Criminal Procedure Notes based on Riano

Prosecution of Criminal Action:

Under the supervision of the PUBLIC PROSECUTOR
1. Direct supervision
2. Control
When PRIVATE PROSECUTOR intervenes
Allowed ONLY where the civil action is INSTITUTED in the criminal action
Remember that civil actions are deemed instituted
If the offended party
1. Waives
2. Reserves
3. Institutes civil action prior to the criminal action
The PRIVATE PROSECUTOR CANNOT INTERVENE!
Exception on the involvement of the private prosecutor:
If he is authorized to do so in writing
He may prosecute up to the end of the trial
Provided, the authorization shall be given by either the Chief of the Prosecution Office or the Regional State
Prosecutor
AND, must be approved by the court
HOWEVER, it may be revoked or withdrawn by the public prosecutor any time
Since prosecution is under the control and supervision of the PUBLIC PROSECUTOR, it follows that the SC
CANNOT compel the former to file and information, or prosecute a person if he believes that there is no
probable cause in doing the same!
Exception: grave abuse of discretion on the public prosecutor
Hierarchy:
DOJ ------ SEC of Justice ------- PROSECUTORS
Criminal action in MTC or MCTC – prosecuted under the public prosecutor
If public prosecutor is absent or not available, may be prosecuted by:
1. Offended party
2. Any peace officer
3. Public officer charged with the enforcement of the law violated
III PROSECUTION OF PRIVATE CRIMES
What are these crimes?
1. Adultery
2. Concubinage
NOTE: these crimes shall not be prosecuted except upon a complaint filed by the offended spouse
RULE: PROSECUTOR CANNOT PROSECUTE THE CASE WHERE NO COMPLAINT IS FILED BY THE
OFFENDED SPOUSE
 Cannot be instituted against one party alone! AGAINST BOTH GUILTY PARTIES!
Cases where it cannot be prosecuted
If the offended party has consented to the offense or has pardoned the offenders (express/implied)
1. Seduction
2. Abduction
3. Acts of lasciviousness
SAME RULE: cannot be prosecuted except upon a complaint filed by the:
1. Offended party – even if minor, still has the right to initiate
2. Parents
3. Grandparents or legal guardian
4. State
6. Defamation
-- should be the imputation of the offenses of adultery, concubinage, seduction, abduction, and acts of
lasciviousness
SIMILAR RULE: filed by the offended party
V COMPLAINT OR INFORMATION
Complaint, defined.
Sworn written statement
Charging a person with an offense
Subscribed by the offended party, any peace officer, or other public officer
Name: People of the Philippines
Private offended parties – only as witnesses
Thus they may not appeal the dismissal of a criminal case or the acquittal ONLY the civil aspect
In so doing, the private offended party who appeals must prosecute in his own personal capacity
So how then can a dismissal or acquittal of the criminal case be appealed?
CAN ONLY BE APPEALED BY THE OSG
Reason: private offended party has no legal personality to do so
Chapter12, Title III, Book IV of the Admin. Code
Only the OSG can bring and/or defend actions on behalf of the Republic or represent the people or
the State in criminal proceedings pending in the Supreme Court and the CA
Information, defined.
Accusation in writing
Not required to be sworn; because the prosecutor is under the oath of his office
Charging a person with an offense
Subscribed by the prosecutor
And filed with the court
Name: People of the Phils
What happens if there is infirmity of the signature in the information?
The information confers jurisdiction on the court, thus if there is infirmity – invalid
 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
The complaint or information should include the ff (sufficiency test):
1. Name – all of the accused
2. Designation of the offense given by the statute
3. Acts/omissions complained of - should be described with such particularity as to appraise the accused,
with reasonable certainty, of the offense charged
1. Offense being charged
2. Acts or omissions complained of
3. Qualifying and aggravating circumstances
4. Name of the offended party
5. Approximate date of the commission – unless material element/ingredient of the crime
6. Place where the offense was committed
Purpose: TO ENABLE THE ACCUSED TO SUITABLE PREPARE FOR HIS DEFENSE, SINCE HE IS
PRESUMED TO HAVE NO INDEPENDENT KNOWLEDGE OF THE FACTS THAT CONSTITUTE THE
OFFENSE!
Note: sufficiency of information is not negated by an incomplete or defective designation of the crime. Failure
to specify the correct crime committed will not bar conviction of the accused.
Question: When is the right time to question the sufficiency or validity of the information or complaint?
Answer: before arraignment or during trial, otherwise, deemed waived.
Actions: 1) bill of particulars; 2) quashal of the information
Question: What should be given preference, the designation of the crime in the information or the allegation of
the facts?
Answer: The allegation of facts is controlling because the nature and character of the crime charged are
determined not by the designation of the specific crime, but by the facts alleged in the information. So even if
the information is defective, the allegation of facts must be preferred over the defective information. Allegation
in the information, not the technical name given by the prosecutor.
Question: What happens if there is a mistake on the name of the accused?
Answer: A mistake in the name of the accused is not equivalent, and does not necessarily amount to, a mistake
in the identity of the accused especially when sufficient evidence is adduced to show that the accused is pointed
to as one of the perpetrators of the crime. However, the identity must be proven.
In offenses against property – it is enough that the property is described with such particularity as to properly
identify the offense charged.
Statement of the qualifying and aggravating circumstances:
Needed since without it, the accused cannot be convicted of qualifying or aggravating circumstance even if
proven in court
Even if an aggravating circumstance had been proven, but was not alleged, courts will not award exemplary
damages!
Reason: tantamount to denial of due process since the accused is deprived to be informed of the charges
against him!
How about mitigating? – no need. The accused may be convicted with mitigating circumstances, since the
nature of it is in favor of the accused
VI. VENUE OF CRIMINAL ACTIONS
Criminal action shall be instituted and tried in the court of the municipality or territory:
1. Where the offense was committed
2. Where any of its essential ingredients occurred
VII. AMENDMENT OR SUBSTITUTION OF THE COMPLAINT OR INFORMATION
Before plea or arraignment – leave of court not required
Without leave of court
Any formal or substantial amendment may be made
After plea or arraignment
Amendment is prohibited
Except if beneficial to the accused
Before plea or arraignment – leave of court required where:
The amendment downgrades the nature of the offense charged;
The amendment excludes any accused
Formal Amendment, defined.
New allegations which relate only to the range of the penalty
Which does not charge another offense different or distinct from that charged in the original one
Additional allegations which do not alter the prosecution’s theory
Does not adversely affect any substantial right
An amendment that merely adds specifications to eliminate vagueness in the information
Not to introduce new and material facts
Merely states with additional precision something which is already contained in the original information
Adds nothing essential for conviction
Facts of a case: prosecutor entered his amendment by crossing out the word Homicide and instead wrote the
word Murder
Issue: Is it a formal or substantial amendment?
