3 a. The Office of the Public Prosecutor did not present its indictment for the right crime, nor does it appear on the record that it requested the modification of the writ of indictment, which it had the power to do pursuant to that established in Article 320 of the Guatemalan Code of Criminal Procedures. b. Regarding the Trial Court, even though it is true that it had the power to give the act a different legal classification to the one presented in the indictment or the order for trial to commence in the procedural stage of the judgment in virtue of the permissive rule that regulates that situation in Article 388 of the Guatemalan Code of Criminal Procedures; it is also true that said situation is motivated by the appearance of a new circumstance not mentioned in the order for trial to commence. This situation in the case of merit refers to the certainty of the Court regarding the strangulation of the minor as the cause of her death, situation that obviously modified the legal classification of the crime substituting that of aggravated rape for murder, and therefore the punishment to be imposed. This situation places us under the legal rule established in Article 373 of the Guatemalan Code of Criminal Procedures having as a consequence the right of the parties to request the suspension of the debate in order to offer more evidence or prepare their intervention; right that was not used by the Office of the Public Prosecutor or the defense. However, the most evident violation to the due process occurs when despite having changed the legal classification of the crime and therefore its punishment, THE TRIAL COURT DOES NOT PROCEED TO RECEIVE A NEW STATEMENT FROM THE DEFENDANT as it was obliged to due based on that expressly stated in an imperative manner in the previously mentioned article. The previous procedural errors resulted in the non-compliance by the State of Guatemala of the judicial guarantees enshrined in Articles 8(2)(b) and 8(2)(c) of the American Convention on Human Rights. c. Regarding the court-appointed defense counsel, it is obliged to request the suspension of the debate and demand that the Trial Court receive a new statement from the defendant, which it did not do. IV. Of the Pardon In what refers to this situation, it is currently not regulated in Guatemala’s legislation, which per se constitutes a violation to Article 4(6) of the American Convention. Mr. Fermín Ramírez presented on July 27, 1999 a measure of grace to the President of the Republic (Alvaro Arzú) through memorial received in the Reception Office of the Ministry of Government. On that same date, that office forwarded the dossier with the request to the Head Office of that Ministry, who at the same time forwarded it to the General Secretariat of the Presidency on May 31, 2000 (when the Presidency was in the hands of Mr. Alfonso Portillo). Said appeal was denied (by President Portillo) through agreement 235-2000 of May 31, 2000 that was published in the Diario de Centroamérica on June 2 of that same year. It is true that the President of the Republic was not obliged to pardon the convicted party, since this decision is essentially optional, however, before the apparent legal limbo generated by the annulment of decree 159 of the Legislative Assembly that