O. Motion to Quash the Complaint or Information -R117

UNIVERSITY OF SAN CARLOS CRIMINAL PROCEDURE

Justice Gabriel T. Ingles’ Notes Compilation E.

MOTION TO QUASH THE COMPLAINT OR INFORMATION (Rule 117)

*SECTION 1. Time to move to quash. – At any time before entering his plea, the accused may move to quash the complaint or information. (1)

In the usual course of procedure, a denial of a motion to quash filed by the accused results in the continuation of the trial and the determination of the guilt or innocence of the accused. If a judgment of conviction is rendered and the lower court’s

*Motion necessary except if ground is lack of jurisdiction over the subject matter

decision of conviction is appealed, the accused can then raise the denial of his motion to quash not only as an error committed

People v. Nitafan, Nitafan, 302 SCRA 424

by the trial court but as an added ground to overturn the latter’s

Issue:

ruling. May the judge quash an information without any motion from the accused? In this case, the petitioner did not proceed to trial but opted to Held: immediately question the denial of his motion to quash via a via a No. It is clear from Sec. 1,2,3 and 9 of Rule 117 of the Rules of Court that the right to file a motion to quash belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu proprio initiate a motion to quash if no such motion was filed by the accused. A motion contemplates an initial action originating from the accused. It is the latter who is in the best position to know on what ground/s he will base his objection to the information. Otherwise, if the judge initiates the motion to quash, then he is not only pre judging the case of the prosecution but also takes side w ith the accused.

special civil action for certiorari under Rule 65 of the Rules of Court. Court. As a rule, the denial of a motion to quash is an interlocutory order and is not appealable; an appeal from an interlocutory order is not allowed under Section 1(b), Rule 41 of the Rules of Court. Neither can it be a proper subject of a petition for certiorari which certiorari which can be used only in the absence of

*2. Motion to quash after arraignment on any of the following grounds: 1. lack of jurisdiction over the subject matter; 2. failure to charge an offense; 3. extinction of offense or penalty; and 4. double jeopardy

an appeal or any other adequate, plain and speedy remedy.

Marcos v. Sandiganbayan, Sandiganbayan, 326 SCRA 473

special civil action for certiorari is an exception rather than the

Issue:

general rule, and is a recourse that must be firmly grounded on

May an accused file a motion to quash after his arraignment?

compelling reasons.

The plain and speedy remedy upon denial of an interlocutory order is to proceed to trial as stated above. A direct resort to a

Held: Yes. Under Rule 117, Sec. 9, of the Rules of Court, a motion to quash is not improper even after arraignment accused had been arraigned if the same is grounded on failure to charge an offense and lack of jurisdiction of the offense charged, extinction of the offense or penalty and double jeopardy . Motion to quash not allowed under the Rules on Summary Procedure/Exception *A motion to quash is generally not allowed in a summary procedure except on except on the ground of *lack *lack of jurisdiction over the subject matter or failure to comply with the barangay conciliation proceedings proceedings in Sec. 18 of the 1991 Rule on Summary Procedure (Sec. 19, Rule on Summary Procedure) When motion to quash is denied

SEC. 2. Form and contents. *Form and Contents of a Motion to Quash: 1. Form: 1. It must be in writing, and 2. It must be signed by the accused or his counsel 2. Contents: *1. General Rule – The motion shall distinctly specify its factual and legal grounds and the court will not consider any ground not stated in the motion (Omnibus motion rule) 2. Exception – The only ground that the court may consider motu propio, propio,

Joel Galzote y Soriaga v. Jonathan Briones and People of the Philippines, G.R. Philippines, G.R. No. 164682, September 14, 2011.

even if not raised in the motion, is lack of jurisdiction over the offense

USC Center For Legal Aid Work 2013

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Justice Gabriel T. Ingles’ Notes Compilation charged *1. Courts cannot consider facts contrary to those alleged in the information except when ground is: 1. extinction of criminal liability; or 2. prescription, or 3. double jeopardy Milo v. Salanga, Salanga, 152 SCRA 113 Issue: May accused raise factual issues contrary to what appear on the face of the information as ground for a motion to quash? Held: No. Factual allegations can only be raised as a defense at the trial as they traverse what is alleged in the information. information. In resolving a motion to quash, courts cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information. Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy. A motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts which are not only different but also diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution.

certain specified grounds under Rule 16. In criminal procedure, at anytime before entering the plea, the accused may move to quash the complaint or information. Motion to quash an omnibus motionTake note that under Section 2, the motion to quash partakes the nature of an omnibus motion because the court will consider no ground other than those stated in the motion. The court will not quash a complaint or information on a ground that you did not cite. This is because you can waive this right. The only ground the court will consider moto propio, is lack of jurisdiction over the offense charged, even if not raised in the motion to quash. The theory is that: “No amount of silence on the party of the accused will grant the court jurisdiction over the subject matter matter of the case.” Jurisdiction over the subject matter is conferred by law.

*SEC. 3. Grounds. The accused may move move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense offense charged;

Exception to the rule Garcia v. CA, CA, 266 SCRA 678

(c) That the court trying the case has no jurisdiction over the person person of the accused;

Facts: Accused filed a motion to quash the information for bigamy against him on the ground of prescription. While the information alleged that the offense was discovered in 1989, accused claims that complainant discovered it actually in 1974 as shown by his testimony in a case before the Civil Service Commission. Issue: May a motion to quash go beyond the allegations found in the information? Held:

(d) That the officer who filed information had no authority to do so;

the

(e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished;

Yes. Sec.2, Rule 117 of the Rules of Court provides that the motion to quash shall specify distinctly the factual and legal grounds therefor and the court shall consider no grounds other than those stated therein, except lack of jurisdiction over the offense charged. A motion to quash may be based on factual and legal grounds, and since extinction of criminal liability and double jeopardy are retained as among the grounds for a motion to quash in Sec. 3, it necessarily follows that facts outside the information itself may be introduced to prove such grounds. In fact, inquiry into such facts may be allowed where the ground invoked is that the allegations in the information do not constitute the offense charged.

*1. Exclusiveness of grounds enumerated

In civil cases, within the time for but before filing the answer to the complaint, the defendant may move to dismiss the case on

Execution of an affidavit of desistance or pardon is not a ground for a motion to quash. It is not one of those enumerated (Cabico

(h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (3a)


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Justice Gabriel T. Ingles’ Notes Compilation v. Dimaculangan-Querijero, 522 SCRA 300; Peoplev. Salazar, GR No. 181900, Oct. 20,2010) Matter of defense cannot be grounds for motion to quash; present them at the trial. In Antone v. Beronilla, G.R. No. 183824, December 8, 2010, Perez, J, in 1978, the parties got married, but in 1991, the respondent contracted a subsequent marriage. The information was filed in 2007. The information was filed in 2007. The accused filed a Motion to Quash on the ground that the facts alleged do not constitute an offense and submitted a decree declaring their marriage void in 2007. He argued that since the marriage has been declared void from the beginning, there was actually no first marriage to speak of. Absent a first valid marriage, the facts alleged in the information do not constitute bigamy. The prosecution contended that he committed the act before the declaration of nullity of their marriage. It likewise contended that a MTQ is a hypothetical admission of the facts alleged in the information and the facts contrary thereto are matters of defense which may be raised during the trial.

In his MTQ, he relied on the case of Morigo v. People, and the court quashed the information applying Morigov.People, G.R. No. 145226, February 6, 2004, 422 SCRA 376 and ruled: The first element of bigamy as a crime requires that the accused must have been legally married. But in this case, legally speaking, the petitioner was never married to Lucia Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of a marriage being declared void ab initio, the two were never married “from the beginning”. xxx The existence and the validity of the first marriage being an essential element of the crime of bigamy, it is but logical that a conviction for said offense cannot be sustained where there is no first marriage to speak of. xxx

The prosecution moved for reconsideration of the said Order on the ground that the facts and the attending circumstances in Morigoare not on all fours with the case at bar. It likewise pointed out that, in Mercado v. Tan, G.R. No. 137110, August 1, 2000, 337 SCRA 122, it was settled that “(a) declaration of the absolute nullity of a marriage is now explicitly required either as a cause of action or a ground for defense.”

and executor and duly registered with the Municipal Civil Registrar of Naval, Biliran are pieces of evidence that seek to establish a fact contrary to that alleged in the information – that a first valid marriage was subsisting at the time the respondent contracted a subsequent marriage. This should not have been considered at all because cannot be raised in a motion to quash.

There is no justifiable reason for sustaining the motion to squash even after taking into consideration the established exceptions to the rule earlier recognized by this Court, among others: (1) when the new allegations are admitted by the prosecution; (People v. Navarro, 75 Phil. 516 (1945)); (2) when the Rules so permit, such as upon the grounds of extinction of criminal liability and double jeopardy. In People v. Mendoza and Morigo declaring that: (a) a case for bigamy based on a void ab initio marriage will not prosper because there is no need for a judicial decree to establish that a void ab initio marriage is invalid; and (b) a marriage declared void abinitio has retroactive legal effect such that there would be no first valid marriage to speak of after all, which renders the elements of bigamy incomplete, run contrary to the new provision of the Family Code, a few years before respondent’s subsequent marria ge was celebrated in 1991. The specific provision, which reads:

ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such marriage void.

Was exclusively discussed in Mercado, where the Court settled the “conflicting” jurisprudence on “the end for a judicial declaration of nullity of the previous marriage.” After establishing that Article 40 is a new provision expressly requiring a judicial declaration of nullity of a prior marriage and examining a long line of cases, the Court, concluded, in essence, that under the Family Code a subsequent judicial declaration of the nullity of the first marriage is immaterial in a bigamy case because, by then, the crime had already consummated. Otherwise started, the Court declared that a person, who contacts a subsequent marriage absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy.

Is the quashal of the information valid? Why?

Held: No, because it contain all the elements of the crime of Bigamy under Article 349 of the Revised Penal Code hereunder enumerated: (1) That the offender has been legally married; (2) That the first marriage has not yet been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) That he contracts a second or subsequent marriage; and (4) That the second or subsequent marriage has all the essential requisites for validity. The documents showing that: (1) the court has decreed that the marriage of petitioner and respondent is null and void from the beginning; and (2) such judgment has already become final

Notably, Morigo, was indeed promulgated years after Mercado. The Order of the trial court which maintained that Morigohas already superseded Mercadois not correct. In fact, in Morigo, the Court clearly distinguished the two (2) cases form one another, and explained: The present case is analogous to, but must be distinguished from Mercado v. Tan. In the latter case, the judicial declaration of nullity of the first marriage was likewise obtained after the second marriage was already celebrated. xxx

To Mercado, the first marriage was actually solemnized xxx. Ostensibly, at least the first marriage appeared to have transpired, although later declared void abinitio.


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Justice Gabriel T. Ingles’ Notes Compilation Issue: In Morigo, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. The parties merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage for which petitioner might be held liable for bigamy unless he first secures a judicial declaration of nullity before he contracts a subsequent marriage. (Note: How about the principle of putative marriage and that the authority to solemnized is a mere formal requisite.).

Is the absence of a preliminary investigation a ground for a motion to quash? Held: No. The absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective. Neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. It is not among those listed under Sec. 3, Rule 117 of the Rules of Court as a ground for a motion to quash. Lack of probable cause

The application of Mercado to the cases following Morigo even reinforces the position of the Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, the court ruled in Tenebro v. Court of Appeals:

Although the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculumbetween the spouses are concerned, xxx said marriage is not without legal effects. Among these effects is that children conceived or born before the judgment of absolute nullity of the marriage shall be considered legitimate. There is therefore a recognition writteninto law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. xxx.

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafica, (A.M. No. 2008-20-SC, March 15, 2010), the Court pronounced:

In acatena of cases, the Court has consistently held that a judicial declaration of nullity is required before a valid subsequent marriage can be contracted; or else, what transpires is a bigamous marriage, reprehensible and immoral. (Morigo v. People, G.R. No. 145226, February 6, 2004, 422 SCRA 376; Domingo v. Court of Appeals, G.R. No. 104818, September 17, 1993, 226 SCRA 572; Terre v. Terre, A.C. No. 2349, Ju;y 3, 1992, 211 SCRA 7; Wiegel v. Sempio-Diy, No. L-53703, August 19, 1986, 143 SCRA 499; Vda de Consuegra v. Government Service Insurance System, No.L-28093, January 30, 1971, 37 SCRA 315; Gomez v. Lipana, No. L-23214, June 30, 1970, 33 SCRA 614). To conclude, the issue on the declaration of nullity of the marriage between petitioner and respondent only after the latter contracted the subsequent marriage is, therefore, immaterial for the purpose of establishing that the facts alleged in the information for Bigamy does not constitute an offense. Following the same rationale, neither may such defense be interposed by the respondent in his motion to quash by way of exception to the established rule that facts contrary to the allegations in the information are matters of defense which may be raised only during the presentation of evidence.

