. In criminal cases, the general rule is that judgment is promulgated by reading it in the presence of the accused, because the accused must personally know whether he has been acquitted, convicted, or otherwise made subject to a dispositive ruling affecting liberty.

Rule 120 treats the accused's presence at promulgation as a duty, not a mere privilege. The accused who has been notified to appear cannot defeat the proceedings by staying away. Once the required notice has been given, non-appearance at the scheduled promulgation activates the rule on constructive promulgation and, if the judgment is one of conviction and the absence is unjustified, the special consequences imposed by the Rules of Criminal Procedure.

Notice Required Before Non-Appearance Has Consequences

The consequences of absence arise only when the accused fails to appear despite notice. The clerk of court must give notice requiring the accused to be present at promulgation, and notice is ordinarily made personally or through the bondsman or warden, with notice also to counsel. Notice to the bondsman is important because an accused released on bail undertakes to appear whenever required by the court, including at promulgation.

If the accused is detained, notice through the warden is the practical mode by which the court secures the prisoner's production. If the accused is on bail, the bondsman has a corresponding obligation to produce the accused. If the accused has counsel, counsel's notice does not eliminate the need to comply with the rule requiring notice to the accused through the modes recognized by Rule 120.

Without valid notice, absence is not the kind of non-appearance contemplated by the rule. A promulgation made after defective notice may be vulnerable because the accused was not given a fair opportunity to attend and to immediately exercise available remedies. The court must be able to show from the record that notice was given in the manner required, because loss of remedies and arrest are severe consequences.

Constructive Promulgation When the Accused Does Not Appear

When the accused fails to appear at the scheduled promulgation despite notice, the court does not indefinitely postpone the case. Rule 120 authorizes promulgation by recording the judgment in the criminal docket and serving a copy of the judgment on the accused at his last known address or through counsel. This method is constructive promulgation because the judgment is deemed promulgated even though it was not read to the accused in open court.

Constructive promulgation preserves the court's authority to terminate the criminal case and prevents an accused from controlling the final stage of the proceeding through absence. The judgment becomes part of the record by docket entry, and service of a copy supplies notice of the contents. The date of constructive promulgation is the controlling date for the special period to surrender and seek leave when the judgment is one of conviction.

The rule applies whether the court is a trial court rendering judgment in the ordinary course or a court receiving the judgment for promulgation under the procedural arrangements allowed when the judge or accused is in another place. The essential point is that the judgment is entered and served in the manner required when the accused, though notified, is not present.

Effect Depends on the Nature of the Judgment

The serious consequences stated in Rule 120 attach only to a conviction and only when the failure to appear was without justifiable cause. The rule does not punish absence for its own sake; it penalizes unjustified absence that obstructs the ordinary promulgation of a judgment imposing criminal liability.

Loss of Remedies Against the Judgment

If the judgment is one of conviction and the accused's failure to appear is unjustified, the accused loses the remedies available under the Rules against the judgment. These remedies include appeal and the ordinary post-judgment motions directed against the conviction, such as a motion for new trial or reconsideration. The loss is procedural but severe because it allows the judgment to become final notwithstanding the accused's possible objections to the conviction.

The loss of remedies is not based on the merits of the conviction. It is a consequence of the accused's disregard of a lawful court directive to appear at a critical stage. The rule rests on the principle that an accused who deliberately absents himself after notice cannot use that absence to delay the judgment and then demand the full benefit of remedies as if he had complied with the process.

The loss is not always irreversible. Rule 120 gives the accused a narrow method to recover the remedies lost by non-appearance: he must surrender and ask leave of court within the prescribed period. Until leave is granted, the accused cannot validly insist on appeal or other remedies as a matter of right.

Arrest After Unjustified Non-Appearance

When the accused is convicted and his non-appearance at promulgation is without justifiable cause, the court must order his arrest. The arrest order enforces the judgment process and secures the accused's person for service of sentence, further proceedings, or the resolution of any motion for leave. The order is independent of the court's authority to deal with the bail bond under the rules on bail.

Failure to appear at promulgation may also justify action against the bond because appearance at promulgation is one of the obligations secured by bail. The bail consequence and the Rule 120 consequence are related but distinct. Bond forfeiture addresses the undertaking of the bondsman and the accused's compliance with the conditions of provisional liberty, while the Rule 120 consequence addresses the accused's access to remedies after conviction.

Surrender and Motion for Leave

An accused convicted in absentia is not automatically barred forever if he can justify his absence. Within fifteen days from promulgation of judgment, he may surrender and file a motion for leave of court to avail of the remedies against the judgment. The requirements are cumulative: surrender alone is not enough, and a motion for leave without surrender does not satisfy the rule.

