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UNIVERSITY OF SAN CARLOS

CRIMINAL PROCEDURE
Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 202

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)
*Motion necessary except if ground is lack of jurisdiction over
the subject matter
People v. Nitafan, 302 SCRA 424
Issue:
May the judge quash an information without any
motion from the accused?
Held:
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 with the
accused.
*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
Marcos v. Sandiganbayan, 326 SCRA 473
Issue:
May an accused file a motion to quash after his
arraignment?
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 the ground of *lack of jurisdiction over
the subject matter or failure to comply with the barangay
conciliation proceedings in Sec. 18 of the 1991 Rule on
Summary Procedure (Sec. 19, Rule on Summary Procedure)
When motion to quash is denied
Joel Galzote y Soriaga v. Jonathan Briones and People of the
Philippines, G.R. No. 164682, September 14, 2011.
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 courts
decision of conviction is appealed, the accused can then raise
the denial of his motion to quash not only as an error committed
by the trial court but as an added ground to overturn the latters
ruling.
In this case, the petitioner did not proceed to trial but opted to
immediately question the denial of his motion to quash via a
special civil action for certiorari under Rule 65 of the Rules of
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 can be used only in the absence of
an appeal or any other adequate, plain and speedy remedy.
The plain and speedy remedy upon denial of an interlocutory
order is to proceed to trial as stated above. A direct resort to a
special civil action for certiorari is an exception rather than the
general rule, and is a recourse that must be firmly grounded on
compelling reasons.

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,
even if not raised in the motion, is lack of jurisdiction
over the offense
UNIVERSITY OF SAN CARLOS
CRIMINAL PROCEDURE
Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 203

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, 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. 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.
Exception to the rule
Garcia v. CA, 266 SCRA 678
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:
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.
In civil cases, within the time for but before filing the answer to
the complaint, the defendant may move to dismiss the case on
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 motion-
Take 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 of the case. Jurisdiction over the subject matter
is conferred by law.

*SEC. 3. Grounds. The accused may 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 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. (3a)
*1. Exclusiveness of grounds enumerated
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
UNIVERSITY OF SAN CARLOS
CRIMINAL PROCEDURE
Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 204

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.


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
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 respondents subsequent marriage 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.


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.
UNIVERSITY OF SAN CARLOS
CRIMINAL PROCEDURE
Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 205



InMorigo, 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.).


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 itselfthat
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
Issue:
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
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 courts 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
UNIVERSITY OF SAN CARLOS
CRIMINAL PROCEDURE
Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 206

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;
Basis of determination whether facts constitute offense
Mendoza-Ong v. People, 414 SCRA 181
Question:
What is the test to determine whether or not the
information charges an offense?
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 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.

*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 P818,510.20 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:
Did accused submit himself to the jurisdiction of the
court by posting bail?
Held:
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.
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 partys 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. the court has no jurisdiction to try the case
because of the penalty;
2. the court has no jurisdiction to try the offense
because it is committed in another place
territorial jurisdiction; or
3. 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 FILED THE
INFORMATION HAD NO AUTHORITY TO DO SO;
Who has the authority to file the case?
Prosecutor. In private crimes however, the offended party.
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CRIMINAL PROCEDURE
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Effect of lack of authority
People v. Garfin, 426 SCRA 393
Issue:
What is the effect when the officer is without authority
to file the information?
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.

*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?
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?
There is a waiver because the defect is formal not jurisdictional.

*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
convict him of as many offenses as are charged and proved,
and impose on him the penalty for each offense
*Validity of duplicitous information when there is failure to move
to quash
Dimayacyac v. CA, 430 SCRA 121
Question:
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:
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.

*7TH GROUND: (G) THAT THE CRIMINAL ACTION OR LIABILITY HAS
BEEN EXTINGUISHED
Q: How is criminal liability extinguished?
A: Under Article 89 of the RPC:
1. by death of the convict;
2. by service of sentence;
3. by amnesty;
4. by absolute pardon;
5. by prescription of the crime;
6. by prescription of the penalty

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

*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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when a valid indictment has been found..." (Hanley v. State 83
Nevada 461 cited in Black's Law Dictionary 5th ed. p. 749)
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:
1. No person shall be twice put in jeopardy of
punishment for the same offense. and
2. 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 first sentence is what you call protection against double
jeopardy of punishment for the same offense.
* 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 act-
The 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
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.
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 would never be. The discussions during the 1934-
1935 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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*Requisites to Place the Accused in Double Jeopardy
A. Attachment of jeopardy
1. The accused was charged upon a valid complaint or
information;
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
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
Question:
While the 2 informations for the same offense are still
pending against accused, may he file a motion to quash
invoking double jeopardy?
Answer:
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
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 partys 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?