Absence of preliminary investigation Villaflor v. Vivar, 349 SCRA 194

People v. Sandiganbayan, 439 SCRA 390 Facts: Accused was charged before the Sandiganbayan for violation of R.A. 3019. He filed a motion to quash the information. The SB granted the motion and acquitted the accused reasoning that based on the records, there was no probable cause to charge him of the crime. Issue: Is lack of probable cause a ground for a motion to quash? Held: No. A motion to quash may be filed only for grounds stated under Sec. 3, Rule 117, of the Rules of Court. To quash means to annul, vacate or overthrow. The absence of probable cause for the issuance of a warrant of arrest is not a ground for the quashal of the information but is a ground for the dismissal of the case. The absence or presence of probable cause is to be determined from the material averments of the information and the appendages thereof, as enumerated in Rule 112, Sec. 8. By quashing the information on the premise of lack of probable cause instead of merely dismissing the case, the SB acted in violation of case law and, thus, acted with grave abuse of its discretion amounting to excess or lack of jurisdiction. Failure to furnish resolution to accused Vasquez v. Hobilla-Alinio, 271 SCRA 67 Issue: May a court quash the information on the ground that accused has not been furnished with a copy of the resolution of the prosecutor finding probable cause? Held: No. Under Sec. 3, Rule 117, of the Rules of Court, failure of the prosecution to furnish copy of the resolution to accused is not one of the grounds to quash an information. An incomplete preliminary investigation does not warrant the quashal of the information, nor should it obliterate the proceedings already had. Neither is the court’s jurisdiction nor validity of an information adversely affected by deficiencies in the preliminary investigation. Instead, the court must hold in abeyance any further proceedings therein and to remand the


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Justice Gabriel T. Ingles’ Notes Compilation case to the proper officer for the completion of the preliminary investigation, the outcome of which shall then be indorsed to court for its appropriate action. *Matters of defense, as a rule, are not grounds for a motion to quash (People vs. Miranda 2 SCRA 261) Thus, if the accused files a motion to quash the information for homicide because he only acted in self defense, and such fact is not alleged in the information, the court should proceed with the case and determine the validity and truth of the defense in a full-blown trial. *Exception: double jeopardy or extinguishment of the criminal liability. 1ST GROUND: (A) THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE;

*3RD GROUND: (C) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE PERSON OF THE ACCUSED; *Effect of voluntary submission on jurisdiction over the subject matter Arnado v. Buban, 430 SCRA 382 Facts: Two counts of estafa for the amount of P 818,510.20 and P59,968.00 were filed against accused before the MTC. The judge issued a warrant of arrest and scheduled the arraignment. Accused posted bail and filed a motion to quash on the ground of lack of jurisdiction considering the imposable penalties for both offenses are more than 6 years. Issue:

Basis of determination whether facts constitute offense Mendoza-Ong v. People, 414 SCRA 181

Did accused submit himself to the jurisdiction of the court by posting bail?

Question:

Held:

What is the test to determine whether or not the information charges an offense?

No. The power and authority of a court to hear, try and decide a case is defined as jurisdiction. Elementary is the distinction between jurisdiction over the subject-matter and jurisdiction over the person.

Answer: *The fundamental test of the viability of a motion to quash on the ground that the facts averred in the information do not amount to an offense is whether the facts alleged would establish the essential elements of the crime as defined by law. In this examination, matters aliunde are not considered. *In other words, the information must allege clearly and accurately the elements of the crime charged (Lazarte vs. Sandiganbayan GR No. 180122, March 13, 2009) 2ND GROUND: (B) THAT THE COURT TRYING THE CASE HAS NO JURISDICTION OVER THE OFFENSE CHARGED; Basis for determining jurisdiction Macasaet v. People, 452 SCRA 365 Question: In resolving a motion to dismiss based on lack of jurisdiction, what principle should guide the court? Answer:

Jurisdiction over the subject-matter is conferred by the Constitution or by law. It is so essential that erroneous assumption of such jurisdiction carries with it the nullity of the entire proceedings in the case. At the first instance or even on appeal, and although the parties do not raise the issue of jurisdiction, courts are not precluded from ruling that they have no jurisdiction over the subject-matter if such indeed is the situation. In contrast, jurisdiction over the person is acquired by the court by virtue of the party’s or the voluntary submission of the accused to the authority of the court or through the exercise of its coercive processes. To prevent the loss or waiver of this defense, the accused must raise the lack of jurisdiction seasonably by motion for the purpose of objecting to the jurisdiction of the court; otherwise, he shall be deemed to have submitted himself or his person to that jurisdiction. In other words, jurisdiction over the subject-matter which is neither subject to agreement nor conferred by consent of the parties. Instances when the court has no jurisdiction: 1. 2.

*Jurisdiction over a criminal case is determined by the allegations of the complaint. In resolving such motion, as a general rule, the facts contained in the complaint should be taken as they are. The exception is where the Rules of Court allow the investigation of facts alleged in a motion to quash such as when the ground invoked is the extinction of criminal liability, prescriptions, double jeopardy, or insanity of the accused. In these instances, it is incumbent upon the trial court to conduct a preliminary trial to determine the merit of the motion to dismiss.

3.

the court has no jurisdiction to try the case because of the penalty; the court has no jurisdiction to try the offense because it is committed in another place – territorial jurisdiction; or the court has no jurisdiction over the person of the accused because the latter has never been arrested and never surrendered himself.

4TH GROUND: (D) THAT THE OFFICER WHO INFORMATION HAD NO AUTHORITY TO DO SO;

FILED

THE

Who has the authority to file the case? Prosecutor. In private crimes however, the offended party.


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Justice Gabriel T. Ingles’ Notes Compilation convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense

Effect of lack of authority People v. Garfin, 426 SCRA 393 Issue:

*Validity of duplicitous information when there is failure to move to quash

What is the effect when the officer is without authority to file the information?

Dimayacyac v. CA, 430 SCRA 121 Question:

Held: *The trial court cannot acquire jurisdiction over the case. In fact, under Sec. 3(d), Rule 117 of the Rules of Court, “that the officer who filed the information had no authority to do so” is a ground for a motion to quash. The plea of accused to an information may be a waiver of all formal objections to the said information but not when there is want of jurisdiction. Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent. *CUDIA vs. COURT OF APPEALS, January 16, 1998 HELD: “An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent.”

Is a duplicitous information a valid indictment? Answer: Yes. An accused , who fails to object prior to arraignment to a duplicitous information, may be found guilty of any or all of the crimes alleged therein and duly proven during the trial, for the allegation of the elements of such component crimes in the said information has satisfied the constitutional guarantee that an accused be informed of the nature of the offense with which he or she is being charged. Verily, a duplicitous information is valid since such defect may be waived and the accused, because of such waiver, could be convicted of as many offenses as those charged. Multiple offenses in a single complaint People v. Conte, 247 SCRA 583 Issue:

*5TH GROUND: (E) THAT IT DOES NOT CONFORM SUBSTANTIALLY TO THE PRESCRIBED FORM; You know very well the form of complaint or information. You go back to Rule 110 – you state the time, the place, etc. then in Rule 112 a certification is required. The fiscal will certify that I have conducted the preliminary investigation, etc. that is the form. The fiscal will certify that the other party has given the chance to be heard. If the same was not afforded the accused, he can move to dismiss the case. Now, what is your ground to quash?

May an accused be convicted of 11 counts of rape alleged in a single complaint? Held: Yes. While the complaint charges accused of several crimes of rape, in violation of Sec. 13, Rule 110 of the Rules of Court, which provides that a complaint or information must charge but one offense, under Sec. 1 & 3(e) of Rule 117, the accused, before entering his plea, should have moved to quash the complaint for being duplicitous. For his failure to do so, he is deemed to have waived the defect. Hence, the court could convict him as many offenses as are charged and proved, and impose on him the penalty for each and every one of them.

You say, “It does not comply with the prescribed form” because the correct form requires certification. It is a ground for a motion to quash. What happens when the defense fails to file a Motion To Quash based on this ground before arraignment?

*7TH GROUND: (G) THAT THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED Q: How is criminal liability extinguished?

There is a waiver because the defect is formal not jurisdictional. A: Under Article 89 of the RPC: 1. 2. 3. 4. 5. 6.

*6TH GROUND: (F) THAT MORE THAN ONE OFFENSE IS CHARGED EXCEPT WHEN A SINGLE PUNISHMENT FOR VARIOUS OFFENSES IS PRESCRIBED BY LAW; This refers to a duplicitous complaint or information – when it charges more than one offense under Rule 110, Section 13. It is not allowed. However under Rule 120, Section 3 it is waivable. If the accused fails to object to it before trial, the court may

by death of the convict; by service of sentence; by amnesty; by absolute pardon; by prescription of the crime; by prescription of the penalty

Basis of computing prescription People v. Maravilla, 165 SCRA 392 Facts:


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Justice Gabriel T. Ingles’ Notes Compilation Accused, a lawyer, was charged with acts of lasciviousness for grabbing the breast of a sales lady. The case was, however, dismissed so that an amended complaint for unjust vexation was filed against him 83 days after the commission of the offense. Accused filed a motion to quash on the ground of prescription.

justification. Of course this is very rare. Why will the fiscal allege in the information something that is favorable to you? This is very queer. One of the most interesting case here is the 1994 case of DANGUILAN-VITUG vs. COURT OF APPEAL, 232 SCRA 460 [1994]

Issue: Should the period of prescription be reckoned based on the filing of the original complaint for acts of lasciviousness or the amended information for unjust vexation? Held: Prescription stopped from the time the complaint for acts of lasciviousness was filed. The crime of unjust vexation, while concededly different from the crime of acts of lasciviousness, is embraced by the latter and prosecution for this crime will suspend the period of prescription for the former crime. A common characteristic of the 2 offenses is molestation of the offended party. Where it is not shown that this was accompanied by lewd designs, the accused may not be convicted of acts of lasciviousness but may nevertheless be held guilty of unjust vexation, as the lesser offense. It is settled that what controls is not the designation of the offense but its description in the complaint or information. Hence, even if the crime alleged in the complaint first filed, was expressly denominated acts of lasciviousness, the prescriptive period for the crime of unjust vexation was interrupted because that was the crime described by the complainant. The erroneous designation may be disregarded as superfluity.

*8TH GROUND: (H) THAT IT CONTAINS AVERMENTS WHICH, IF TRUE, WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION

FACTS: Danguilan was a columnist in a newspaper and was charged for libel for writing in a column something which is discriminating. According to her the information should be quashed because it was a privileged communication. HELD: NO, it cannot be quashed because of “paragraph [g] of Section 3 Rule 117 which states that the accused may move to quash the complaint or information where it contains averments which, if true, would constitute a legal excuse or justification. Hence, for the alleged privilege to be a ground for quashing the information, the same should have been averred in the information itself.” Meaning, the information should admit that it is privileged in nature. If it is not stated there, then it is not admitted. “The privilege should be absolute, not only qualified. Where, however, these circumstances are not alleged in the information, quashal is not proper as they should be raised and proved as defenses. With more reason is it true in the case of merely qualifiedly privileged communications because such cases remain actionable since the defamatory communication is simply presumed to be not malicious, thereby relieving the defendant of the burden of proving good intention and justifiable motive. The burden is on the prosecution to prove malice. Thus, even if the qualifiedly privileged nature of the communication is alleged in the information, it cannot be quashed especially where prosecution opposes the same so as not to deprive the latter of its day in court, but prosecution can only prove its case after trial on the merits.”

The complaint or information contains averments which if true would show that you are NOT liable. SITUATION: The information says that there is a case of homicide because in such certain date Rose stabbed Rucel because Rucel tried to stab Rose first. The information is admitting that Rose acted in self-defense. Prosecutor himself admits that Rose acted in self-defense. Therefore, the information admits the existence of a justifying circumstance. SITUATION: You are charged for committing a crime and when you committed it, you are out of your mind. Thus, it admits insanity. So you can move to quash on the ground that the information admits that you are insane. *But if not stated in the information insanity cannot be a ground for a motion to quash because of the rule of exclusiveness of the grounds. It should proven during the trial. That is what is meant by a complaint or information which contains averments which if true, constitute a legal excuse or

*9TH GROUND: (I) THAT THE ACCUSED HAS BEEN PREVIOUSLY CONVICTED OR ACQUITTED OF THE OFFENSE CHARGED, OR THE CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED WITHOUT HIS EXPRESS CONSENT. This is known as the defense against double jeopardy. The double jeopardy as a ground for a motion to quash is the most complicated ground. This is related to Section 7. Q: Define jeopardy? *A: Jeopardy is the peril in which a person is put when he is regularly charged with a crime before a tribunal properly organized and competent to try him. (Commonwealth vs. Fitzpatrick, 1 LRA 451) Jeoaprdy in the legal sense, is the "danger of conviction and punishment which the defendant in a criminal action incurs


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Justice Gabriel T. Ingles’ Notes Compilation when a valid indictment has been found..." (Hanley v. State 83 Nevada 461 cited in Black's Law Dictionary 5th ed. p. 749)

that the first charge was theft under the RPC and the prosecution is charging him not for theft but for illegal electrical connection under the municipal ordinance.

