Cases Civ Pro.docx - FACTS G.R No 184915 NILO T PATES vs...

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G.R. No. 184915 June 30, 2009 NILO T. PATES vs. COMMISSION ON ELECTIONS and EMELITA B. ALMIRANTE FACTS a. February 1, 2008 – The COMELEC First Division issued its Resolution (assailed in the petition); b. February 4, 2008 – The counsel for petitioner Nilo T. Pates (petitioner) received a copy of the February 1, 2008 Resolution; c. February 8, 2008 – The petitioner filed his motion for reconsideration (MR) of the February 1, 2008 Resolution (4 days from receipt of the February 1, 2008 Resolution) d. September 18, 2008 – The COMELEC en banc issued a Resolution denying the petitioner’s MR (also assailed in the petition). e. September 22, 2008 – The petitioner received the COMELEC en banc Resolution of September 18, 2008. Under this chronology, the last day for the filing of a petition for certiorari, i.e., 30 days from notice of the final COMELEC Resolution, fell on a Saturday (October 18, 2008), as the petitioner only had the remaining period of 26 days to file his petition, after using up 4 days in preparing and filing his Motion for Reconsideration. Effectively, the last day for filing was October 20, 2008 – the following Monday or the first working day after October 18, 2008. The petitioner filed his petition with us on October 22, 2008 or two days late; hence, our Resolution of dismissal of November 11, 2008. Petitioner argues that the petition was seasonably filed under the fresh period rule enunciated by the Supreme Court in a number of cases decided beginning the year 2005. The "fresh period" refers to the original period provided under the Rules of Court counted from notice of the ruling on the motion for reconsideration by the tribunal below, without deducting the period for the preparation and filing of the motion for reconsideration. Respondent Emelita B. Almirante (respondent Almirante) filed a comment stating that: (1) we are absolutely correct in concluding that the petition was filed out of time; and (2) the petitioner’s reliance on Section 4, Rule 65 of the Rules of Court (as amended by A.M. No. 00-02-03-SC) is totally misplaced, as Rule 64, not Rule 65, is the vehicle for review of judgments and final orders or resolutions of the COMELEC. Respondent Almirante points out that Rule 64 and Rule 65 are different;

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