Ruling: Only a formal amendment. The only change made was in the caption of the case; and in the opening
paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the
Murder. There was no change in the recital of facts constituting the offense charged or in the determination of
the jurisdiction of the court. The averments in the amended Information for murder are exactly the same as
those already alleged in the original information for homicide, as there was not at all any change in the act
imputed to the accused. In allowing formal amendments in which the accused has already pleaded, it is
necessary that the amendments do not prejudice the rights of the accused.
Test whether the rights of the accused are prejudiced by the amendment of a complaint or information is:
1. whether a defense under the complaint or information, as it originally stood, would no longer be
available after the amendment is made; and
2. When any evidence the accused might have would be inapplicable to the complaint or information.
Since the facts alleged in the accusatory portion of the amended information are
1. identical with those of the original information for homicide,
2. there could not be any effect on the prosecution’s theory of the case;
 3. neither would there be any possible prejudice to the rights or defense of petitioner.
SUBSTITUTION OF COMPLAINT OR INFORMATION
if it appears at any time before judgment that a mistake has been made in charging the proper offense
if it becomes manifest that the accused cannot be convicted of the offense charges or of any other offense
necessarily included therein, the court shall commit the accused to answer for the proper offense by
requiring the filing of the proper information.
Accused shall not be discharged if there appears good cause to detain him. After the proper information is
filed, it shall dismiss the original case
in such a case, the court shall dismiss the original complaint or information once the new one charging the
proper offense is filed
provided, accused will not be placed in double jeopardy
may be made before or after arraignment
Substitution, distinguished/defined
substantial change
with leave of court as the original information has to be dismissed
requires another preliminary investigation and the accused has to plead anew to the new information filed
new information involves a different offense which does not include or is not necessarily included in the
original charge, hence, accused cannot claim double jeopardy!
Amended information entails:
formal or substantial amendment
before plea can be without leave of court, etc
only to form – no need for preliminary investigation
amendment of the same offense charged – hence, substantial amendments to the information after the plea
has been taken cannot be made over the objection of the accused, for if the original information would
be withdrawn, the accused could invoke double jeopardy!
CHAPTER III – PROSECUTION OF CIVIL ACTION
when criminal action is instituted, the civil action is deemed included
every person criminally liable for felony is also civilly liable
the rule on implied institution of the civil action does not apply before the filing of the criminal action or
information --- when there is no criminal case yet against the respondents as when the Ombudsman is
still in the process of finding probable cause to prosecute the respondent
Civil liability arising from the crime – the governing law is rules of Criminal Procedure not rules of civil
procedure!
Exception: civil action other than the one arising from the crime is not suspended by the commencement of the
criminal action because they may proceed independently of the criminal proceedings.
Reservation of the civil action should be made before the prosecution starts presenting its evidence!
Note: after the criminal action is commenced, the separate civil action arising therefrom cannot be instituted
until final judgment has been entered in the criminal action!
Preference is given to the resolution of the criminal action
If the civil action was commenced before the institution of the criminal action, the civil action shall be
suspended in whatever stage it may be found before judgment on the merits, once the criminal action is
filed. The suspension shall last until final judgment is rendered in the criminal action
 Exception: does not apply to independent civil action since they are distinct and separate from the civil
action arising from the offense committed
Another exception: prejudicial question
RULE on counterclaims, etc:
NO COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY CLAIM IN A CRIMINAL CASE may be filed by
the accused in the criminal case but any cause of action which could have been the subject may be litigated in a
separate civil action.
Note that a criminal case is not the proper proceedings to determine the private complainant’s civil liability.
A court trying a criminal case is limited to determining the guilt of the accused, and if proper, to determine his
civil liability those arising only from offense.
CAUSE OF DEATH of the accused:
If the accused dies after arraignment and during the pendency of the criminal action
– the civil liability arising from the crime – extinguished (but this does not preclude the offended party from
filing a separate civil action based on other sources of obligation may be continued)
Dies before arraignment – case dismissed but the offended party may file the proper civil action
Death prior to final judgment – terminates criminal liability and only civil liability directly arising from and
based solely on the offense committed (again, does not bar for filing a separate civil action on other
sources of obligation)
Death during pendency of his appeal with SC – totally extinguished the criminal and civil action based
solely on the crime. Reason: no final judgment of conviction was yet rendered by the time of his death.
Novation of contract: extinguishment of criminal liability
Criminal liability is not affected by a compromise or novation of contract
It may affect the civil liability but not the criminal aspect since it is a public offense which must be prosecuted
and punished by the government.
EFFECT OF ACQUITTAL OR EXTINCTION OF THE PENAL ACTION ON THE CIVIL ACTION OR
CIVIL LIABILITY
Degree of evidence: mere preponderance of evidence
Note: extinction of the penal action does not carry with it the extinction of the civil action where:
1. Acquittal is based on reasonable doubt
2. Court declares that the liability is only civil
3. Civil liability does not arise from or is not based upon the crime of which he was acquitted
However, extinction of the civil action based on delict – deemed extinguished
Provided, there is a fining in a final judgment in the criminal action that the act or omission from which the
civil liability may arise did not exist!
Note: when the trial court acquits or dismisses the case on the ground of lack of evidence to prove guilt beyond
reasonable doubt, the civil action is not automatically extinguished since liability on civil action can be
determined based on mere preponderance of evidence!
Hence, there is a requirement to state whether the prosecution absolutely failed to prove his guilt or merely
failed to prove beyond reasonable doubt – in either case it shall determine if the act or omission from which the
civil liability might arise did not exist
Example: may be acquitted but if his negligence is proved by mere preponderance of evidence, he may still be
civilly liable
Elementary rule: payment of civil liability does not extinguish criminal liability
PREJUDICIAL QUESTION, defined
Previously instituted civil action
issued involved in a civil case
which is similar or intimately related to the issue raised in the criminal case
resolution of which
determines whether or not the criminal action may proceed
civil action instituted previously or ahead of the criminal action; must precede the criminal action
civil action requires a decision before a final judgment can be rendered in the criminal action
proceedings in the second case may be suspended to await the resolution of the prejudicial question in the
first case
existence of two actions –civil action and criminal action
the issue in the civil case needs to be resolved first before it is determined whether or not the criminal case
should proceed or whether or not there should be, in the criminal case, a judgment of acquittal or
conviction
the issue raised in the civil action is determinative of the guilt of the accused in the criminal aspect
the issue in the civil case is determinative of the issue in the criminal case; the resolution of such issue
determines whether or not the criminal action may proceed
it follows that if the resolution of the issue in the civil action will not determine the criminal responsibility
of the accused in the criminal action based on the same facts, the civil case does not involve a prejudicial
question. Neither is there a prejudicial question if the civil and the criminal action can proceed
independently of each other, that is, the criminal action can proceed without waiting for the resolution of
the issues in the civil case
Reason: to avoid two conflicting decisions
REQUISITES:
1. civil case involves facts intimately related to those upon which the criminal prosecution would be based;
2. in the resolution of the issues raised in the civil case, the guilt or innocence of the accused would
necessarily be determined
3. jurisdiction to try said questions must be lodged in another tribunal
Not a prejudicial question if:
1. both cases are criminal
2. both civil
3. both cases are administrative
4. one case is administrative and other civil
5. one case is administrative and other criminal
6. criminal case was instituted prior to the civil case!
