G.R. No. 137560 - IN RE: PETITION FOR HABEAS CORPUS OF DAVID CRUZ y GONZAGAMARIA CRUZ Y GONZAGA AND DAVID CRUZ Y GONZAGA, VS. COURT OF APPEALS, SUPERINTENDENT OF THE NATIONALD E C I S I O N - Supreme Court E-Library

Ruling

accordingly DISMISSED pursuant to Section 8, Rule 124 of the 1985 Rules on Criminal Procedure." [5] This Resolution became final and executory on October 14, 1996. Judgment was entered on April 1, 1997. [6] In 1998, petitioner Maria Cruz sought the assistance of the Office of Legal Aid of the University of the Philippines College of Law. Hence, this petition. Petitioners claim that: "I. The Court of Appeals committed grave abuse of discretion in considering petitioner's appeal abandoned despite its October 24, 1995 Resolution. "II. The correct penalty to be imposed should be determined in a new trial. Jjsc "III. There is no lawful writ or process which justifies petitioner's restraint of liberty." [7] The petition for certiorari must be dismissed. Respondent Court of Appeals did not err in declaring the appeal of petitioner David Cruz as abandoned and dismissed. Section 8 of Rule 124 of the 1985 Rules on Criminal Procedure, as amended, provides: "Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. - The appellate, court may, upon motion of the appellee or on its own motion and notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except in case the appellant is represented by a counsel de oficio. "The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellant escapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of the appeal." [8] An appeal may be dismissed by the Court of Appeals, upon motion of the appellee or upon the court's own motion, if the appellant fails to file his brief within the prescribed time. The only exception is when the appellant is represented by counsel de officio . Petitioner David Cruz was represented not by counsel de officio , but by counsel of his own choice. His lawyer, Atty. Carmelo Arcilla, was counsel de parte before the trial court, before this Court on appeal, and before the Court of Appeals. There is nothing in the records that would show that Atty. Arcilla withdrew his representation of petitioner. On the contrary, the notice from the Court of Appeals requiring the filing of the appellant's brief was received by Atty. Arcilla. And despite this receipt, still no appellant's brief was filed. It was more than three (3) months later that the appellate court issued the questioned Resolution. By dismissing David Cruz's appeal, the Court of Appeals acted within its discretion. A new trial to determine his penalty cannot be granted petitioner. A motion for new trial may be granted by the Court of Appeals only on the ground of newly discovered evidence material to the accused's defense. This is clear from Section 14, Rule 124 of the 1985 Rules on Criminal Procedure, to wit: "Sec. 14. Motion for new trial. -At any time after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting the accused beco