The motion for leave must state the reasons for the accused's absence at the scheduled promulgation. The burden is on the accused to prove that the absence was for a justifiable cause. Bare assertions, unverified excuses, or explanations inconsistent with the record do not compel restoration of remedies. The court must be satisfied that the accused's failure to appear was not a deliberate evasion of the court's authority.

If the court finds the absence justified, the accused is allowed to avail of the remedies against the judgment within the period recognized by the rule from notice of the order allowing such remedies. This restores the procedural opportunity lost by the non-appearance, but it does not decide the merits of the contemplated appeal or motion. The accused must still perfect the remedy in the manner required by the Rules.

If the accused fails to surrender and file the motion for leave within the fifteen-day period, or if the court finds the explanation insufficient, the loss of remedies remains. The conviction may then become final and executory, subject to the usual incidents of execution of criminal judgments.

Justifiable Cause

Justifiable cause means a real, adequate, and proven reason that prevented attendance despite the accused's duty to appear. It may include serious illness, accident, force majeure, detention by lawful authority, or another circumstance showing that the absence was not voluntary or contumacious. The cause must relate to the specific date and time of promulgation, because the question is why the accused failed to obey that particular notice.

Illness is not automatically justifiable. The accused must show that the illness actually prevented attendance or made attendance medically unreasonable. Travel difficulty is not automatically justifiable. The accused must show that the difficulty was not self-created and could not reasonably have been anticipated. Reliance on another person's assurance is not automatically justifiable if the accused had actual notice and no valid reason to ignore the court's directive.

Lack of notice is conceptually different from justifiable absence. If notice was not validly given, the premise for applying the non-appearance rule is absent. If notice was validly given but an external circumstance prevented attendance, the issue is whether the absence was justified and whether the accused timely surrendered and moved for leave.

Presence of Counsel and Light Offenses

The general rule requires reading of judgment in the presence of the accused, but the Rules allow a more flexible mode for light offenses, where judgment may be pronounced in the presence of counsel or a representative. This exception reflects the lesser penal exposure in light offenses, but it does not erase the importance of notice and regular promulgation.

For offenses not covered by that exception, counsel's presence at the scheduled promulgation does not by itself cure the accused's unjustified absence when the judgment is one of conviction. Counsel may receive a copy of the judgment and may participate in the proceedings, but the accused's personal duty to appear remains enforceable under Rule 120.

Detained Accused or Accused in Another Place

If the accused is confined or detained in another province or city, the judgment may be promulgated through the executive judge of the court with jurisdiction over the place of confinement or detention upon request of the court that rendered the judgment. This arrangement avoids unnecessary delay and secures the accused's presence through the custodial authority.

When promulgation occurs through another court because the accused is detained elsewhere, that court may perform acts connected with the immediate consequences of judgment, such as receiving notice of appeal and acting on bail pending appeal when permitted. The arrangement does not change the substantive effect of non-appearance; if the accused was validly required to appear and unjustifiably failed to do so, the Rule 120 consequences may still follow.

Relation to Finality and Execution

Promulgation starts the movement of the judgment toward finality. In an ordinary conviction where the accused appears, the accused may pursue the remedies allowed by the Rules within the applicable period. In a conviction promulgated after unjustified non-appearance, the accused must first satisfy the surrender-and-leave mechanism before he can use those remedies.

The finality of the judgment matters because a criminal judgment that has become final is generally immutable and must be executed. The rule on non-appearance prevents the accused from extending the period for remedies through deliberate absence. At the same time, the fifteen-day surrender mechanism protects an accused whose absence was genuinely justified from losing review through circumstances beyond his control.

Once a conviction becomes final, the court's role shifts from adjudication to execution, except for matters allowed by law after finality. The accused cannot revive appeal or reconsideration by later appearing without complying with Rule 120. The controlling inquiry remains whether the accused timely surrendered, properly sought leave, and proved justifiable cause for the absence at promulgation.

Operational Summary

1. The court sets promulgation and the clerk gives the required notice to the accused and counsel through the modes recognized by Rule 120.
2. If the accused appears, judgment is promulgated in the ordinary manner, subject to the limited exception for light offenses.
3. If the accused does not appear despite notice, the judgment is promulgated by recording it in the criminal docket and serving a copy at the last known address or through counsel.
4. If the judgment is an acquittal, the absence does not create the punitive consequences attached to an unjustified absence from promulgation of a conviction.
5. If the judgment is a conviction and the absence is unjustified, the accused loses remedies against the judgment and the court orders arrest.
6. Within fifteen days from promulgation, the accused may surrender and file a motion for leave to avail of remedies, stating and proving the justifiable cause for non-appearance.
7. If the court finds the cause justified, the accused may pursue the appropriate remedy within the period allowed after notice; if not, the conviction proceeds according to the consequences of finality.