Section 21, Article III of the 1987 Constitution states: Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act. *Under Article 3, Section 21, there are two (2) sentences: “No person shall be twice put in jeopardy of punishment for the same offense.” and “If an act is punished by a law or ordinance, conviction 2. or acquittal in either shall constitute a bar to another prosecution for the same act.” *The first sentence is what you call protection against double jeopardy of punishment for the same offense. 1.

* The second sentence is what you call the protection against double jeopardy for the punishment of the same act. *However, Section 7 is not concerned with the second sentence but with the first sentence – the protection against double jeopardy from being punished for the same offense. This is similar to res adjudicate in civil cases. Double jeopardy of being punished for the same actThe second sentence says that the act is punished by a law passed by Congress and it iis also punished for example, by an ordinance passed by the City or Municipal Council. So it is a crime under the municipal or city ordinance and also under the national law. It is not the same crime because it is punished by two laws, so there must be two crimes. However the sentence says, that if you are acquitted or prosecuted under the national law, you cannot anymore be acquitted or convicted under the city or municipal ordinance all over again or vice-versa. You are protected for the same act not for the same offense. Now, the best illustrative case comparing the first and the second sentences is the 1987 case of PEOPLE vs. RELOVA, infra where Justice Feliciano traced the history of double jeopardy staring from the 1935 Constitution. PEOPLE vs. RELOVA,148 SCRA 292 FACTS: The accused installed an electrical connection without permit. He was charged with theft under the RPC – theft of electricity. And it so happened that in that place, there was an ordinance passed by the municipal council making it a crime for you to make an electrical connection without permit. So he was charged both for violation of the RPC and the municipal ordinance. The accused filed a motion to quash the second information, stating that he has already been charged for theft of electricity. The prosecution contended

ISSUE #1: What is the reason why there are 2 rules in the provision on double jeopardy? HELD: “If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities — though one be subordinate to the other — and the plea of double jeopardy w ould never be. The discussions during the 19341935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence.” ISSUE #2: Was there double jeopardy? HELD: The purpose of installing illegal connection is to steal electricity, which is also theft. In other words, it is the same act of installing which is punishable. Since you are acquitted or convicted under the national law, you cannot be prosecuted under a municipal law. You are protected by the second sentence of double jeopardy in the Constitution: “If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to another prosecution for the same act.” The SC explained the rational behind the double jeopardy rule in the case of MALLARI vs. PEOPLE,168 SCRA 422 HELD: “The rule against double jeopardy protects the accused not against the peril of second punishment but against being tried for the same offense. Without the safeguard this rule establishes in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his accusation as often as it is dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his will and pleasure. The accused would never be free from the cruel and constant menace of a never ending charge, which the malice of a complaining witness might hold indefinitely suspended over his head.” Section 7, Rule 117 of the Revised Rules on Criminal Procedure provides:

SEC. 7.

Former conviction or acquittal; double jeopardy.


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Justice Gabriel T. Ingles’ Notes Compilation *Requisites to Place the Accused in Double Jeopardy

Question:

A. Attachment of jeopardy

While the 2 informations for the same offense are still pending against accused, may he file a motion to quash invoking double jeopardy?

1. The accused was charged upon a valid complaint or information;

Answer: 2. He was tried in a court of competent jurisdiction; 3. He has been arraigned and has pleaded to the charge made against him; B. Termination of first jeopardy 4. He has been convicted or acquitted, or the case against him dismissed or

No. The mere filing of 2 informations charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his consent. Requisites for double jeopardy

otherwise terminated without his express consent C. Prosecution anew for the same offense 5. He is prosecuted anew for: 1. The offense charged, or 2. Any attempt to commit the same, or any frustration thereof, 3. Any offense which: 1. necessarily includes the offense charged in the former complaint or information, or 2. is necessarily included in the offense charged in the former complaint or information

*When the conviction of accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information:

1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or 3. The plea of guilty to the lesser offense was made without the consent of: 1. the prosecutor, and 2. the offended party except when: 1. the offended party fails to appear despite due notice, or 2. there is no private offended party *Effect of pendency of two (2) cases/litis pendentia not a ground for motion to quash People v. Pineda, 219 SCRA 1

People v. Sandiganbayan, et al., G.R. No. 153304-05, February 7, 2012 As a rule, once the court grants demurrer to evidence, the grant amounts to an acquittal; any further prosecution of the accused would violate the constitutional proscription on double jeopardy. Notably, the proscription against double jeopardy only envisages appeals based on errors of judgment, but not errors of jurisdiction. Jurisprudence recognizes two (2) grounds where double jeopardy will not attach and these are: a. On the ground of abuse of discretion amounting to lack or excess of jurisdiction; b. Whether there is a denial of a party’s due process rights. (People v. Velasco, G.R. No. 127444, September 13, 2000, 340 SCRA 207). Mari v. Hon. Gonzales, September 12, 2011 Rape case was dismissed on the ground of nolleprosque. People filed a Special Civil Action for Certiorari under Rule 65 with the SC Ordinarily, it is dismissible. But this is an exception because of the issue of double jeopardy. The court must look into the merits. If dismissal was with grave abuse of discretion amounting to lack of jurisdiction or the State was deprived of its right to due process, there is no double jeopardy. (Galman v. Pamaran) See: Carriaga v. People, July 30, 2010) Dismissal of appeal if erroneously taken. Exception in criminal cases where the life or liberty of a person is in danger of deprivation. The rule must be liberally construed. -

LitoBaustista, et al. v. Sharon G. Cuneta-Pangilinan, G.R. No. 189754, October 24, 2012 Double jeopardy The authority to represent the State in appeals in criminal cases before the SC and CA is solely vested in the OSG (Sec.35(1), Chapter 12, Title III, Book Iv of the 1987 Administrative Code). Acquittal of an accused or the dismissal of the case against him can only be appealed by the OSG acting in behalf of the State. Private complainant can question such acquittal or dismissal only insofar as the civil liability of the accused is concerned. If it is the complainant who appeals it, then, it must be outrightly dismissed.


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The granting of the Demurrer to Evidence amounted to dismissal of the case on the merits (Rule 119, Sec. 23). Any further prosecution of the accused would amount to double jeopardy.

MTQ on the ground that the facts charged do not constitute an offense; if granted, no double jeopardy if there is MR or appeal. in a case, the RTC granted a motion to quash on the ground that the facts alleged in the information do not constitute an offense. A petition to question its validity was filed with the CA which ruled that it would amount to double jeopardy. Is the ruling correct? Why?

When all the above elements concur, a second prosecution for [a] the same offense, or [b] an attempt to commit the said offense, or [c] a frustration of the said offense, or [d] any offense which necessarily includes, or is necessarily included in, the first offense charged, is barred. PEOPLE vs. BOCAR (138 SCRA 166) reiterated in PANGAN vs. PEOPLE (155 SCRA 45) HELD: To raise the defense of double jeopardy, three (3) requisites must be present: 1.

Well settled is the rule that for jeopardy to attach, the following requisites must concur: (1) There is a complaint or information or other formal charge sufficient in form and substance to sustain a conviction; (2) the same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or terminated without his express consent. (Javier v. Sandiganbayan, First Division, G.R. Nos. 147026-27, 11 September 2009, 599 SCRA 324, 343-344 citing Cabo v. Sandiganbayan, G.R. 69509, 16 June 2006, 491 SCRA 264). The third and fourth requisites are clearly wanting in the instant case as (a) respondent has not yet entered his plea to the charge when he filed the Motion to Quash the information, and (2) the case was dismissed not merely with his consent but, in fact, at his instance. (Milo v. Salanga, 152 SCRA 113 (1987). Jeopardy does not attach in favour of the accused on account of an order sustaining a motion to quash. (Sec. 7, Rule 117, Rules of Court; Andres v. Cacdac, Jr., 113 SCRA 216). More specifically, the granting of a motion to quash anchored on the ground that the facts charged do not constitute an offense is “not a bar to another prosecution for the same offense.” (People v. Consulta, 70 SCRA 277; Antone v. Beronilla, G.R. No. 183824, December 8, 2010).

Alonto v. People, 445 SCRA 624 Question: What are the requisites for the defense of double jeopardy?

2. 3.

The first jeopardy must have been attached prior to the second; The first jeopardy must be validly terminated; and The second jeopardy must be for the same offense as that of the first.

When does the first jeopardy attach? A: It attaches w hen the following requisites are present: 1. 2. 3. 4.

The former complaint or information is valid; It was filed in a court of competent jurisdiction; The accused had been arraigned under said complaint or information; and The accused had pleaded to the same.

THE FORMER COMPLAINT OR INFORMATION IS VALID Q: When is a complaint or information valid within the meaning of the double jeopardy rule? A: The requisites are: 1. 2.

if it charges an offense; (People vs. Austria, 94 Phil. 897) if it is filed by a person or officer legally authorized to do so. (People vs. Kho, 97 Phil. 825)

*CASE: An information was filed against Mr. Acelarfor theft. Mr. Acelar moved to quash on the ground that the information does not charge any offense. The court agreed and the information was quashed. So, the fiscal corrected the information and re-filed it. Mr. Acelar moved to quash on the ground of double jeopardy. Is there double jeopardy? A: There is no double jeopardy for the following reasons:

Answer: The following are the requisites for the defense of double jeopardy to be available: [1] a complaint of information or other formal charge sufficient in form and substance to sustain a conviction; [2] the complaint or information must be filed before a court of competent jurisdiction; [3] the accused has been arraigned and has pleaded to the charge; [4] the accused must have been convicted or acquitted or the case against him was dismissed or otherwise terminated without his express consent.

1.

2.

The dismissal of the first information was on motion of the accused. Therefore, it was a dismissal with his express consent. *The accused moved to quash the first information on the ground that it did not charge an offense. Therefore, it was not a valid information. So, the accused was never in jeopardy. (People vs. Reyes, 98 Phil. 646)

Valid complaint or information


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Justice Gabriel T. Ingles’ Notes Compilation considering that it sufficiently alleges the manner by which the crime was committed. Art. III, Sec. 21, of the 1987 Constitution mandates that no person shall be twice put in jeopardy of punishment for the same offense. In this case, it bears repeating that the accused had been arraigned and convicted under the information. Granting that the alteration took place and accused had a hand in it, this does not justify the setting aside of the decision. The tampering allegedly participated in by the accused may well be the subject of another inquiry.