Effect of the prejudicial question:
1. suspension for the criminal action may be filed
2. the criminal case may be suspended pending the final determination of the issues in the civil case – this
is the exception on the general rule that if the civil action was commenced before the institution of the
criminal action, the civil action shall be suspended in whatever stage it may be found before judgment
 on the merits, once the criminal action is commenced – the suspension shall last until final judgment is
rendered in the criminal action
3. accords a civil case a preferential treatment and constitutes an exception to the general rule that the civil
action shall be suspended when the criminal action is instituted
4. however, suspension does not include dismissal therefore, double jeopardy cannot be invoke
Where and when to file the petition for suspension
1. does not need to wait for the criminal case to be filed in court, it is sufficient that there be previously
instituted civil case – it may be filed in the stage of preliminary investigation
2. the petition for suspension should be filed in the criminal case not in the civil case since what is
3. suspended is the criminal case right?? Lol
4. where? – in the office of the prosecutor conducting the preliminary investigation
5. any time before the prosecution rests

Case illustrations:
Preliminary Investigation Preliminary Examination
by the prosecutor by the judge
purpose: whether the accused should be held purpose: to determine probable cause for the
for trial or if he should be released issuance of a warrant of arrest
Nature: executive, since it is part of the
Nature: judicial
prosecutor’s job

Irregularity of arrest (not in

accordance with Rule 113, Proper arrest
Sec5(a)&(b)
Inquest proceeding shall not
Inquest shall proceed
proceed
Release of the detainee Detainee may ask for bail (?)
Prosecutor should ask the detainee if he wants to avail
*if the evidence warrants
preliminary investigation (remember: purpose of
preliminary investigation, the
preliminary investigation is to determine the probability
prosecutor may serve notice to the
of guilt of the accused, and whether he should be held for
detainee
trial
Cas
Facts Ruling
e
marijuana is inadmissible since it was not
incident to a lawful arrest. The accused
was not, at the moment of his arrest,
(Pe More than two days before the arrest, the committing a crime nor was it shown that
ople officers received a tip that the accused was he was about to do so or that he had just
v. on board an identified vessel and carrying done so. He was just descending the ship;
Ami marijuana; acting on the information they no outward indication that called for his
nnu waited for the accused and approached him arrest. To all appearances, he was like any
din) as he descended the ship and arrested him. other passengers innocently disembarking
from the vessel. The officers could have
obtained a warrant since they had
reasonable time to apply
(Pe
The accused were arrested while inside a
ople Invalid arrest made merely on the basis of
pedicab despite the absence of any
v. reliable information that the persons
outward indications of a crime being
Mol arrested were carrying marijuana
committed.
ina)
A warrantless arrest cannot be justified
(Ma
where no crime is being committed at the
laca
time of the arrest because no crime may
t v.
be inferred from the fact that the eyes of
CA)
the person arrested were moving fast and
.
looking at every person passing by
Peo There was a telephone call from an alleged The requirements of a warrantless arrest
ple informer that suspicious looking men were were not complied with. There was no
v. at a street corner. The operatives offense which could have been suggested
Me dispatched to the place, they saw three by the acts of Mengote of looking from
ngot men who was looking from side to side side to side while holding his abdomen.
 clutching his abdomen. The operatives
approached the men and introduce
themselves as policemen. Two of them
e. tried to run away but the attempt was
foiled. The search yielded a revolver in the
possession of Mengote and a fan knife in
the pocket of another.
Two men who were arrested told the
officers that they knew of a scheduled
delivery of shabu by their employer WW.
The police operatives proceeded to the
place and found WW who came out of the
Peo apartment towards a parked car, the
ple officers approached him, introduced
v themselves and upon hearing that he was
Lag WW, immediately he frisked him and
uio. asked him to open the back compartment
of the car. When frisked, an unlicensed
pistol with live ammunitions was found
inside his pocket. The operatives searched
the car and found shabu, unlicensed pistol,
etc
Case Facts
The accused was carrying a woven buri-
like plastic bag which appeared to contain
camote tops, boarded a bus. Overt act:
instead of placing the bag by her side,
which is the usual practice of a traveler,
Peop she placed the same on the back seat
le v. where a trained anti-narcotics agent was
Anit seated. Since the act of the accused was
a unusual, the suspicion of the agent was
Clau aroused. Feeling that something was
dio unusual, the agent inserted his finger
inside the bag where he felt another
plastic bag in the bottom from which
emanated the smell of marijuana. Right
after she got off the bus, the agent arrested
the accused.
Peop Two police officers together with a
le v. barangay tanod were conducting
Tang surveillance operations in a bus station to
These are obviously not sinister acts. He
was not skulking in the shadows but
walking in the clear light of day. By no
stretch of the imagination could it have
been inferred from these acts that an
offense had just been committed, or was at
least being attempted in their presence.
the facts and circumstances did not
manifest any suspicious behavior on the
part of WW that would reasonably invite
the attention of the police. He was merely
walking from the apartment and was about
to enter a parked car when the police
operatives arrested him, frisked and
searched his person and commanded him
to open the compartment of the car. He
was not committing any visible offense
then. Therefore, there can be no valid
warrantless arrest in flagrante delicto. It is
settled that reliable information alone,
absent any overt act indicative of a
felonious enterprise in the presence and
within the view of the arresting officers, is
not sufficient to constitute probable cause
that would justify an in flagrante delicto
arrest.
Ruling
there was a valid warrantless arrest and a
valid warrantless search, since the officers
were faced by an “on-the-spot”
 check on persons who may be engaging in
the traffic of dangerous drugs based on
information supplied by informers. They
noticed a person carrying a red travelling
liben information which required them to act
bag who was acting suspiciously. When
. swiftly.
asked to open the bag, the accused did so
only after the officers identified
themselves. Found in the bag were
marijuana leaves.