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

When does the first jeopardy attach?
A: It attaches when the following requisites are present:
1. The former complaint or information is valid;
2. It was filed in a court of competent jurisdiction;
3. The accused had been arraigned under said
complaint or information; and
4. 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. if it charges an offense; (People vs. Austria, 94 Phil.
897)
2. 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:
1. The dismissal of the first information was on motion
of the accused. Therefore, it was a dismissal with
his express consent.
2. *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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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:
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:
No. The information charging accused of
possession of 42.4 grams of marijuana is valid
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.
*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)
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
Dismissal before arraignment
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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.
Issue:
Will review of the order violate the right of the accused to
double jeopardy?
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.
Conditional arraignment
People v. Espinosa, 409 SCRA 256
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:
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?
Held:
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.
*THERE IS A TERMINATION OF THE FIRST
When is there termination?
A: In the following:
1. when the accused had been previously
convicted;
2. when the accused had been previously acquitted;
and
3. 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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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
People v. Nitafan, 302 SCRA 424
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 26-
Manila 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.
Issue:
Was the quashal proper?
Held:
No. An essential requisite of double jeopardy is that the first
jeopardy must have attached. Other than the Solicitor Generals
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
People v. Magat, 332 SCRA 517
Facts:
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.
Issue:
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.
Appeal to increase penalty
People v. Dela Torre, 380 SCRA 596
Facts:
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?
Held:
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 were 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 longer 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, Palu-
ay filed a case for annulment of judgment with the CA.
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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.
Issue:
May he be convicted of the original charge and sentenced to
death without double jeopardy?
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.
*f. Appeal by employer of civil liability
Philippine Rabbit v. People, 427 SCRA 456
Facts:
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.
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
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:
Can the judge revise the decision from acquittal to conviction?
Held:
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 its 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.
*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).
*Exception
The only instance when double jeopardy will not attach is when
the trial court acted with 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)
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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not appeal, is the remedy to question a verdict of acquittal
whether the at the trial court or at the appellate court.
*b. Previous dismissal by the prosecutor
Vincoy v. CA, 432 SCRA 36
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 Prosecutors Office of Pasay which
was dismissed.
Issue:
Is the contention correct?
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.
Acquittal after trial on the merits
People v. Velasco, 340 SCRA 207
Facts:
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.
Issue:
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 courts 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
certioraris requirement of excess or lack of jurisdiction. Errors of
judgment are not to be confused with errors in the exercise of
jurisdiction.
Acquittal due to legal error
People v. Laggui, 171 SCRA 305
Facts:
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:
May the acquittal be reviewed in a petition for certiorari?
Held:
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.
e. Acquittal on appeal
People v. CA, 423 SCRA 605
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 self-
defense. 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.
Issue:
May the Supreme Court review the acquittal without violating
the rights of the accused against double jeopardy?
Held:
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 ground
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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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.
Issue:
Is the accused correct?
Held:
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 when 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

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, i-
re-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.
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.
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.
ISSUE: Is there double jeopardy?
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.
*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
Dismissal without consent
Tupaz v. Ulep, 316 SCRA 118
Facts:
Two informations were filed against the accused for non-
payment 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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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.
*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 testify.
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
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?
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 pre-
arranged 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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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.
That is a demonstration of the rule that when the order of
dismissal is null and void, you cannot plead double jeopardy.
People v. Alberto, 387 SCRA 615
Facts:
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:
Is the accused correct?
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
of the rule on double jeopardy. If at all, what the records
emphasized, as previously discussed, is the weakness of the
prosecutions evidence as a whole rather than the gross
negligence of the special prosecutor. The petitioners position is
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
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requisites of double jeopardy are present, the accused cannot
be convicted for:
1. for the same offense; or
2. 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
3. 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
4. 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.
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
Perez v. CA, 168 SCRA 236
Facts:
The lower court convicted accused of the
crime of Consented Abduction but he was acquitted
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:

... 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.
Issue:
Would conviction in one case bar prosecution
of the other on the ground of double jeopardy?
Held:
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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. It 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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NIERRA vs. DACUYCUY, 181 SCRA 1

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.
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.
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.
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)

MALLARI vs. PEOPLE, 168 SCRA 422

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.
ISSUE: Is there double jeopardy?
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.
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.
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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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.
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. the graver offense developed due
to supervening facts arising from the
same act or omission constituting the
former charge; (Section 7 [a])
2. 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
3. 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. (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?
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 INFORMATION
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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*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?
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
*Amendment of Complaint or Information
1. If the motion to quash is based on:
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,
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. It shall give the prosecution an opportunity
to correct the defect
by amendment
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
*Amendment and Requirement of preliminary investigation
Matalam v. Sandiganbayan, 455 SCRA 737
Question:
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.
Sec. 5
*Effects when a Motion to Quash is Sustained
1. Rules:"
1. General Rule the court may order that another
complaint or
information be filed
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. The criminal liability of the accused has
been extinguished, or
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:
1. And a new information is timely filed he
shall not be discharged unless admitted to
bail
2. But no new information is filed within the
time specified he shall be discharged unless
he is in custody for another charge
2. If the court does not order that a new information be
filed he shall be
discharged unless he is in custody for another charge
Remedy of accused when motion is denied
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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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.
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
2. Double jeopardy Sec. 3[i]
Re-filing after grant of motion
Dimayacyac v. CA, 430 SCRA 121
Facts:
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.
Issue:
Can accused invoke double jeopardy?
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?
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.
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]?
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.
What is paragraph [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. So you
cannot re-file the information because of double jeopardy.
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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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.
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.
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.

* Sec. 8 Provisional Dismissal
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

*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:
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
People v. Lacson, 400 SCRA 267
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?
Answer:
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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Meaning of express consent
People v. Lacson, 400 SCRA 267
Question:
What does the express consent to the provisional
dismissal mean?
Answer:
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.
Motion to withdraw and motion to dismiss
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 time-
bar 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
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.
*Nature of the time-bar rule
People v. Lacson, 400 SCRA 267
Question:
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.
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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USC Center For Legal Aid Work 2013 228

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 with 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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and becomes so only as provided by law or by the Rules. In re-
filing 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:
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. lack of jurisdiction over the subject matter; (Section
3 [a])
2. the information does not charge any offense;
(Section 3 [b])
3. the criminal liability has already been
extinguished; (Section 3 [g])
4. 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:
Accused was charged with violation of B.P. 22 in Manila
on Dec. 10, 1984. It 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 waiver?
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.