Filing by unauthorized officer Cudia v. CA, 284 SCRA 173, Facts: For possessing a .38 revolver in Mabalacat, Pampanga, the Angeles City Prosecutor filed a case for illegal possession of firearms against accuse which was raffled to RTC, Branch 56, in Angeles City. Four months later, he Pampanga Provincial Prosecutor filed a similar case against accued for the same incident which was raffled also to the same Branch. As the crime was within the jurisdiction of the Pampanga Provincial Prosecutor, the Angeles City Prosecutor moved to dismiss the case he filed which was granted over the objection of accused. Later, accused also moved for the dismissal of the remaining case on the ground of double jeopardy. Issue:

*IT IS FILED IN A COURT OF COMPETENT JURISDICTION CASE: A case of homicide is filed in the MTC; that will be dismissed in MTC for lack of jurisdiction. But that can be cured if the fiscal will file the information of homicide in the RTC. Is there double jeopardy? A: None. The accused was never in jeopardy because the first information was filed before the wrong court. There was no danger of being convicted based on the case filed. (People vs. Salico, 84 Phil. 722)

Is accused correct? Held: No. For jeopardy to attach there must be a valid complaint or information. The information filed by the Angeles City Prosecutor is defective since he is not the proper officer who is authorized by law to prepare informations for offenses committed in Pampanga but outside Angeles City. As said city prosecutor had no authority to file the information, the dismissal of the first information would not be a bar to a subsequent prosecution. In addition, it is not correct to say that failure of the accused to assert the lack of authority of the city prosecutor during arraignment is deemed a waiver. Only a valid information confers jurisdiction on the court and questions of jurisdiction may be raised at any stage of the proceedings. *b. Falsified or tampered information Lasoy v. Senarosa, 455 SCRA 360

Facts: Accused was charged of selling 42.4 kilos of marijuana. Before arraignment, someone tampered with the information to make it appear that he only sold 42.4 grams. On arraignment, he pleaded guilty and was sentenced to imprisonment of 6 months and 1 day. Thereafter, he applied for probation. After discovering the falsification of the information, the prosecutor amended the information to charge him with the sale of 42.4 kilos of marijuana. Issue: After an information has been filed and accused had been arraigned, pleaded guilty and was convicted and after he had applied for probation, may the information be amended and the accused arraigned anew on the ground that the information was allegedly altered/tampered with? Held:

Filing before competent court Where court has no jurisdiction Binay v. Sandiganbayan, 316 SCRA 65

Facts: On May 16, 1995, R.A. 7975 took effect vesting in the Snadiganbayab [SB] exclusive jurisdiction to try certain criminal cases committed by municipal mayors, among others. On Aug. 11, 1995, despite the new law, the Ombudsman charged accused municipal mayor before the RTC with violation of Sec. 3(e) of R.A. 3019. On Feb. 9, 1996, another information for the same offense was filed by the Ombudsman against the accused, this time before the SB. After pleading not guilty to the charge before the RTC, accused moved to quash the information in the SB on the ground of double jeopardy. Issue: Is accused correct? Held: The filing of the information in the SB did not put accused in double jeopardy even though he had pleaded “not guilty” to the information earlier filed in the RTC. The first jeopardy never attached in the first place, the RTC not being a court of competent jurisdiction. There can be no double jeopardy where the accused entered a plea in a court that had no jurisdiction. The remedy of the accused, therefore, was not to move for the quashal of the information pending in the SB on the ground of double jeopardy. Their remedy should have been to move for the quashal of the information pending in the RTC on the ground of lack of jurisdiction. *4. Accused has been arraigned

No. The information charging accused of possession of 42.4 grams of marijuana is valid

Dismissal before arraignment


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Justice Gabriel T. Ingles’ Notes Compilation Flores v. Joven, 394 SCRA 339

Facts: Accused was charge with rape. Before arraignment, he filed a Motion to Quash the information, which was granted by the RTC on the ground that accused was not identified as one of the culprits by the victim and the information failed to show his participation. The private prosecutor filed a special civil action for certiorari to question the order of the RTC.

The Provincial Prosecutor resolved that accused be charged with homicide and correspondingly filed an information. Dissatisfied, the offended party appealed to the Department of Justice (DOJ) to upgrade the charge to murder. Meanwhile, despite a Motion to Defer Proceedings filed by the offended party so as to await the resolution of his appeal, the court arraigned the accused. Later, the DOJ ordered the Provincial Prosecutor to amend the Information to murder. Issue: Can accused plead double jeopardy?

Issue:

Held:

Will review of the order violate the right of the accused to double jeopardy?

No. It is settled that when the State is deprived of due process, the acquittal of accused or the dismissal of the case will not give rise to double jeopardy. Similarly, this applies where the arraignment and plea of not guilty are void. In this case, the actuation of the Provincial Prosecutor caused grave prejudice to the State. Among others, he showed bias for the accused. Despite the pendency of an appeal, he filed the information for homicide in court and did not move for deferment of the arraignment. The trial judge, likewise, committed grave abuse of discretion in rushing the arraignment of accused for homicide despite the pendency of the appeal.

Held: No. The requisites that must be present for double jeopardy to attach are: (a) a valid complaint or information; (b) a court of competent jurisdiction; (c) the accused has pleaded to the charge; and (d) the accused has been convicted or acquitted or the case dismissed or terminated without his express consent. The third requisite is not present in this case because accused has not been arraigned.

*THERE IS A TERMINATION OF THE FIRST Conditional arraignment When is there termination? People v. Espinosa, 409 SCRA 256 A: In the following:

Facts: Accused was charged with attempted estafa and attempted corruption of public officers before the Sandiganbayan. He moved for reinvestigation so that the case was remanded to the Ombudsman for reevaluation of evidence. Meanwhile, since he filed a motion to travel abroad, he was conditionally arraigned and thereafter was allowed to travel. As a result of its reinvestigation, the Ombudsman moved to withdraw the 2 cases which was granted. Thereafter, the Ombudsman filed 7 charges for Malversation of Public Funds against accused. Accused filed a motion to quash based on double jeopardy. Issue: Was there a waiver of the right against double jeopardy considering that accused agreed to a conditional arraignment? Held: No. There was a valid information, filed before a competent court, accused was arraigned and the cases were dismissed without his consent. The conditional arraignment does not amount to a waiver of the right against double jeopardy. Considering that it is a constitutional right, waiver must be clear, categorical and knowing. Thus, any condition attached to the arraignment must be unmistakable and express. Otherwise, it is deemed to be unconditional. Invalid arraignment Dimatulac v. Villon, 297 SCRA 679 Facts:

1. 2. 3.

when the accused had been previously convicted; when the accused had been previously acquitted; and when the case against the accused had been dismissed or otherwise terminated without his express consent.

PEOPLE vs. PINEDA, 219 SCRA 1 HELD: “The mere filing of two (2) informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused.” “The ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now he considered modified in that a prior conviction, or acquittal, or termination of the case without the express acquiescence of the accused is still required before the first jeopardy can be pleaded to abate a second prosecution.” Now, the law says that you have been convicted or acquitted, or a case against you have been dismissed without you express consent. That is what you mean by “the first jeopardy has already been terminated.” But take note that this is not a key for the prosecutors to file several the same cases against the


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Justice Gabriel T. Ingles’ Notes Compilation accused. The law only provides that you cannot raise the defense of double jeopardy in this situation. *But you can question the acts of the prosecution to his superior or you may file an injunction case citing the case of Brocka vs. Enrile. But definitely you cannot use double jeopardy as defense What is the difference between acquittal and dismissal of the case? A: Generally, dismissal is not on the merits. But there are dismissals which are classified as acquittal, like demurrer to evidence, or dismissal because of the violation of the right of the accused to speedy trial. In the same manner, for double jeopardy to attach, the law says, the case must have been dismissed without your express consent. So, as a general rule, when the accused himself files a motion to dismiss, he cannot invoke double jeopardy because he himself intended the dismissal of his case; it is with his express consent. Previous conviction Pendency of several cases

Can the cases be revived without placing accused in double jeopardy? Held: Yes. The order of the trial court convicting him based on his own plea of guilt is null and void. It must be emphasized that accused pleaded guilty to the rape charges, but only bargained for a lesser penalty. He did not plea bargain but made conditions on the penalty to be imposed. This is erroneous because by pleading guilty to the offense charge, accused should be sentenced to the penalty for the offense to which he pleaded. A conditional plea of guilty, or one subject to a proviso that a certain penalty be imposed upon him, is equivalent to a plea of not guilty. Thus, the judgment rendered by the court based on a void plea-bargaining is also void ab initio, so that double jeopardy will not lie.

People v. Dela Torre, 380 SCRA 596

Facts:

Facts:

Imelda Marcos was facing 3 criminal cases for violation of Central Bank Circular No. 960 before the RTC branch 158-Pasig. The Solicitor General, after arraignment, move to consolidate the cases with the 21 others against her before RTC Branch 26Manila on the ground that the acts form part of and are related to a series of similar transactions. On his own initiative and after giving a chance to the prosecution to present its side, the RTC Judge of Branch 52-Manila where the cases were re-raffled quashed the 3 informations on the ground of double jeopardy.

The RTC convicted accused of 2 counts of rape. Accused filed a Motion for Reconsideration which was denied by the RTC. The prosecution filed a notice of appeal. The Solicitor General argued that the RTC erred in penalizing the accused with reclusion perpetua in each of the 4 indictments for rape, instead of imposing the death penalty as mandated by R.A. 7659. Issue: Can a judgment of conviction be appealed for the sole purpose of increasing the penalty?

Issue: Was the quashal proper?

Held:

Held: No. An essential requisite of double jeopardy is that the first jeopardy must have attached. Other than the Solicitor General’s allegation of the pending cases in Branch 26-Manila, the judge cannot tell whether accused had been arraigned. Even assuming that there was already an arraignment and plea with respect to those cases in Branch 26-Manila which the judge used as basis to quash the 3 informations pending in his sala, still the first jeopardy has not yet terminated. Precisely, those cases are still pending and there was as yet no judgment on the merits. Accused was not convicted, acquitted nor the case against her dismissed or otherwise terminated. *b. Void conviction due to an invalid plea bargaining

Facts:

Issue:

Appeal to increase penalty

People v. Nitafan, 302 SCRA 424

People v. Magat, 332 SCRA 517

Accused was charged with 2 counts of incestuous rape. He pleaded guilty but bargained for a lesser penalty, and was sentenced to 10 years imprisonment for each offense. Three months later, complainant moved for the revival of the cases on the ground that the penalty was “too light.” The judge granted the motion.

No. An appeal by the prosecution on the ground that the accused should have been given a more severe penalty will violate the right of the accused against double jeopardy. Even assuming that the penalties imposed by the RTC w ere erroneous, these cannot be corrected on appeal by the prosecution. Whatever error may have been committed by the lower court was merely an error of judgment and not of jurisdiction. It did not affect the intrinsic validity of the decision. This is the kind of error that can no l onger be rectified on appeal by the prosecution no matter how obvious the error may be. d. Annulment of judgment Palu-ay v. CA, 293 SCRA 358 Facts: Palu-ay filed a case against Pulmones for frustrated homicide but after trial Pulmones was convicted only of physical injuries through reckless imprudence. Dissatisfied with the decision, Paluay filed a case for annulment of judgment with the CA.


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Justice Gabriel T. Ingles’ Notes Compilation Issue: Can the case prosper? Held: No. A review of the decision at the instance of the prosecution would violate the right of the accused against double jeopardy. It cannot be argued that the decision is void for lack of due process since Palu-ay was not deprived of the opportunity to be heard. In this case, a hearing was held during which the prosecution and the defense were heard on their evidence. Thereafter, judgment was rendered on the basis of the evidence presented. Consequently, any error made by the trial court in the appreciation of evidence was only an error of judgment but not of jurisdiction so as to render the judgment void. *e. Effect of appeal by accused People v. Rondero, 320 SCRA 383 Facts: Accused was charged with rape with homicide. The RTC, however, convicted him only of homicide and sentenced him to suffer reclusion perpetua. He appealed his conviction to the Supreme Court.

present appeal is given due course, the whole case against the accused becomes open to review. It thus follows that a penalty higher than that which has already been imposed by the trial court may be meted out to him. The appeal by his employer would thus violate his right against double jeopardy, since the judgment against him could become subject to modification without his consent. *6. Previous acquittal Revising a judgment of acquittal Argel v. Pascua, 363 SCA 381 Facts: In a decision dated July 22, 1993, but promulgated only on Aug. 13, 1993, Judge Pascua acquitted accused of murder thinking that there was no witness who positively identified him as the perpetrator. After her attention was called by complainant, and after reading the testimony of the witness which was not attached to the records originally, Judge Pascua discovered her error and “revised” her previous decision. On Aug. 19, 1993, Judge Pascua promulgated a new one convicting the accused of the crime of murder. Issue:

Issue:

Can the judge revise the decision from acquittal to conviction?

May he be convicted of the original charge and sentenced to death without double jeopardy?

Held:

Held: Yes. When an accused appeals from the sentence of the trial court, he waives his right against double jeopardy and throws the whole case open for review of the appellate court, which is then called to render judgment as the law and justice dictate, whether favourable or unfavourable, and whether they are the subject of the assigned errors or not. This precept should be borne in mind by every lawyer of an accused who unwittingly takes the risk involved when he decides to appeal a sentence.

No. It is an elementary rule that a decision once final is no longer susceptible to amendment or alteration except to correct errors which are clerical in nature. In criminal cases, a judgment of acquittal is immediately final upon its promulgation. It cannot be recalled for correction or amendment since the inherent power of the court to modify i ts order does not extend to a judgment of acquittal in a criminal case. The judge cannot therefore “revise” her decision without violating the constitutional proscription on double jeopardy.

Philippine Rabbit v. People, 427 SCRA 456

*As a rule, an acquittal rendered by a court of competent jurisdiction after trial on the merits is immediately final and executory and cannot be appealed as it will violate the right of the accused against double jeopardy (People v. Sandiganbayan, et al., GR No. 173396, Sept. 22, 2010).

Facts:

*Exception

Accused was found guilty of reckless imprudence resulting to triple homicide, sentenced to suffer imprisonment and pay civil liability to the heirs of the victims. During trial he jumped bail and remained at-large at the time of conviction.