Again, the Court distinguish Maspil from
Aminnudin. In Aminnudin, the officers
Because of confidential reports from
were aware of the identity of the accused,
informers that two persons would be
his planned criminal enterprise and the
transporting a large quantity of marijuana,
vessel he would be taking, and the officers
officers set up a checkpoint to monitor,
had sufficient time to obtain a search
Peop inspect, and scrutinize vehicles. A couple
warrant. In Maspil, the officers had no
le v of hours after midnight, a jeepney was
exact description of the vehicle of the
Mas flagged down in the checkpoint. On board
accused, and no idea of the definite time
pil were the persons identified by the
of its arrival. A jeepney on the road is not
informers who were also with the
the same as a passenger boat the route and
policemen manning the checkpoint. When
time of arrival of which are more or less
the sacks and tin cans were opened, they
certain and which ordinarily cannot
contained marijuana leaves
deviate or alter its course or select another
destination.

Case Facts Judgment

Abel
ita
III v. A team was dispatched to investigate. The
Dori investigation disclosed that a victim was The petitioner’s act of trying to get away,
a wounded and that the witness tagged the
coupled with the incident report which
petitioner as the one involved and that he
WH had just left the scene of the crime. After they investigated, is enough to raise a
AT: tracking down the petitioner, he was reasonable suspicion on the part of the
shoo invited to the police headquarters but the police authorities.
ting petitioner sped off.
inci
dent
Two robbers divested the passengers of a
jeepney of their belongings including the
jacket of one passenger. The passengers
Peo
immediately sought the help of police The warrantless arrest of the accused was
ple v
officers which formed a team to track sustained by the Court as well within the
Acol
down the suspects. One of the passengers, hot pursuit exception.
.
who went with the police officers, saw one
of the robbers casually walking in the
same vicinity and wearing his jacket.
The police station received a report of a based on their knowledge of the
mauling incident, right away the officers circumstances of the death of the
went to the crime scene and found a piece victim and the report of an
Peo
of wood with blood stains, a hollow block eyewitness, in arresting the
ple v
and two pouches of marijuana. A witness accused, the officers had personal
Gere
told the police that the accused was one of knowledge of facts leading them to
nte.
those who killed the victim. They believe that it was the accused who
proceeded to the house of the accused and was one of the perpetrators of the
arrested him. crime.
 1. Private respondent filed an action for frustrated parricide, then several months after, she filed another
action for the declaration of the nullity of their marriage. The petitioner filed an urgent motion to
suspend the proceedings. Ruling: no prejudicial question since the criminal action was first filed before
the civil case. For a prejudicial question to exist, the civil action must be instituted first before the filing
of the criminal action. Moreover, the issue in the annulment of marriage is not similar or intimately
related to the issue in the criminal case for parricide.
2. Respondent contracted his first marriage. Without said marriage having been annulled, nullified, or
terminated, the same respondent contracted a second marriage with the petitioner. Based on petitioner’s
complaint-affidavit, information for bigamy was filed against respondent. Sometime thereafter,
respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage.
Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy. Issue:
whether the subsequent filing of a civil action for declaration of nullity of a previous marriage
constitutes a prejudicial question to a criminal case for bigamy. Ruling: the civil action for declaration of
the nullity of the marriage was not determinative of the issue in the bigamy case, the Court placed
emphasis on Art40 of the Family Code which requires a prior judicial declaration of nullity of a previous
marriage before a party may remarry. Without it, the first marriage is presumed to be subsisting. Thus,
any decision in the civil action for nullity would not erase the fact that respondent entered into a second
marriage during the subsistence of a first marriage. Therefore, a decision in the civil case was not
essential to the determination of the criminal charge – not a prejudicial question.
CHAPTER IV – PRELIMINARY INVESTIGATION
“Is the respondent probably guilty and therefore, should go to trial?”
Nature: INQUIRY PROCEEDING / Judicial Proceeding
Purpose: TO DETERMINE whether there is SUFFICIENT GROUND to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof, and should be held for trial
Function: executive not a judicial function
The only means of discovering the persons who may be reasonably charged with a crime
To enable the fiscal to prepare his complaint or information
Lasts for 10 days
Not a trial nor a part of it
Does not involve the examination of witnesses
The purpose is not to declare the respondent guilty beyond reasonable doubt
Does not require confrontation between the parties
Conducted through submission of affidavits and supporting documents, and through exchange of pleadings
To determine:
1. Whether a crime has been committed
2. Whether the respondent is probably guilty thereof
Prosecutor’s duties:
1. To determine the existence of probable case
2. To file information
What is probable cause in preliminary investigation?
Implies probability of guilt
Requires more than bare suspicion
The prosecutor does not:
determine the guilt or innocence
exercise adjudication nor rule-making functions
Ultimate purpose:
to secure the innocent against hasty, malicious and oppressive prosecution
to protect him from an open and public accusation of a crime
to protect the State from useless and expensive prosecution
designed to free a respondent from the inconvenience, expense, stress of defending himself/herself in the
course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a
more or less summary proceeding
Is the prosecutor a quasi-judicial officer?
No. A preliminary investigation is not a trial of the case on the merits, and has no purpose except that of
determining whether a crime has been committed and whether there is probable cause to believe that the
accused is guilty thereof. While the fiscal makes that determination, he cannot be said to be acting as a quasi-
court, for it is the courts, ultimately, that pass judgment on the accused, not the fiscal.
Is the substantial right of the accused to a preliminary investigation waivable?
Yes. It is deemed waived for failure to invoke the right prior to or at the time of the plea/arraignment.
PROBABLE CAUSE , defined.
existence of facts and circumstances
as would lead a person of ordinary caution to entertain an honest and strong suspicion
that the accused is guilty of the crime subject of the investigation
based only on opinion and reasonable belief
implies probability of guilt
Requires:
requires more than bare suspicion
but less evidence
elements of the crime charged should be present since every crime is defined by its elements, without which
there should be no criminal
It does not
does not import absolute certainty
need not be based on clear and convincing evidence of guilt
does not pronounce guilt (only the probability of guilt which would lead the accused to stand trial)
require a full and exhaustive presentation of the parties’ evidence
Discretion:
The determination lies within the discretion of the prosecuting officers after conducting a preliminary
investigation.
Merely binds over the suspects to stand trial
Kinds of determination of probable cause
1. Judicial – made by judge
2. Executive – made by the prosecutor during preliminary investigation
When required?
