Friday, October 03, 2008 2 complainants withdraw charges against Joavan
TWO of the most vocal complainants against Joavan Fernandez, whom they accused of mauling and stealing their appliances, yesterday filed separate affidavits of desistance at the Talisay City prosecutor’s Office.
Winston Abellana, 18 and his vulcanizing shop owner-aunt Mercedita Abellana submitted their respective two-page desistance documents, virtually withdrawing the serious illegal detention and robbery cases against Mayor Socrates Fernandez’s adopted son.
In his affidavit, Winston admitted he and his cousin, Osbert, 21, took the missing spare tire of Mayor Fernandez and reportedly sold it last August.
Despite their desistance, City Prosecutor Marshall Rubia said the Talisay City Prosecutor’s Office has already resolved the motion for reconsideration filed by Joavan that called for a clarificatory hearing on his serious illegal detention case.
The motion was filed after the prosecutor’s office found prima facie evidence against Joavan that would warrant the filing of two counts of serious illegal detention case.
Rubia said the affidavit of desistance was not treated as among the issues to be resolved when the handling prosecutor reviewed the motion for reconsideration.
Thus, Rubia said his office may still elevate the filing of the criminal case against Joavan before the Regional Trial Court in Cebu City today.
As the complainants against Joavan expressed their intent to back out, the Department of Social Welfare and Development (DSWD) 7 is also seeking the release of his two companions from jail.
A clerk at the 22nd branch of the Regional Trial Court (RTC) said a DSWD official called the court to convey the agency’s intention yesterday. A formal letter addressed to Judge Manuel Patalinghug is expected today.
The two persons concerned are minors.
And while they are old enough to stand trial in the non-bailable case of serious illegal detention against them, Sec. 23 of the Juvenile Justice Act says they cannot be held without bail.
“Whenever detention is necessary, a child will always be detained in youth detention homes established by local governments, pursuant to Section 8 of the Family Courts Act, in the city or municipality where the child resides,” the provision reads in part.
“In the absence of a youth detention home, the child in conflict with the law may be committed to the care of the DSWD or a local rehabilitation center recognized by the government in the province, city or municipality within the jurisdiction of the court,” it adds.
Rubia earlier recommended no bail for Joavan’s companions Benedeck Gabasa, Mark Perez, Teodoro Ligaray and the two minors “who acted with discernment” in the indictment before the RTC.
While they were charged with Joavan in the original complaint, Rubia indicted them first, as they had all been arrested.
He treated the complaint against Joavan, who was at large, under regular filing.
The charges against the five alleged accomplices stemmed from their supposed involvement in the Aug. 11 abduction and mauling of cousins Osbert and Winston over a lost tire, which the two allegedly sold.
Attached to the indictment was Osbert’s affidavit that identified the five respondents as the ones who, with Joavan calling the shots, dragged him and his cousin out of the vulcanizing shop where he worked and brought them to Joavan’s home.
He said the five persons “also mauled me mercilessly.” They could not protect themselves because their hands were tied.
“As they kept slapping and punching us, Joavan Fernandez told us that we will be salvaged (summarily executed) then after,” Osbert said.
“As we could do nothing that very time, I just prayed that we will be spared from death,” he said.
Abellana, on the other hand, was allegedly mauled and threatened with getting shot.
Fortunately, Osbert said, his father was able to get help from Talisay City policemen who immediately went to Joavan’s house, arrested the five and freed them.
Mercedita and Oscar, Osbert’s father, earlier vowed not to withdraw their complaint against Joavan, even if the young Fernandez or the mayor offered them financial aid.
But Mercedita, who accused Joavan of taking away her TV set and a DVD player for failing to pay the amount of the lost tire, insisted the lost tire was not sold by her nephews but was taken by robbers who barged into her vulcanizing shop along the highway in Barangay Tabunok.
Her shop was closed following the mauling incident that reportedly took place outside the residence of Joavan on Sitio 8th St., Lower Mansueto, Barangay Bulacao.
She allegedly pleaded with Mayor Fernandez that she would just repay the amount of the missing tire on installment basis.
Rubia told Sun.Star Cebu that Winston’s affidavit cleared Joavan of forcibly taking him and Osbert from the vulcanizing shop to the latter’s house in Bulacao.
Mercedita’s desistance also withdrew her robbery complaint against Joavan.
In her affidavit, Mercedita blamed Osbert instead as the one who took the appliances and voluntarily handed these over to Joavan.
A reliable source told Sun.Star Cebu last night that the mayor’s relative was seen at the City Prosecutor’s Office when the complainants submitted their affidavits of desistance yesterday afternoon. (GC/KNR)