The only instance when double jeopardy will not attach is when the trial court acted w ith grave abuse of discretion amounting to lack or excess of jurisdiction, such as where the prosecution was denied the opportunity to present its case or where the trial was a sham. However, while certiorari may be availed of to correct an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice (People v. Tan, GR No. 167526, July 26, 2010)

*f. Appeal by employer of civil liability

Issue: Can his employer file a notice of appeal in its own behalf to question the civil liability considering that it is subsidiarily liable in the event that accused is insolvent? Held: No. When accused jumps bail, he is deemed to have abandoned his appeal. Consequently, the judgment against him has become final and executor. If his employer appeals, his aim is to have the accused-employee absolved of his criminal responsibility and the judgment reviewed as a whole. If the

A judgment rendered with grave abuse of discretion or without without due process of law is void, does not exist in legal con temptation and thus, cannot be the source of an acquittal (People vs. Sandiganbayan [Fourth Division], 559 SCRA 449) In People vs. Asis, GR No. 173089, Aug. 25, 2010 the Court unequivocally ruled that a petition for certiorari under Rule 65,


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Justice Gabriel T. Ingles’ Notes Compilation not appeal, is the remedy to question a verdict of acquittal whether the at the trial court or at the appellate court.

judgment are not to be confused w ith errors in the exercise of jurisdiction.

*b. Previous dismissal by the prosecutor

Acquittal due to legal error

Vincoy v. CA, 432 SCRA 36

People v. Laggui, 171 SCRA 305

Facts:

Facts:

Accused was convicted of estafa by the RTC of Pasig which conviction was affirmed by the CA. On appeal to the Supreme Court, he alleged double jeopardy considering that a similar complaint for estafa was previously filed by the same complainant before the City Prosecutor’s Office of Pasay which was dismissed.

The judge erroneously acquitted the accused of violating B.P. 22 thinking that the information was defective for failure to state that he knew, when he issued the check, that he would not have sufficient funds for its payment in full upon its presentment to the drawee bank. In the opinion of the trial judge, the information did not charge an offense, hence, he dismissed it.

Issue:

Issue:

Is the contention correct?

May the acquittal be reviewed in a petition for certiorari?

Held:

Held:

No. Dismissal of a case during preliminary investigation does not constitute double jeopardy since a preliminary investigation is not part of the trial and is not the occasion for the full and exhaustive display of the parties’ evidence but only such as may engender a well-founded belief that an offense has been committed and accused is probably guilty thereof. For this reason, it cannot be considered equivalent to a judicial pronouncement of acquittal.

No. Although its decision is erroneous, that decision may not be annulled or set aside because it amounted to a judgment of acquittal. It became final and executory upon its promulgation. The State may not appeal that decision for it would place the accused twice in jeopardy of punishment for the offense in violation of his constitutional right against double jeopardy.

Acquittal after trial on the merits

People v. CA, 423 SCRA 605

People v. Velasco, 340 SCRA 207

Facts:

Facts:

Accused were convicted by the RTC of Homicide and Attempted Murder. On appeal, the CA acquitted them. It ruled that the sitting position of one accused made it impossible for him to shoot the victim, while the other accused acted in selfdefense. Alleging that the CA committed grave abuse of discretion in acquitting the accused despite overwhelming evidence, the Solicitor General challenges the acquittal in a Petition for Certiorari under Rule 65 of the Rules of Court.

Mayor Galvez was acquitted of murder and frustrated murder, as well as of illegal possession of firearm after trial on the merits. The ground for acquittal was insufficiency of evidence on the first charge, and a finding that the act charged did not constitute a violation of law in the second. Challenging the acquittal, the Solicitor General filed a Petition for Certiorari contending that Judge Velasco committed grave abuse of discretion and arbitrariness. Pointing out that the judge deliberately disregarded certain facts and evidence on record, he asks that the cases be reviewed and the acquittal be nullified.

e. Acquittal on appeal

Issue: May the Supreme Court review the acquittal without violating the rights of the accused against double jeopardy?

Issue: Held: Can a judgment of acquittal be reversed if no retrial is required without placing the accused in double jeopardy? Held: No. The doctrine that double jeopardy may not be invoked after trial may apply only when the Court finds that the criminal trial was a sham because the prosecution was denied due process. Here, trial on the merits was held during which both government and accused had their respective day in court. The petition goes deeply into the trial court’s appreciation and evaluation of the evidence. A reading of the questioned decision shows that the judge considered the evidence taken at the trial. While it may have resulted in possible lapses in evidence evaluation, it nevertheless does not detract from the fact that they were considered. This consequently exempts the act from the writ of certiorari’s requirement of excess or lack of jurisdiction. Errors of

No. The acquittal of the accused by the lower court is not subject to review via the extraordinary writ of certiorari as this would constitute a violation of the Double Jeopardy Clause of the Constitution. In the absence of a finding of mistrial, i.e. the criminal trial was a sham, as in Galman v. Sandiganbayan, a judgment of acquittal is final and unappealable on the g round of double jeopardy, whether it happens at the trial court level or at the CA. f. Exception Merciales v. CA, 379 SCRA 345

Facts:


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Justice Gabriel T. Ingles’ Notes Compilation After presenting 7 witnesses in a trial for rape with homicide, the prosecutor moved for the discharge of one accused to be state witness. The judge required him to present evidence to warrant the discharge but he refused contending that it was not necessary since he had been admitted to the Witness Protection Program. While the issue was being threshed before the SC, the accused opposed any resetting on the ground of speedy trial. Thus, instead of presenting additional witnesses, even if an NBI agent was available, the prosecutor rested his case. The accused filed a demurrer to evidence, and the judge dismissed the cases on the ground of insufficient evidence. Private complainant moved to annul the decision but accused claimed double jeopardy.

COMPLAINANT: “No, why did you ask for reinvestigation? Di ba, the purpose is that it will lead to the dismissal of the case? So, when you filed a motion for reinvestigation, in effect, you are seeking a dismissal with your express consent.”

Issue:

ACCUSED: “No! Express consent is different from intention. When I filed a motion for reinvestigation, my intention was to let the case be dismissed, but I did not give my express consent. While I may have intended to let the case be dismissed upon moving for reinvestigation, I never give my express consent for the dismissal of the case. It was the prosecutor himself who did it.”

Is the accused correct?

ISSUE: Is there double jeopardy?

Held:

HELD: YES, there is double jeopardy. When you say express consent, the consent must be categorical, clear. You cannot infer that by simply asking for reinvestigation. You cannot infer that there is express consent; that is not within the concept.

No. Double jeopardy will not lie. The prosecutor was guilty of nonfeasance when he failed to protect the interest of the State. He knew that he had not presented sufficient evidence and yet he deliberately failed to present an available witness. He also violated the Rules of Court w hen he refused to present evidence to support the discharge of one accused to be State witness. In addition, the judge, too, was guilty of non-feasance, when despite his knowledge that the evidence was insufficient, he passively watched the prosecutor bungle the case. He should have motu propio called additional witnesses for the purpose of questioning them himself. Considering, therefore, that both the State and complainant were deprived of their day in court, there was a violation of due process so that the acquittal of accused was null and void. Thus, double jeopardy will not apply. *DISMISSAL WITHOUT THE EXPRESS CONSENT OF THE ACCUSED

*“Express consent has been defined as that which is directly given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. This is hardly what the accused gave. What they did was merely to move for reinvestigation of the case before the prosecutor. To equate this with express consent of the accused to the dismissal of the case in the lower court is to strain the meaning of ‘express consent’ too far. Simply, there was no express consent of the accused when the prosecutor moved for the dismissal of the original Informations.” Previous dismissal

PEOPLE vs. VERGARA, 221 SCRA 960 FACTS: Vergara was accused of frustrated murder for allegedly conspiring with some people. While the case is pending, the accused asked the provincial prosecutor for a reinvestigation of the case. The request was granted. After reinvestigation, the prosecutor made a finding that there was no crime because the accused acted in self-defense. Therefore, the prosecutor moved for the dismissal of the case in court. The trial court granted the motion for dismissal of the case for frustrated murder. However, when the fiscal made a finding that there was no probable cause, in the meantime the complainant appealed such finding to the Secretary of Justice. The recommendation of the prosecutor was disapproved. Sabi ng DOJ, “No, there is a case here. Provincial prosecutor, ire-file mo.” So, there was another information for frustrated murder filed against the same accused. This time, the accused pleaded Double Jeopardy. Bakit? According to the accused: ACCUSED: “The cases were dismissed upon motion of the prosecutor; I was not the one who filed the motion. So, when the case was dismissed, it was dismissed without my express consent.”

Dismissal without consent Tupaz v. Ulep, 316 SCRA 118 Facts: Two informations were filed against the accused for nonpayment of deficiency corporate income tax in violation of the Tax Code of 1977. After she was arraigned, the prosecutor moved for the dismissal of one of the cases thinking that the 2 were identical with each other. The judge granted the motion. Later, finding out that he committed a mistake, the prosecutor moved for the reinstatement of the dismissed information which was granted by the court. Issue: Did the reinstatement of the information violate the right of the accused against double jeopardy? Held: Yes. An accused is placed in double jeopardy if he is again tried for an offense for which he has been convicted, acquitted or the indictment against him was otherwise dismissed without his express consent. In this case, there was a valid complaint filed against her to which she pleaded not guilty. The court dismissed


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Justice Gabriel T. Ingles’ Notes Compilation the case at the instance of the prosecutor without asking her consent. Such consent must be expressed. As her consent was not expressly given, the dismissal of the case must be regarded as final.

and VOID. Meaning, an order of dismissal of a case will constitute double jeopardy on the assumption that the order of dismissal was a valid order of dismissal. What is the usual reason why an order of dismissal is void?

*Dismissal with consent Sta. Rita v. CA, 247 SCRA 484 Issue: Where accused files a motion to dismiss which is granted, but on appeal the order of dismissal is reversed, can he claim double jeopardy if the case is reinstated? Held: No. There are only 2 instances where double jeopardy will attach notwithstanding the fact that the case was dismissed with the express consent of the accused. The first is where the ground for dismissal is insufficiency of evidence for the prosecution, and the second is where the criminal proceedings have been unreasonably prolonged in violation of the right to speedy trial. *Exception to rule on consent People v. Verra, 382 SCRA 542 Facts: Accused was charged with murder and pleaded not guilty. On the same day, the prosecution called to the stand the wife of the victim who testified that she was no longer interested in pursuing the case and the 3 other witnesses had turned hostile. Thereafter, the prosecution, joined by the accused moved for the dismissal of the case which the judge granted. Later, 2 sisters of the victim assailed the allegation of lack of interest. Further, 2 witnesses appeared manifesting their willingness to te stify. Issue: May the case be prosecuted anew? Held: No. The information was valid and it was filed before a competent court. Accused was arraigned and the case was terminated when the judge ordered its dismissal. The State cannot claim violation of due process since it was represented by the public prosecutor who was present at all stages. More importantly, it was the prosecutor, who moved for the dismissal. The State cannot allege fraud to nullify the judgment because if there was fraud, it was practiced by its own witness, and not by the adverse party or the accused. *While it is true that the accused joined the prosecution in praying for the dismissal of the case, double jeopardy will attach because the basis of the dismissal was insufficiency of evidence due to the desistance of complainant and her testimony that her witness had turned hostile. (in other words, the dismissal is based on evidence or the lack of proof beyond reasonable doubt) One last point. * According to the law, if a case is dismissed without your express consent, that could be a basis for double jeopardy. HOWEVER, jurisprudence says, an order dismissing a case will NOT constitute double jeopardy if the order of dismissal is NULL

The usual reason is when the prosecution was deprived of due process. That has been exemplified in many cases. One of the cases is Senator Aquino et al. Na-acquit man yan sila ba. These people were already acquitted by the Sandiganbayan. How come nabalik ang kaso? On the theory that everything was prearranged including the acquittal. The SC said, the acquittal of the case is null and void because the prosecution was deprived of due process in the sense that no matter what it does, the acquittal of the accused was already pre-ordained. So there is no double jeopardy. That has been applied in many cases like in the case of