Preliminary investigation is required in a criminal offense has a penalty of at least 4yrs, 2months, and 1 day.
Procedures for cases not requiring preliminary investigation:
1. Directly submit with the prosecutor; or
2. By filing an information or complaint with the MTC – conducted by the judge
Application for bail:
while a preliminary investigation is undertaken, the person arrested is still under detention
to effect release, he may apply for bail since he is not yet charged in court
After plea has been entered/after arraignment:
-deemed to have waived the absence of preliminary investigation
Remand to the prosecutor:
if the accused wants a preliminary investigation, the court will not dismiss, BUT remand the case to the
prosecutor so that investigation may be conducted
the Sandiganbayan will hold in abeyance any further proceedings
Lack/Irregularity of Preliminary investigation will not affect:
1. court’s jurisdiction
2. validity of the information or render it ineffective
What is the effect of denial of a motion for reinvestigation?
cannot invalidate the information
INQUEST PROCEEDINGS (summary investigation):
for persons detained
a person is lawfully arrested without a warrant
involving an offense which requires preliminary investigation
not a preliminary investigation; distinct
does not follow the procedure on preliminary investigation
CONDUCTED WHEN: (by the inquest officer/prosecutor)
a person has been lawfully arrested and detained
without warrant
WHERE:
police stations/headquarters of the PNP, unless otherwise directed (which is why it is an informal and
summary proceeding)
Deemed COMMENCED:
from the time the Inquest Officer receives the complaint and referral documents
detained persons should be present during inquest proceedings
Purpose: to determine whether or not the person detained should remain under custody and then charged in
court – ahh ok!!! Grrrr!!
- PN NOT REQUIRED even if offense requires preliminary investigation
Substitute – INQUEST PROCEEDING?
1. a person is arrested lawfully without a warrant
note: he may ask for a preliminary investigation*
note: inquest proceedings apply
1. in flagrante delicto
Reason: preliminary investigation is not required since the person is lawfully arrested
Riano: if he has been arrested in a place where an inquest prosecutor is available, an inquest will be conducted
instead of a preliminary investigation.
Question: What is the use of inquest proceeding?
Question: Is an inquest a substitute of preliminary investigation?
Question: Is it needed in lieu of preliminary investigation?
Answer: an inquest proceeding shall normally apply when a person is lawfully arrested without a warrant
*When may the person lawfully arrested without warrant ask for a preliminary investigation?
- before the complaint/information is filed but he must sign a waiver under Article 125 of the RPC (imposes a
penalty on the officer)
- after filing, within 5 days from the time he learns of its filing
Duty of the Inquest Prosecutor:
1. to determine if the detained person has been arrested lawfully in accordance with Rule 113, Sec 5 (a)
and (b)
1. he may examine the arresting officers on the arrest
2. should it be found that it was not in accordance with Rule113, inquest prosecutor shall not proceed with
the inquest proceedings. And recommend the release of the detainee
** see the table at the back/below
Inquest must pertain to the offense for which the arrest was made
Case: Beltran v. People
Facts: Beltran was arrested without a warrant for inciting to sedition based on a speech he gave. Second inquest
was based on rebellion.
Ruling: Inquest proceedings are proper only when the accused has been lawfully arrested without a warrant. The
officers arrested Beltran for inciting to sedition and not for rebellion, therefore the prosecutor could only have
conducted an inquest for inciting to sedition and no other! Second inquest – invalid
STEPS ON PRELIMINARY INVESTIGATION:
*initial step: filing of the complaint with the prosecutor
(an affidavit of complaint)
Contains:
1. address of the respondent
2. affidavits of his witnesses
3. other supporting documents
the number of copies to be filed shall – also the number of respondents included plus 2 copies for official
file
example: 2 respondents – 2 copies + 2 official files = total4
Dismissal of the complaint: (made by the complainant)
from filing, prosecutor has 10 days to decide:
 1. dismiss
2. issue subpoena to the respondent
Rights of the Respondent:
right to examine the evidence submitted
right to copy the evidence at his expense
objects shall be made available for examination, copying, or photographing at the expense of the requesting
party (may be respondent or complainant)
Filing of counter-affidavit by respondent:
within 10days from receipt of subpoena, he is required to submit his counter-affidavit with other documents
*reply-affidavit from complainant; rejoinder-affidavit from respondent
Effect of no counter-affidavit: ex parte investigation
prosecutor shall resolve the complaint based on the evidence presented by the complainant
Respondent may be allowed to reopen the case to submit his counter-affidavit; should be done before the
prosecutor has issued a resolution; it should contain an explanation for the failure to timely file the counter-
affidavit
Clarificatory Hearing:
set by the prosecutor
to clarify facts and issues
no right to cross-examine
if the parties have questions to ask, it should be addressed to the prosecutor, and the latter shall be the one to
ask the questions to the party concerned
lasts only for 5 days
dispensable
within the discretion of the prosecutor
Resolution; final stage of preliminary investigation
If the prosecutor finds probable cause to hold the accused for trial, he shall prepare:
1. resolution
2. *information (to be filed in court)
3. or dismissal
*the information shall contain a certification, in which he certifies:
1. he personally examined the complainant and witnesses
2. there is reasonable ground that a crime has been committed
3. accused is probably guilty
4. accused was informed of the complaint and evidence
5. he was given an opportunity to submit evidence
Effect of the absence of certification:
the information is still considered valid
After resolution – prosecutor shall forward the case to the provincial or city prosecutor or chief state prosecutor
or Ombudsman
Reason: there should be prior written authority or approval of the provincial, city prosecutor, or chief state
prosecutor or Ombudsman before an information or complaint may be filed or dismissed by the prosecutor
*Resolution of the investigating prosecutor is not conclusive since it may be reversed or affirmed by the
prosecutors earlier cited
Reiteration of the rule: no complaint or information may be filed or dismissed by an investigating prosecutor
without the prior written authority or approval of the provincial or city prosecutor, or chief state prosecutor, or
the Ombudsman
When recommendation for dismissal is disapproved:
the Ombudsman may file the information or he may direct another assistant prosecutor
Motion for Reconsideration
aggrieved party may file within 15 days from receipt of the resolution
Appeal
within 15 days from the denial of the MR
appeal to the Secretary of Justice
verified comment may be filed by the adverse party, 15 days from receipt of appeal
if there is no verified comment, Secretary of Justice may resolve on the basis of the petition
if there is probable cause, information may be filed in court
proceedings in court should be held in abeyance
aggrieved party may file a motion for suspension of arraignment; Rule 116, 11(c) arraignment shall be
suspended if a petition for review of the resolution of the prosecutor is pending
Secretary may dismiss outright
IF an information has been filed and accused has already been arraigned before the filing of the appeal, the
appeal shall not be given due course
IF, accused has been arraigned after the filing of the petition, any arraignment shall not bar the Secretary of
Justice to review
Secretary of Justice has the power to affirm, modify, nullify, or reverse the resolution made by his
subordinates; has the ultimate power to decide which conflicting theories of the parties should be
believed; his finding are not subject to review, except if tainted with grave abuse of discretion (remedy
of aggrieved party: petition for certiorari); his decision is final
Courts are not empowered to substitute their own judgment, only that of the investigating prosecutor and
ultimately that of the Secretary of Justice
General rule: Principle of non-interference – leaves the investigating prosecutor sufficient latitude of
discretion
Exception: when there is grave abuse of discretion
Appeal to the Secretary of Justice
May be availed of despite the filing of information in court
Appeal to the Office of the President; administrative appeal
Appeal to the Court of Appeals; judicial appeal
Appeal to the Supreme Court
Duties of the Judge; upon filing of the complaint/information
1. Personally evaluate the resolution; look into its evidence
 2. Judge may find that evidence:
1. Fails to establish probable cause
(Judge may dismiss)
1. Establishes probable cause
(Judge shall issue warrant of arrest)
(If lawfully arrested – issue a commitment order)
1. Engenders a doubt as to the existence of probable cause
(Order to submit additional evidence)
When warrant of arrest is not necessary:
1. Accused is under detention pursuant to a lawful warrantless arrest, and a complaint or information has
already been filed
2. Offense is punishable by fine
3. Case is subject to the Rules on Summary Procedure (inquest?)
BAR Question: Whether the TRIAL COURT may refuse to grant the motion filed by the Provincial Fiscal (upon
instructions of the Sec of Justice) and insist on the arraignment and trial on the merits.
Answer: YES, the court may deny the motion and require that the trial on the merits proceed for the proper
determination of the case. Once a criminal complaint or information is filed in court, any disposition of the case
or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction of the trial court.
The fiscal or even the Secretary of Justice cannot impose his opinion on the trial court since it is the best and
sole judge on what to do with the case before it. The judge of the trial court is not bound to rely solely on the
resolution of the fiscal; he must make a personal evaluation of the case, and satisfy himself that there is indeed a
probable cause to issue a warrant of arrest or a commitment order. Further, judge is required to positively state
that the evidence presented was insufficient for a prima facie case. It must include the discussion of the merits
and state the reasons for granting the motion to withdraw.
Chapter V. ARREST, SEARCH, AND SEIZURE
How made
The taking of the person into custody
In order that he may be bound to answer for the offense
Need not be actually restrained
Sufficient: submission to the custody of the person
Control over the person
Restraint on his liberty
He is not free to leave on his own volition
Who will arrest?
Law enforcement officers are entrusted with the power to:
Conduct investigations
Make arrests
Perform searches and seizures of persons and their belongings
Must be exercised within the boundaries of the law
PROBABLE CAUSE on ARREST
1. Personal knowledge by the arresting officer
 2. of facts and circumstances
3. that the arrestee is indeed the perpetrator of the criminal act
QUESTION: What if the act of the officer does not amount to an arrest; will the requirements on probable cause
and personal knowledge stay?
ANSWER: No. It will not be pre-requisites to the legality of the said arrest.
REQUISITES FOR ISSUANCE OF A WARRANT OF ARREST; judge’s duties
(While on preliminary investigation, it was more on the prosecutor’s duty)
1. it shall be issued upon finding of probable cause
otherwise, unreasonable, violates the constitutional right to privacy of persons subject to such
warrant
1. personally determined by the judge
case: AAA vs. Carbonell: judge is not required to personally examine the complainant and her
witnesses in satisfying himself of the existence of probable cause; judge should have taken into
consideration the documentary evidence as well as the transcript of stenographic notes
Ruling: The judge committed grave abuse of discretion for dismissing the criminal case on the ground that
petitioner and her witnesses failed to comply with his orders to take the witness stand.
Case: Soliven v. Makasiar – this provision does not mandatorily require the judge to personally examine the
complainant and her witnesses. He may opt to:
1. personally evaluate the report and supporting documents submitted by the prosecutor; or
2. disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses
but such personal examination is not mandatory and indispensable in the determination of probable cause;
the necessity arises only when there is an utter failure of the evidence to show the existence of probable
cause; otherwise, the judge may rely on the report of the investigating prosecutor
The Judge must:
satisfy himself of the existence of probable cause
not required to personally examine
judges merely determine the probability, not the certainty, of guilt of an accused
personally review the initial determination of the prosecutor finding probable cause to see if It is supported
by substantial evidence
but such personal examination is not mandatory and indispensable in the determination of probable cause;
the necessity arises only when there is an utter failure of the evidence to show the existence of probable
cause; otherwise, the judge may rely on the report of the investigating prosecutor
PROBABLE CAUSE (on WARRANT OF ARREST), defined
assumes the existence of facts
that would lead a reasonably discreet and prudent man to believe that a crime has been committed or it was
likely to be committed
by the person sought to be arrested
In determining probable cause:
average man weighs the facts and circumstances
without resorting to the standards of the rules of evidence
of which he has no technical knowledge
 he relies on common sense
demands more than suspicion
requires less than evidence
Personal determination by the judge
in Carbonell case – judge is not required to personally examine the complainant and her witnesses; he may
take into consideration the documentary evidence, supporting affidavits
however, the Court found that the judge’s finding of lack of probable cause was premised only on
the complainant’s and her witnesses’ absence during the hearing scheduled by the judge for the
judicial determination of the probable cause
therefore, absence of the complainant or the witnesses, or failure or refusal to take the witness stand
would not warrant the existing of probable cause #lol #dontstatetheobviousclairy
SC found that the judge committed grave abuse of discretion for dismissing the criminal case on the
ground that petitioner and her witness failed to comply with his orders to take the witness stand
Judge may disregard the fiscal’s report and require the submission of supporting affidavits of witness to aid him
in determining probable cause – case: Soliven v Makasiar
Judges just personally review the initial determination of the prosecutor finding a probable cause to see if it
is supported by substantial evidence
Personal examination – not mandatory and indispensable;
When personal examination is required (literal)
Only when there is utter failure to show the existence of probable cause
Otherwise, judge may validly rely (not solely – hence, evaluation of documentary evidence) on the report of
the prosecutor , provided that he likewise evaluates the documentary evidence in support thereof
He should not rely solely on the report of the investigating prosecutor but must also evaluate the
documentary evidence and affidavits, and stenographic notes
If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause,
it is not compulsory that a personal examination of the complainant and his witnesses be conducted
Never allowed to follow blindly the prosecutor
When directly filed with the MTC
1. Judge shall personally evaluate the evidence; or
2. Personally examine in writing and under oath the complainant and his witnesses in the form of searching
questions and answers
Method of Arrest with a warrant
1. Warrant is issued by a judge
2. Delivered to the proper law enforcement officer for execution
3. Head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed
within 10 days from its receipt
4. Within 10 days after the expiration of the period, the officer to whom it was assigned for execution shall
make a report to the judge who issued the warrant
5. In case of his failure to execute, he shall state the reasons for its non-execution
Procedure of arrest by virtue of a warrant; the OFFICER SHALL:
1. Inform the person to be arrested of the cause of his arrest;
 2. Inform him of the fact that a warrant has been issued
The information need not be made when the person to be arrested:
1. Flees
2. Forcibly resists
3. Giving of the information will imperil the arrest
NOTE: The officer need not have the warrant in his possession at the time of the arrest. However, after the
arrest, the warrant shall be shown to him as soon as practicable, if the person arrested so requires.
