When can a case be provisionally dismissed?

A case can be 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. (People vs. Lacson, G.R. No. 149453, April 1, 2003)

Who can move for the provisional dismissal of a case?

1) the prosecution with the express conformity of the accused;
2. the accused; or
3. both the prosecution and the accused.

Why is the consent of the accused required for the provisional dismissal of
his case?
The raison d etre for the requirement of the express consent of the accused to a
provisional dismissal of a criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in double jeopardy for the same
offense or for an offense necessarily included therein. (People vs. Lacson)

How is the express consent of the accused given?

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.
A motion of the accused for a provisional dismissal of a case is an express consent
to such provisional dismissal.
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.

When does the provisional dismissal become permanent?

1) not exceeding 6 years or fine - The provisional dismissal of offenses
punishable by imprisonment not exceeding 6 years or a fine of any amount shall
become permanent after 1 year without the case having been revived.
2) more than 6 years - For offenses punishable by imprisonment of more than 6
years, the provisional dismissal shall become permanent after 2 years without the
case having been revived.
After the provisional dismissal becomes final, the accused cannot be prosecuted
anymore.

When should the 1-year or 2-year period be reckoned for a provisional

dismissal to become permanent?
Although the second paragraph of the new rule states that the order of dismissal
shall become permanent one year after the issuance thereof without the case
having been revived, the provision 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. (People
vs. Lacson)

When may the case be revived?

If a criminal case is provisionally dismissed with the express consent of the accused,
the case may be revived only within the periods provided in the new rule. On the
other hand, if a criminal case is provisionally dismissed without the express consent
of the accused or over his objection, the new rule would not apply. The case may be
revived or refiled even beyond the prescribed periods subject to the right of the
accused to oppose the same on the ground of double jeopardy or that such revival
or refiling is barred by the statute of limitations. (People vs. Lacson)
How may the State revive the case?
The State may revive the case within the time-bar either by the:
1. Refiling of the Information or by
2. Filing of a new Information for the same offense or an offense necessarily
included therein.

Is there a need for a new preliminary investigation in case of revival?

No. There would be no need of a new preliminary investigation if the State revive
the case within the time-bar.

What are some of the instances when a new preliminary investigation is

needed in case of revival?
1. In case wherein after the provisional dismissal of the 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.
2. If aside from the original accused, other persons are charged under a new
criminal complaint for the same offense or necessarily included therein

3. If under a new criminal complaint, the criminal liability of the accused is

upgraded from that of an accessory to that of a principal
4. If under a new criminal complaint, the charge has been upgraded.

Distinguish Motion to Quash from Provisional Dismissal

1. 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.
2. 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.
3. 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.
4. 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.
5. 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, 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 refiling 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 anintrinsic 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. (Los Baos vs. Pedro, G.R. No. 173588,
April 22, 2009