PEOPLE vs. MOGOL, 131 SCRA 296 FACTS: The accused was charged with physical injuries. After trial in the MTC, the court discovered that it should not have been physical injuries, rather it should have been frustrated murder because there was intent to kill eh. The MTC dismissed the case of physical injuries and told the fiscal to file information for frustrated murder. The accused claimed that he was charged for the same act. Thus, he moved for the dismissal of the frustrated murder case. ISSUE: Is there double jeopardy? HELD: NONE. There was no double jeopardy because the order of the trial court dismissing the physical injury case is wrong. It was a void order because what the judge should have done is to continue trying the case even if there was an error in the offense charged. So, if the accused would be convicted, it is for physical injuries. In other words, you cannot order dismissal and then re-file the case for frustrated murder. Because the order dismissal is void, there is no double jeopardy. However, there was one dissenting justice in the case of Mogol – former Justice Makasiar. He said that “there is double jeopardy as the case had already been tried and submitted for decision where the MTC judge ordered the physical injury to be dismissed and ordered the filing of a new case for frustrated murder in the RTC. Frustrated murder includes physical injuries. Therefore, dismissal of the latter resulted in double jeopardy.” If you look at it, Makasiar appears to be correct because all the elements are there. But the trouble is, according to the SC, the order of dismissal is void, there was no valid dismissal. So,the charge for physical injury was reinstated. GORREON vs. RTC OF CEBU, 213 SCRA 138 FACTS: The case was set for pre-trial for 2 days (September 27 and 28). On the first day of the trial, the offended party


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Justice Gabriel T. Ingles’ Notes Compilation was there pero wala ang accused. The court said, “We will have to cancel the hearing for today and tomorrow on the presumption that maybe they did not receive the notice.” The trouble is the following day, the hearing of the case still appeared in the court calendar, even if it was supposed to be cancelled. This time, only the accused appeared. Of course, why would the offended party be there when it was already cancelled. Since the accused was present for trial, but the prosecution was not ready because neither he nor his witness appeared, the court dismissed the case for failure of the complainant to appear and to testify. [Well, the court and the prosecution should have remembered that the hearing is already cancelled.] So, when the complainant learned about it, he complained. They looked at at the transcript of stenographic notes of what transpired the day before and realized the mistake. ISSUE: Is there double jeopardy if the action will be filed again? HELD: NONE. “The erroneous dismissal order was issued capriciously and arbitrarily; it unquestionably deprived the State of a fair opportunity to present and prove its case. Thus, its right to due process was violated. The said order is null and void and hence, cannot be pleaded to bar a re-opening of the case on the ground of double jeopardy. Consequently, the first jeopardy was not terminated and no second jeopardy threatened the accused.” “The Judge, Clerk of Court and the prosecution should shoulder the blame because unless amnesia suddenly struck all of them simultaneously, it cannot be imagined that in a brief span of about twenty-four (24) hours, they had all forgotten about the order dictated in open court cancelling the hearing for September 27 and 28, 1990. [The order of cancellation was given the day before, and the following day nobody remembered about it.] For the prosecutor who orally moved for such cancellation and the Judge himself who dictated the said order, no plausible explanation may be offered for such lapse.”

Held: No, the invalid order of dismissal made by the trial court cannot be used as basis for a claim of double jeopardy. The judge exceeded his authority when he dismissed the case without giving the prosecution a right to be heard, hence there was a violation of due process. Failure of the prosecution to offer its exhibits is not a ground to dismiss the case. Even without any documentary exhibits, the prosecution could still prove its case through the testimonies of witnesses. Thus, when the trial court reconsidered its order of dismissal, it merely corrected itself.

Double jeopardy; gross negligence of special prosecutor.

People of the Philippines v. Hon. Sandiganbayan (Fourth Division), Imelda R. Marcos, Jose Conrado Benitez and Gilbert C. Dulay, G.R. No. 153304-05, February 7, 2012

Gross negligence exists where there is want or absence of, or failure to exercise slight care or diligence, or the entire absence of care. It involves a thoughtless disregard of consequences without exerting any effort to avoid them. Petitioner State failed to clearly establish the gross negligence on the part of the special prosecutor (or to show or even allege that there was collusion in the principal case between the special prosecutor and the respondents) that resulted in depriving the petitioner of its due process rights; and, consequently prevent the application

That is a demonstration of the rule that when the order of dismissal is null and void, you cannot plead double jeopardy.

of the rule on double jeopardy. If at all, what the records emphasized, as previously discussed, is the weakness of the

People v. Alberto, 387 SCRA 615 prosecution’s evidence as a whole rather than the gross Facts:

negligence of the special prosecutor. The petitioner’s position is

In the middle of the trial, the judge dismissed the case against accused for failure of the prosecution to submit its formal offer of exhibits. The prosecution filed a motion for reconsideration. The judge granted the motion and the prosecution continued to present its evidence. After accused was convicted, he claimed that the reinstatement of the case violated his right against double jeopardy. Issue:

therefore rejected. .

*C.) ASSUMING THAT ALL THE REQUISITES OF DOUBLE JEOPARDY, ARE PRESENT, THE ACCUSED IS PROTECTED FROM BEING PROSECUTED FOR WHAT OFFENSE? Assuming the accused has already been convicted, acquitted or the case is dismissed without his express consent, and all the

Is the accused correct?


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Justice Gabriel T. Ingles’ Notes Compilation requisites of double jeopardy are present, the accused cannot be convicted for: 1. 2.

3.

4.

for the same offense; or for an attempt to commit the same offense. [If you are convicted or acquitted for a consummated offense, you cannot be charged or convicted or acquitted for the lesser stage;] or for frustration or attempt thereof; [The acquittal, conviction or dismissal of the consummated crimes carries automatically the frustrated or attempted stage of the same crime.] or for any other offense which necessarily includes or is necessarily included in the offense charged in the former complaint.

BEING PROSECUTED FOR THE SAME OFFENSE What is troublesome here is being prosecuted for the same offense. This has been the subject of so many decided cases, whether it is the same offense or not. *“Same offense” test Estafa and illegal recruitment People v. Saley, 291 SCRA 715 Facts: For recruiting several individuals to work abroad without license and for pocketing the fees she collected, accused was convicted of 11 counts of estafa through false representation and 6 counts of illegal recruitment, one committed on a large scale.

by the CA on appeal. The CA held that the crime committed was Seduction, not Abduction. The prosecutor thus charged him anew with Qualified Seduction. Issue: Is there double jeopardy? Held: No. An examination of the elements of these two crimes would show that although they may have arisen from the same set of facts, they are not identical offenses as would make applicable the rule on double jeopardy. There are similar elements between Consented Abduction and Qualified Seduction, namely: (1) that the offended party is a virgin, and, (2) that she must be over 12 and under 18 years of age. However, 2 elements differentiate the 2 crimes. Consented Abduction also requires that: (1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and , (2) the taking away of the offended party must be with lewd designs. On the other hand, an information for Qualified Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or relationship, and, (2) the offender has sexual intercourse with the woman. Moreover, the very nature of these 2 offenses would negate any identity between them. As this Court has stated:

Issue: As the acts giving rise to the 2 sets of offenses are common, are the convictions violative of double jeopardy? Held: 8No, because they are different offenses with distinct elements. The crime of illegal recruitment is malum prohibitum where criminal intent is not necessary for conviction, while estafa is malum in se where criminal intent is necessary for conviction. In large scale illegal recruitment, the elements are: 1] the person charged must have undertaken recruitment activities, 2] he does not have a license, and 3] it is committed against 3 or more persons. In estafa, the elements are: 1] the accused has defrauded another by abuse of confidence or by means of deceit, and 2] damage or prejudice capable of pecuniary estimation is caused to the offended party. Consented abduction and qualified seduction

“... the gravamen of the offense of the abduction of a woman with her own consent, who is still under the control of her parents or guardians is “the alarm and perturbance to the parents and family” of the abducted person, and the infringement of the rights of the parent or guardian. But in cases of seduction, the gravamen of the offense is the wrong done the young woman who is seduced ...” [U.S. v. Jayme, 24 Phil. 90, 94 (1913). ] Violation of RA 3060 and obscene exhibitions People v. City Court, 154 SCRA 175 Facts: Accused was charged of violation of Sec. 11, R.A. 3060 for exhibiting publicly a motion film which was not submitted for preview to the Board of Censors for Motion Pictures [BCMP]. For the same act, he was also charged with violation of Art. 201 (3) of the Revised Penal Code, particularly for exhibiting for public viewing an indecent and immoral motion picture.

Perez v. CA, 168 SCRA 236

Issue:

Facts:

Would conviction in one case bar prosecution of the other on the ground of double jeopardy?

The lower court convicted accused of the crime of Consented Abduction but he was acquitted

Held:


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Justice Gabriel T. Ingles’ Notes Compilation No. The 2 offenses are different. The gravemen of the offense defined in R.A. 3060 which is malum prohibitum is the public exhibition of any motion picture which has not been previously passed by the BCMP. The motion picture may not be indecent or immoral, but if it has not been previously approved by the BCMP, its public showing constitutes a criminal offense. On the other hand, the offense punished in Art. 201[3] of the RPC which is malum in se, is the public showing of indecent or immoral plays, scenes, acts, or shows, not just motion pictures. The nature of both offenses also shows their essential difference. Considering these differences in elements and nature, there is no identity of the offenses here involved for which legal jeopardy in one may be invoked in the other. While in a public place, Maya fired a machine gun, thereby causing panic and physical injuries to certain persons. She was charged with serious physical injuries through reckless imprudence for firing the gun in public. Subsequently, she was charged with serious public disturbance in a public place. Is there double jeopardy? NONE. While there was only a single act, two distinct offenses resulted therefrom namely: (1) physical injuries which is a crime against persons, and (2) public disturbance which is a crime against public peace and order. (People vs. Bacolod, 89 Phil. 621) Accused was caught fishing with explosives. He was first prosecuted for illegal fishing and subsequently, for illegal possession of explosives. Is there DOUBLE JEOPARDY? NONE. These are two (2) distinct offenses, the same being punished by two different laws. There is a law for illegal fishing and another for illegal possession of explosives. (People vs. Tinamisan, L- 4081, January 29, 1952) A complaint for adultery was filed against Miriam and Cholo covering the period from the year 1946 to March 14, 1947. Pleading guilty, the two were accordingly sentenced. On September 17, 1948, a second complaint for adultery was filed against Miriam and Cholo covering the period of March 15, 1947 to the date of the filing of the second complaint. The two moved to quash the second complaint on the ground of double jeopardy. Is there double jeopardy? NONE. Adultery is a crime of result and not of tendency; it is an instantaneous crime which is consummated at the moment of the carnal union. Each sexual intercourse constitutes a crime of adultery, so that there may be as many complaints for adultery as there are adulterous acts committed. I t is only one relationship but every carnal act is one crime. (People vs. Zapata, 88 Phil. 688) An accused stole a revolver, tinago niya. It turned out to be unlicensed. He was first prosecuted for theft of firearm and he was convicted. He was subsequently prosecuted for illegal possession of firearm. Is there double jeopardy?

NONE. The offenses are different. Theft is consummated upon the taking, while illegal possession involves not only the taking but also the possession and intent to use the firearm. (People vs. Remerata, 98 Phil. 413) The accused, without a license, drove his jeep recklessly such that it turned turtle resulting into the death of four of its passengers. Prosecuted for multiple homicide through reckless imprudence; he was convicted. Subsequently, he was prosecuted for driving without a license under the Land Transportation Law. Is there DOUBLE JEOPARDY? NONE. The two offenses are distinct: one is punished by the Penal Code and the other by special law. (People vs. Guanco, 83 Phil. 639) The accused married twice and lived with the second woman as husband and wife for quite some time. Prosecuted for bigamy, he was convicted. Subsequently, he was prosecuted for concubinage. Is there DOUBLE JEOPARDY? NONE. The two offenses are distinct. In bigamy, marriage is an essential element. You can only commit bigamy if you are married and you marry another. But in concubinage, marriage is not an essential element – mere living together as husband and wife is sufficient. (People vs. Schneckenburger, 72 Phil. 413) If you are a married man and you live as husband and wife with another woman, that is concubinage even if you will not marry her. PEREZ vs. COURT OF APPEALS, 168 SCRA 236

FACTS: Accused was charged with consented abduction. He was acquitted. The court said that it was qualified seduction pala, and not consented abduction. So, another complaint for seduction was filed against the accused. The accused pleaded double jeopardy. Is there double jeopardy? HELD: NONE. Although they may have arisen from the same set of facts, [and they are both crimes against chastity] they are not identical offenses as would make applicable the rule on double jeopardy. There are similar elements between Consented Abduction and Qualified Seduction, namely: (1) that the offended party is a virgin, and, (2) that she must be over twelve (12) and under eighteen (18) years of age. However, two elements differentiate the two crimes. Consented Abduction, in addition to the two common elements, requires that: (1) the taking away of the offended party must be with her consent, after solicitation or cajolery from the offender, and, (2) the taking away of the offended party must be with lewd designs. On the other hand, an information for Qualified Seduction also requires that: (1) the crime be committed by abuse of authority, confidence or relationship, and, (2) the offender has sexual intercourse with the woman [which is not required in abduction].