The officer also has the duty to deliver the person arrested to the nearest police station or jail without necessary
delay.
When the person to be arrested is INSIDE a BUILDING
1. The officer is authorized
2. To break into any building or enclosure
3. In case he is refused admittance
4. After announcing his authority and purpose
5. If necessary, he may break out from said place to liberate himself
LAWFUL WARRANTLESS ARREST*
1. in flagrante delicto – in his presence, the person to be arrested, is actually committing or is attempting to
commit an offense
1. citizen’s arrest is allowed
2. hot pursuit – an offense has just been committed, and he has probable cause to believe based on personal
knowledge of facts/circumstances that the person to be arrested has committed it
3. escapee – when the person to be arrested is a prisoner who has escaped
*the exception to the general rule that a warrant of arrest is required before an arrest is made
WHAT is CITIZEN’S ARREST?
a private person, may without a warrant, arrest a person when, in his presence, the person to be arrested is in
flagrante
Who may make the warrantless arrest?
1. Peace officer
2. Private person
3. a bondsman
Requisites of in flagrante delicto
1. accused must perform an overt act
2. done in the presence or within the view of the arresting officer
mere suspicion and reliable information – not justification for a warrantless arrest!
CASES where warrantless arrest is upheld
The HOT PURSUIT exception
REQUIREMENTS:
1. Offense has just been committed
2. The person making the arrest has personal knowledge of facts indicating that the person to be arrested
has committed it
Note: a warrantless arrest made, one year after the offense was allegedly committed is an illegal arrest!
Does not require the officers to personally witness the commission of the offense; PERSONAL KNOWLEDGE
must be based on PROBABLE CAUSE – actual belief or reasonable grounds of suspicion.
Reasonable ground:
1. Based on actual facts
1. Supported by circumstances sufficiently strong in themselves to create probable cause of guilt
2. Probable cause with good faith
Method of arrest WITHOUT a WARRANT
1. Arrest by an officer; he shall inform:
1. Of his authority
2. Cause of his arrest
The info need not be given if:
1. If the person to be arrested is engaged in the commission of an offense
2. In the process of being pursued immediately after its commission
3. Escapes or flees
4. Forcibly resists before the officer could inform him
5. The information will imperil the arrest
Officer may:
Summon assistance
Break into a building or an enclosure or break out from it
1. Arrest by private person; he shall inform
1. His intention to arrest him
2. Cause of his arrest
*need not be given under the same conditions above
NOTE: the right to break into a building or an enclosure does not apply to private person!!
TIME OF ARREST: any day; any time of the day or night
Rights of a person arrested:
1. Assisted by counsel at all times
Counsel must be independent and competent
2. Remain silent
3. To be informed of the above rights
4. To be visited by the immediate members
Custodial investigation – in a form of an “invitation” to person who is investigated in connection with the
offense he is suspected to have committed
Effect of an ILLEGAL ARREST on JURISDICTION of the court
Legality of the arrest affects only the jurisdiction of the court over the person
Waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility of evidence seized
during an illegal warrantless arrest.
Chapter XI JUDGMENT
Judgment, defined.
Adjudication by the court
That accused is guilty or not guilty
Imposition of the proper penalty
And civil liability
Formal Requisites of Judgment:
1. Written in the official language
2. Personally and directly prepared an signed by the judge
3. Must contain clearly and distinctly
1. Statement of facts
2. Law
Jurisdictional requirements:
1. over the subject matter
2. territory
3. person of the accused
Contents of a judgment of CONVICTION
1. legal qualification
2. aggravating and mitigating circumstances
3. participation of the accused; principal, accomplice, accessory
4. penalty imposed
5. civil liability or damages
Contents of a judgment of ACQUITTAL:
1. state whether the evidence of the prosecution:
1. absolutely failed to prove the guilt
2. merely failed to prove his guilt beyond reasonable doubt
2. determine if the act or omission from which the civil liability might arise did not exist
Note: verdict of acquittal is immediately final!
Rule on duplicitous complaint or information; two or more offenses in a single information or complaint – 2-in-
1
Remedy: MOTION TO QUASH (during arraignment)
Exception: when the law prescribes a single punishment for various offenses
What happens if the accused fails to object before trial?
Waiver
May be convicted for as many offenses as are charged and proved, and impose penalty for each offense!
Note: can no longer be raised on appeal
Judgment rendered by a judge who did not hear the case
Valid!
Valid even if he merely relied on the records of the case
 especially where the evidence on record is sufficient to support its conclusion
Variance doctrine; variance between allegation and proof
1. offense proved is different from the offense charged
2. offense charged is either included in the offense proved or necessarily includes the offense proved
General rule: convicted only of the offense charged
Exception: variance doctrine; may be convicted of the:
offense proved which is included in the offense charged or of the offense charged which is included in the
offense proved
When an offense includes or is included in another
1. essential elements or ingredients of the offense charged constitute or form part the offense proved
Promulgation of Judgment
1. by reading in the presence of the accused and any judge
2. for light offense – in the presence of counsel or representative
3. may be promulgated by the clerk of court if the judge is absent or outside the province or city
4. if the accused is confined or detained in another province or city, may be promulgated by the executive
judge of the RTC having jurisdiction over the place of confinement or detention
Notice on the promulgation of judgment
given by the clerk of court personally to the accused or thru his bondsman or warden and counsel
if tried in absentia – served at his last known address
What if the accused fails to appear in the promulgation?