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Justice Gabriel T. Ingles’ Notes Compilation NIERRA vs. DACUYCUY, 181 SCRA 1 MALLARI vs. PEOPLE, 168 SCRA 422 FACTS: A check bounced. Two cases were filed: (1) Estafa, under Article 315, RPC, and (2) BP 22. Is there DOUBLE JEOPARDY? HELD: NONE. The two crimes are distinct. While, in filing of the two sets of information may refer to identical acts, the prosecution cannot be limited to one offense because a single criminal act may give rise to a multiplicity of offenses with different elements. Prosecution for the same act is not prohibited. What is forbidden is prosecution for the same offense.

FACTS: The accused wanted to mortgage two (2) lots to the victims, let us say for P3,000, at P1,500 each. Sabi ng victim, “Kulang man ang kwarta ko. I will only lend you P1,500, good for one lot lang. You ask my mother-in-law baka may pera siya.” Meron man din. So hinati – the other lot was mortgaged to the mother-in-law of the victim for P1,500. It turned out that all those deed of mortgage were falsified. Two cases were filed against the accused because there were two victims.

However under the Constitution, if the same act is punished by a national law and an ordinance, iba na yan! Conviction or acquittal in either one will constitute double jeopardy – that is the exception. But, if you are violating two national laws, e.g. BP 22 and Estafa, then there is no double jeopardy.

ISSUE: Is there double jeopardy?

HOWEVER, there are cases where the crimes are not identical but double jeopardy can be applied. The best example is delito continuado because the SC said the protection against double jeopardy may be extended to a case of a single criminal act impelled by a single criminal intent, resulting into two or more juridically identical offenses.

ENRILE vs. AMIN, September 13, 1990 FACTS: Enrile was charged for rebellion during the coup d’ etat during the time of President Aquino for conspiring with Honasan. During the highlight of the coup attempt, nandun si Honasan sa birthday party ni Enrile. While the case for rebellion was pending, another case was file against him under PD No. 1829 for harboring or concealing fugitives. The prosecution contended that harboring, concealing a fugitive is punishable under a special law, while rebellion is punishable under the Penal Code.

Give examples of the rule mentioned above. The following: Mr. Cadungog stole two (2) fighting cocks in the same place. He was prosecuted for stealing one cock. He cannot be prosecuted anymore for stealing the other cock. Although there are two acts of taking but there is only one criminal intent – that is where double jeopardy will arise. (People vs. De Leon); A person was charged with illegal importation of blasting caps – a device for preparing explosives – cannot be subsequently prosecuted for illegal possession of the same, for there can hardly be importation without possession. (People vs. Elkanish, 90 Phil. 53); A person charged with reckless driving under the LTO Law cannot be subsequently charged with damage to property through reckless imprudence because reckless driving is the essential element of both offenses. (People vs. Diaz, 94 Phil. 714; People vs. Belga, 100 Phil. 996); A person convicted of illegal possession of opium cannot be subsequently prosecuted for illegal possession of opium pipe found together with the opium. (U.S. vs. Pho Chi, 20 Phil. 104); Possession of two or more unlicensed firearms in one place constitutes but one offense so that conviction for illegal possession of one firearm is a bar to a subsequent prosecution for possession of the other or others. (U.S. vs. Gustilo, 19 Phil. 208)

HELD: YES. There is only one crime committed. There is only one intent to defraud. It is just accidental that the intended victim only got one-half. There is a similar crime consisting of a series of acts, but all arising from one criminal resolution.

HELD: The prosecution is wrong. In the light of the absorption doctrine, the prosecution must fail. All crimes which are mere components of rebellion or are committed in furtherance thereof are absorbed in rebellion. “The theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political offense.” And yet, the two crimes are punishable by two different statutes. Technically, they are not the same offense and yet one absorbs the other because when you are in conspiracy with the rebels, necessarily you harbor each other. You cannot be expected to be a traitor to each other. So, how can you separate one crime from the others? SANTIAGO vs. GARCHITORENA, 228 SCRA 214 FACTS: Miriam Santiago was charged criminally with violation of Anti-Graft and Corrupt Practices Act allegedly committed by her by favoring unqualified aliens when she was still the Immigration Commissioner. Later, the prosecution sought to change the charge by filing thirty-two (32) amended information since 32 aliens were benefited. So, 32 cases were filed. HELD: The prosecution is directed to consolidate the 32 informations into 1 information charging only 1 offense. “The concept of delito continuado, although an outcrop of the


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Justice Gabriel T. Ingles’ Notes Compilation Spanish Penal Code, has been applied to crimes penalized under special laws citing Article 10 of the RPC. The 32 Amended Informations aver that the offenses were committed on the same period of time, i.e., on or about October 17, 1988. The strong probability even exists that the approval of the application for the legalization of the stay of the 32 aliens was done by a single stroke of the pen, as when the approval was embodied in the same document.” FOR ANY OTHER OFFENSE WHICH NECESSARILY INCLUDES OR IS NECESSARILY INCLUDED IN THE OFFENSE CHARGED IN THE FORMER COMPLAINT Thus, a charge of Murder, double jeopardy for Homicide; a charge for Homicide, double jeopardy for murder. Either one eh, baliktaran! Basta one offense is included in the other. Robbery includes theft; serious physical injuries includes less serious physical injuries and slight physical injuries. (People vs. Martinez, 55 Phil. 6; People vs. Belga, 100 Phil. 996) Thus, in the plea-bargaining, when the accused pleads guilty to a lesser offense included in the crime charged with consent of the prosecution and the offended party, there is double jeopardy already. You cannot be charged anymore for a lighter offense. That is covered by double jeopardy rule.

in section 1(f) of Rule 116. (Section 7[c])

THE GRAVER OFFENSE DEVELOPED DUE TO SUPERVENING FACTS ARISING FROM THE SAME ACT OR OMISSION CONSTITUTING THE FORMER CHARGE *This is also known as the supervening fact doctrine, also known as the Melo Doctrine because this rule was laid down in the case of Melo vs. People, 45 Phil. 766. Exception to same offense test People v. Degamo, 402 SCRA 133 Facts: After accused pleaded not guilty to the charge of rape, it was found out that the victim became insane because of the act committed by accused. The prosecutor amended the information to include the allegation that by reason of the rape, the victim became insane. Issue: Did the amendment violate the right of accused against double jeopardy?

PEOPLE vs. RELOVA, supra HELD: “The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission by simply adding or subtracting essential elements. Under the theory of appellant the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin.” EXCEPTIONS TO THE DOUBLE JEOPARDY RULE

What are the exceptions to the double jeopardy rule? There are three (3) exceptions, under Section 7: 1.

2.

3.

the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (Section 7 [a]) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; (Section 7 [b]) or the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided

Held: No. Amendment of an information to charge a more serious offense is permissible and does not constitute double jeopardy even where the accused was already arraigned and pleaded not guilty to the charge, where the basis of the more serious charge did not exist, but comes as a subsequent event. In this case the basis for the amendment was the psychosis of complainant which was determined after the filing of the information. EXAMPLE: Mortz stabbed Kim. Kim was confined in the hospital. Mortz was charged with frustrated homicide. He pleaded guilty. After 2 days, Kim died. So the fiscal amended the information to consumated homicide. Mortz pleaded guilty double jeopardy. Under the Melo doctrine, there is no double jeopardy because of the supervening fact of death of the victim arising from the same act or omission constituting the former charge – the graver offense developed due to the supervening fact. The reasoning in Melo is that, when the accused was charged with frustrated homicide, the crime of consummated homicide was not yet in existence because the victim is still alive. So the crime of consummated homicide started to come out after the arraignment. Therefore, the information can be changed to consummated homicide. *THE FACTS CONSTITUTING THE GRAVER CHARGE BECAME KNOWN OR WERE DISCOVERED ONLY AFTER A PLEA WAS ENTERED IN THE FORMER COMPLAINT OR I NFORMATION So even if the graver offense was already existing before the arraignment but it became known only after the plea, there is no more double jeopardy. This amendment created another exception not covered by the Melo doctrine.


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Justice Gabriel T. Ingles’ Notes Compilation *THE PLEA OF GUILTY TO THE LESSER OFFENSE WAS MADE WITHOUT THE CONSENT OF THE PROSECUTOR AND OF THE OFFENDED PARTY EXCEPT AS PROVIDED IN SECTION 1(F) OF RULE 116.

In plea-bargaining, or when one pleads guilty to a lesser offense – it must be with the consent of the prosecutor and the offended party. And remember, once there is a plea-bargaining, the accused cannot be charged anymore for the graver offense except as provided in Section 1 [f], Rule 116 – i.e., when during the plea-bargaining the offended party will not show up, in which case, the consent of the prosecutor alone is required. But suppose Mortz has already started serving his sentence for frustrated homicide?

When an information is amended, is accused entitled to another preliminary investigation? Answer: Before the plea is taken, the information may be amended in substance and/or form, without leave of court; but if amended in substance, the accused is entitled to another preliminary investigation, unless the amended charge is related to or is included in the original charge. Thus, the rule is: Before or after a plea, a substantial amendment in an information entitles an accused to another preliminary investigation. However, if the amended information contains a charge related to or is included in the original information, a new preliminary investigation is not required. Effects of grant of motion to quash the complaint or information We will take up Section 5 together with Section 6.

There is no problem because under the last paragraph of Section 7, “In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.” Sec. 4

Sec. 5 *Effects when a Motion to Quash is Sustained 1. Rules:" 1. General Rule – the court may order that another complaint or

*Amendment of Complaint or Information

information be filed

1. If the motion to quash is based on:

2. Exception – an order sustaining the motion to quash is a bar to the filing of another complaint or information if the motion was based on the grounds that:

1. An alleged defect of the complaint or information which can be cured by amendment: 1. The court shall not quash the complaint or information outright,

1. The criminal liability of the accused has been extinguished, or

2. It shall order that an amendment be made 2. The ground that the facts charged do not constitute an offense: 1. The court shall not quash the complaint or information outright,

2. The accused will be placed in double jeopardy 2. Effects on the accused who is in custody: 1. If the court issued the order to file a new complaint or information:

2. It shall give the prosecution an opportunity to correct the defect

1. And a new information is timely filed – he shall not be discharged unless admitted to bail

by amendment

2. But no new information is filed within the time specified – he shall be discharged unless he is in custody for another charge

2. The court shall grant the motion to quash the complaint or information if: 1. the prosecution fails to make the amendment, or 2. the complaint or information still suffers from the same defect despite the amendment

Question:

discharged unless he is in custody for another charge Remedy of accused when motion is denied

*Amendment and Requirement of preliminary investigation Matalam v. Sandiganbayan, 455 SCRA 737

2. If the court does not order that a new information be filed – he shall be

Marcos v. Sandiganbayan, 326 SCRA 473 Question: Where a motion to quash is denied, what recourse is available to the accused?


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Justice Gabriel T. Ingles’ Notes Compilation Answer: *From a denial of a motion to quash, the appropriate remedy is for accused to go to trial on the merits, and if an adverse decision is rendered, to appeal therefrom in the manner authorized by law.

Based on Section 4, the court will, instead of quashing , allow the fiscal to amend. And your motion is already moot and academic. But suppose the court will quash the information because it was filed by somebody who was not authorized to file and the motion to quash is sustained, it does not mean to say that the case cannot be re-filed since the defects are incurable.

Sec. 6 Effects when Order to File another Complaint or Information is made by the Court 1. General Rule – this shall not be a bar to another prosecution for the same Offense 2. Exception – this shall be a bar to another prosecution for the same offense if the motion was based on the grounds that: 1. The criminal liability of the accused has been extinguished under Sec. 3[g]; and

SITUATION: The case of homicide is filed in the MTC when actually it should be filed in the RTC. Since the MTC has no jurisdiction, you file a motion to quash. And the judge shall quash it. What would the fiscal do? Tomorrow he will re-file it. So when the case is dismissed on such a ground – lack of jurisdiction or it does not conform with the prescribed form – the rule is it is not a bar to re-file the case. It can be filed again. EXCEPT when the ground for dismissal is falling under paragraphs [g] and [i] of Section 3, Rule 117. What is paragraph [g]?

2. Double jeopardy Sec. 3[i]

Dimayacyac v. CA, 430 SCRA 121

“That the criminal action or liability has been extinguished.” If the case is quashed on this ground, it is the end since the same is extinguished already. You cannot re-file it anymore.

Facts:

What is paragraph [i]?

Accused was charged with 2 counts of falsification of public documents in one information. She was arraigned. After the arraignment she moved to quash the information on the ground that it was duplicitous, which was granted. Two years later, 2 charges for falsification of public documents were filed against him based on the same incidents as those described in the quashed information.

“that the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.” So you cannot re-file the information because of double jeopardy.

Re-filing after grant of motion

Issue: Can accused invoke double j eopardy? Held: No. While a duplicitous information is a valid information that can cause conviction, double jeopardy will not lie in this instance. It should be noted that the termination of the first jeopardy was upon motion of accused who filed with the court an Urgent Motion to Quash which was granted. The reinstatement of criminal cases against the accused did not violate his right against double jeopardy since the dismissal of the information by the trial court had been effected at his own instance when the accused filed a motion to dismiss on the grounds that the facts charged do not constitute an offense and that the RTC had no jurisdiction over the case. There could then be no double jeopardy in this case since one of the requisites that the dismissal be without his express consent, is not present SITUATION: An information is filed against you and it is not in the prescribed form. What would the court do?

As a general rule, all other grounds for motion to quash even if granted will not really be a total victory for the accused. That is why some lawyers will never bother to file a motion to quash anymore. This is because once you file it, the same case would be re-filed. As a matter of fact, there are cases when it is not advisable to file a motion to quash unless there is a serious reason. It is a matter of judgment. If you think it will not benefit you client, then do not file it. Like in preliminary investigation some lawyers will not submit to criminal investigation most especially if they believe the fiscal will file because of probable cause. Better if I will not file so that you will not know who are my witnesses or statements. As a matter of fact that happened already. There was a case wherein the information stated that the accused issued five (5) checks, with different dates, all are post-dated. All five checks bounced. So, a complaint against the accused was filed before the fiscal. What the fiscal did was to file one case for estafa reciting there that the accused issued five checks of five different dates with different maturities, and all bounced. So it turned out that the information is duplicitous because every check should have been one case. You know what the lawyer for the accused did? He file a motion to quash stating that the information charges more than one case of estafa. The lawyer


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Justice Gabriel T. Ingles’ Notes Compilation was correct, so the dismissed the information. The following day, the fiscal filed 5 informations. One case for every check. In effect there are five warrants of arrest already. Then the accused asked his lawyer, “Atty, what happened? Before I have only one case. Now, there are already five!” If you are the lawyer, how will you explain that? Actually, legally you are correct. An information should charge only once crime. But since t charges five crimes so you move to quash which is a valid ground. But look at the effect – the accused now has five warrants. Can you say, it is because of a duplicitous information? He cannot understand that. That is why there is difference in just knowing the law from knowing how to apply the law. You should know the law and you should know how to use it. If it is not in you interest, do not use it. Why move to quash when by doing so would worsen your situation. Of course, there are also instances where there is a need to object by virtue of a duplicitous information.

*Temporary dismissal Condrada v. Bugtas, 398 SCRA 482 Facts: Accused was charged with rape. Due to the repeated failure of complainant to show up, on May 31, 1999, the prosecutor asked for a temporary dismissal of the case and accused agreed. The judge dismissed it subject to the condition that it should be reinstated within 30 days otherwise the dismissal becomes permanent. On June 22, 1999, the prosecution asked for the reinstatement of the case. Accused opposed on the ground that reinstatement would violate his right against double jeopardy. Issue: Did the reinstatement place accused in double jeopardy?

Held:

When do you apply it? That is for the lawyer to judge. Will you use it or not? In other words, there is a need you to have a clear picture of the situation. You must not only know the Rules of Court but also when the law must be used. An example is a to quash. How to apply it.

No. It is clear from the records that the dismissal ordered by the trial court was a temporary dismissal of the case, and not a permanent one on the ground that the right of the accused to speedy trial had been violated by the delay in the prosecution. *Provisional dismissal

However, when a case is quashed on the ground that the criminal liability has been extinguished or the accused is placed in double jeopardy, once it is quashed, that is the end. It cannot be re-filed.

People v. Lacson, 400 SCRA 267

* Sec. 8 Provisional Dismissal

Answer:

The concept of provisional dismissal contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the rules. Requisites for a case to be provisionally dismissed: 1. It must have the EXPRESS CONSENT of the accused, and 2. NOTICE must be given to the offended party 2. Effect of granting provisional dismissal – The case may be REVIVED, provided the revival is made within the following periods: 1. MTC cases – 1 year from provisional dismissal 2. RTC cases – 2 years from provisional dismissal 3. Effect of failure to revive within stated period (Time bar rule) The dismissal becomes PERMANENT

Question: Where an accused invokes the 2- year bar to oppose the revival of a case which was provisionally dismissed, what requisites must he establish?

Accused is burdened to establish the following: 1. the prosecution with the express conformity of the accused or the accused moves for a provisional ( sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case; 2. the offended party is notified of the motion for a provisional dismissal of the case; 3. the court issues an order granting the motion and dismissing the case provisionally; 4. the public prosecutor is served with aa copy of the order of provisional dismissal of the case; Such requirements are conditions sine qua non to the application of the time-bar. Sec. 8 of Rule 117 of the Rules of Court should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal.


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Justice Gabriel T. Ingles’ Notes Compilation from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence.

Meaning of express consent People v. Lacson, 400 SCRA 267 Question: What does the express consent to the provisional dismissal mean?

*Nature of the time-bar rule

Answer:

People v. Lacson, 400 SCRA 267

Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. Where the accused writes on the motion of a prosecutor for a provisional dismissal of the case No objection or With my conformity, the writing amounts to express consent of the accused to a provisional dismissal of the case. The mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.

Question:

Motion to withdraw and motion to dismiss

What is the nature of the time bar-rule under Sec. 8 of Rule 117? Answer: The time-bar under Sec. 8 of Rule 117 is akin to a special procedural limitation qualifying the right of the State to prosecute making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.

Torres, Jr. v. Torres-Aguinaldo, 461 SCRA 579 Question: How is a motion to withdraw information distinguished from a motion to dismiss? Answer: While both a motion to withdraw information and a motion to dismiss put an end to an action filed in court, their legal effect varies. The order granting the withdrawal of the information attains finality after 15 days from receipt thereof, without prejudice to the re-filing of the information upon reinvestigation. On the other hand, the order granting a motion to dismiss becomes final 15 days after receipt thereof, with prejudice to the re-filing of the same case once scuh order achieves finality, which is after the lapse of 1 or 2 years depending on the imposable penalty. Unlike a motion to dismiss, a motion to withdraw information is not time-barred and does not fall within the ambit of Sec. 8, Rule 117 of the Rules of Court. Revival of dismissed case People v. Lacson, 400 SCRA 267 Question: Where a case is provisionally dismissed, how may it be revived? Answer: The case may be revived by the State within the timebar either by the refiling or by the filing of a new information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation. However, in a case wherein after the provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged, a new preliminary investigation must be conducted before an information is refiled or a new information is filed. A new preliminary investigation is also required if aside

The time-bar under the new rule does not reduce the prescriptive periods under Art. 90 of the Revised Penal Code, a substantive law. It is but a limitation of the right of the State to revive a criminal case against the accused after the Information had been filed but subsequently provisionally dismissed with the express consent of the accused. Upon the lapse of the timeline under the new rule, the State is presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same crime or another crime necessarily included therein. The State may revive a criminal case beyond the 1-year or 2-year periods provided that there is a justifiable necessity for the delay. *Quashal v. Provisional Dismissal a. Motion to Quash A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent on the face of the Information. [19] The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information. The rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the grounds for the quashal of a complaint or information, as follows: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent.


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Justice Gabriel T. Ingles’ Notes Compilation b. Provisional Dismissal On the other hand, Section 8, Rule 117 that is at the center of the dispute states that: SEC.8. Provisional dismissal. -- A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. A case is provisionally dismissed if the following requirements concur: 1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal ( sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal; 2) the offended party is notified of the motion for a provisional dismissal of the case; 3) the court issues an order granting the motion and dismissing the case provisionally; and 4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.[20] In People v. Lacson,[21] we ruled that there are sine quanon requirementsin the application of the time-bar rule stated in the second paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the foregoing provision is a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused. *c. Their Comparison An examination of the whole Rule tells us that a dismissal based on a motion to quash and a provisional dismissal are far different from one another as concepts, in their features, and legal consequences. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which Section 8, Rule 117 applies. A first notable feature of Section 8, Rule 117 is that it does not exactly state what a provisional dismissal is. The modifier "provisional" directly suggests that the dismissals which Section 8 essentially refers to are those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case), and not the dismissals that are permanent ( i.e., those that bar the re-filing of the case). Based on the law, rules, and jurisprudence, permanent dismissals are those barred by the principle of double jeopardy, [22] by the previous extinction of criminal liability,[23] by the rule on speedy trial,[24] and the dismissals after plea without the express consent of the accused.[25] Section 8, by its own terms, cannot cover these dismissals because they are not provisional. A second feature is that Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3. The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain. A third feature, closely related to the second, focuses on the consequences of a meritorious motion to quash. This feature also answers the question of whether the quashal of an

information can be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect curable by amendment. Section 5 dwells on the effect of sustaining the motion to quash the complaint or information may be re-filed, except for the instances mentioned under Section 6. The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows - it cannot be done where the dismissal is based on extinction of criminal liability or double jeopardy. Section 7 defines double jeopardy and complements the ground provided under Section 3(i) and the exception stated in Section 6. Rather than going into specifics, Section 8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents and the offended party is given notice. The consent of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy. This immediately suggests that a dismissal under Section 8 - i.e., one with the express consent of the accused - is not intended to lead to double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution under the special terms of Section 8. This feature must be read with Section 6 which provides for the effects of sustaining a motion to quash - the dismissal is not a bar to another prosecution for the same offense - unless the basis for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read in relation wi th Sections 3(i) and 7 and compared with the consequences of Section 8, carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional dismissal under Section 8. They stress in no uncertain terms that, save only for what has been provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the terms of Section 6. The failure of the Rules to state under Section 6 that a Section 8 provisional dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely applies to dismissals other than those grounded on Section 3. Conversely, when a dismissal is pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply. Other than the above, we note also the following differences stressing that a motion to quash and its resulting dismissal is a unique class that should not be confused with other dismissals: First, a motion to quash is invariably filed by the accused to question the efficacy of the complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Section 8, Rule 117.[26] Second, the form and content of a motion to quash are as stated under Section 2 of Rule 117; these requirements do not apply to a provisional dismissal. Third, a motion to quash assails the validity of the criminal complaint or the criminal information for defects or defenses apparent on face of the information; a provisional dismissal may be grounded on reasons other than the defects found in the information. Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there may be a provisional dismissal of the case even when the trial proper of the case is already underway provided that the required consents are present.[27] Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at which time it becomes a permanent dismissal. In contrast, an information that is quashed stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence,


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Justice Gabriel T. Ingles’ Notes Compilation and becomes so only as provided by law or by the Rules. In refiling the case, what is important is the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set in. In a provisional dismissal, there can be no re-filing after the time-bar, and prescription is not an immediate consideration. To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to different situations that should not be confused with one another. If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117. All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal.

Sec. 9 Effect of Failure to File a Motion to Quash or to Allege any Ground Therefor:

Accused was charged with violation of B.P. 22 in Manila on Dec. 10, 1984. I t appears that the court had no jurisdiction but it was only after 5 years and after she was convicted that accused raised the issue of lack of jurisdiction in her memorandum filed with the RTC. Issue: Should the failure of the accused to raise the issue in a motion to quash be treated as w aiver? Held: No. Under Sec. 8, Rule 117 of the Rules of Court the failure of accused to assert any ground of a motion to quash before he pleads to the complaint or information, x x x, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of x x x lack of jurisdiction over the offense charged. Thus, the general rule that the question of jurisdiction of a court may be raised at any stage of the proceedings must apply. Accused is therefore not stopped from questioning the jurisdiction of the trial court even on appeal.

1. General Rule -- It shall be DEEMED a WAIVER on the part of the accused 2. Exception – there is NO deemed waiver when the ground is: 1. lack of jurisdiction over the subject matter (Sec. 3[a]), 2. the information does not charge any offense (Sec. 3[b]), 3. the criminal liability has already been extinguished (Sec. 3[g]), 4. double jeopardy (Sec. 3[i]) What is the effect if the person does not file any motion to quash? He is WAIVING the grounds for the motion to quash, EXCEPT: 1. 2. 3. 4.

lack of jurisdiction over the subject matter; (Section 3 [a]) the information does not charge any offense; (Section 3 [b]) the criminal liability has already been extinguished; (Section 3 [g]) double jeopardy. (Section 3 [i])

Meaning, even if you did not raise it in the beginning, you can still raise it during the trial. The rule is similar to civil procedure – defenses and objections not raised in a motion to dismiss are deemed waived, except 1.) lack of jurisdiction over the subject matter; 2.) res adjudicata; 3.) litis pendentia; 4.) statute of limitations. Lack of jurisdiction over the offense Uy v. CA, 276 SCRA 367 Facts:


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O. Motion to Quash the Complaint or Information -R117

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