1. Shall be made by recording the judgment in the criminal docket
2. Serve him a copy at his last known address or thru his counsel
Judgment for conviction:
Accused fails to appear without just cause
He shall lose the remedies available against the judgment
Court shall order his arrest
Within 15 days from promulgation of judgment, accused may surrender and file a motion for leave of court
to avail the remedies
Modification of Judgment
1. Upon motion of the accused
2. Before the judgment becomes final or before appeal is perfected
When judgment becomes FINAL
1. After the lapse of the period for perfecting an appeal; or
2. When the sentence has been partially or totally satisfied or served
3. When the accused has waived his right to appeal
4. He has applied for probation
Entry of judgment
After judgment has become final, it shall be entered in accordance with Section 8, Rule 120, Rules of Court
II – NEW TRIAL OR RECONSIDERATION (conviction)
Who may file? – Accused
When filed? – any time before the judgment of conviction becomes final
The court may:
1. Grant a new trial or reconsideration
2. With the consent of the accused
3. Without waiting for the motion of the accused
Grounds for new trial
1. Errors of law
2. Irregularities prejudicial to the substantial rights
3. New and material evidence has been discovered*
1. Discovered after trial
2. accused could not have discovered and produced
3. Even with the exercise of reasonable diligence
4. And which if introduced would probably change the judgment
1. It must be material
2. Must affect the merits and produce a different result if admitted
3. must concur
Grounds for reconsideration
1. errors of law
2. errors of fact
Form:
1. in writing
2. state the grounds
1. if based on new and material evidence it should be supported by affidavits
Notice of the motion
given to the prosecutor
When hearing on the motion is required
when it calls for a resolution of a question of fact
EFFECT:
1. based on errors of law or irregularities
all the proceedings and evidence affected shall be
1. set aside; and
2. taken anew
the court may allow additional evidence
2. newly-discovered evidence
evidence already adduced shall stand
the newly-discovered evidence shall be taken together with the evidence already in record
3. in all cases where it is granted
 original judgment shall be set aside or vacated
new judgment shall be rendered
III – APPEALS
Not a natural right
Merely a statutory privilege
May be exercised in the manner and in accordance with the provisions of law
Once granted by law, its suppression is tantamount to a violation of due process
Subject: judgment or final order
Who may appeal?
Any party
Exception: accused will be placed in double jeopardy
What if the accused appeals?
Waives his right against double jeopardy
Runs the risk of being sentenced to a penalty higher than that imposed by the trial court
Who may institute proceedings before the CA or SC?
Only the OSG or Solicitor General (as appellate counsel)
He should be given the opportunity to be heard in behalf of the People.
Case: appellate court failed to notify the Solicitor General of its resolution on a petition filed by the accused and
failed to require to file its comment – effect: deprivation of a fair opportunity to prosecute and prove its case
Rule: a petition for review should be filed by the Solicitor General who is solely vested with the authority to
represent the people
EFFECT OF APPEAL on CRIMINAL CASE:
Opens the entire case for review
Appellate court may correct errors; or
reverse the trial court’s decision on grounds other than those that the parties raised as errors
EFFECT of appeal on civil case:
in contrast with the criminal case
no error will be considered by the appellate court unless stated in the assignment of errors, except when:
1. error affects the jurisdiction
2. affects the validity of the judgment appealed
3. closely related or dependent on an assigned error
4. plain error or a clerical error
Change of theory on appeal – not allowed!
Rule: A PARTY CANNOT
1. change his theory on appeal
2. nor raise in the appellate court any question of law or of fact that was not raised in the court below
3. or which was not within the issue raised in their pleading
WHERE and HOW to appeal?
1. RTC – cases decided by MTC
 1. Notice of appeal served to the RTC
2. filed with the court which rendered the judgment
3. serve a copy upon the adverse party (personal service)
No notice of appeal – RTC imposed the reclusion perpetua; the CA will automatically review the judgment
1. CA or SC – cases decided by RTC
1. Judgment by the RTC in its original jurisdiction
1. Notice of appeal
2. Judgment by the RTC in its appellate jurisdiction
1. File a petition for review
2. SC – cases decided by CA
1. Petition for review on certiorari
When appeal is to be taken
1. Within 15 days from promulgation of judgment
2. The period shall be suspended from the time a motion for new trial or reconsideration is filed until
overruled
May an appeal be withdrawn?
Yes. As long as the record has not been transmitted or forwarded to the appellate court. When it is withdrawn –
judgment becomes final!
1. Motion to withdraw is filed
2. Filed before the RTC
EFFECT of appeal by any of several accused
Only binds those who appealed
Will not affect those who did not appeal
Except: judgment is favorable to others; this time it will bind the others who did not appeal
Except: procedural consequences; the stay of execution will not benefit those accused who failed to file on
time
Appeal from the civil aspect
Shall not affect the criminal aspect
Within 15 days from promulgation of judgment
Period to apply for probation
Within 15 days from promulgation
Stay of execution
Upon perfection of the appeal
procedural consequences; the stay of execution will not benefit those accused who failed to file on time
COURT OF APPEALS may dismiss:
1. if the appellant fails to file within the time prescribed
1. except: appellant is represented by a counsel de oficio
2. if the appellant escapes
Ground for reversal of judgment or its modification
Rule: CA is mandated not to reverse or modify a judgment
Except: After examination of the record and evidence, it finds that there is an error which injuriously affects the
substantial rights of appellant
Rule if the opinion of the Supreme Court en banc is equally divided
1. It shall again be deliberated (re-deliberation)
2. If no decision is reached, judgment of conviction of the lower court shall be reversed and the accused
acquitted!
IV PROVISIONAL REMEDIES IN CRIMINAL CASES
Remedies available in a civil action; since a civil action is deemed instituted in the criminal case, it follows
that provisional remedies are also available, save in cases where the civil action is reserved, or waived,
or separately filed
To avail:
the criminal action must be one with a corresponding civil liability
the civil action must be one arising from the offense charged and which is instituted in the said criminal
action
IF, civil action has been waived, reserved, or instituted separately – the provisional remedy may not be
availed of. Instead, it may be applied for in the separate civil action
Who may avail? – offended party
What are these provisional remedies?
1. Preliminary attachment
2. Preliminary injunction
3. Receivership
4. Replevin
5. Support pendente lite
When preliminary attachment is available
when the civil action is properly instituted in the criminal action
when the accused is about to abscond
when criminal action is based on claim for money or embezzlement or misappropriation
when accused has concealed, removed, or disposed of his property, or is about to do so
when the accused resides outside the Phils.
May be availed of without the need for a showing that the accused has concealed, removed, or disposed of
his property or is about to do so.
Posted 20th August 2014 by Claire Culminas