MOTION TO QUASH

A: What is a motion to quash

S: A motion to quash is an omnibus motion questioning the validity and sufficiency in form and
substance of the complaint or the information
A: Form and substance. What are the grounds for motion to quash
S: Accdg to sec 3, 117, there are 9 grounds
Facts charged does 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.

A: What is the fundamental test to determine the sufficiency of an information

The fundamental test is the hypothetical admission on the facts stated therein.
A: What are the ground for motion to quash
(samelangpohehe)
Evidence aliunde that it cannot be alleged or considered in MQ. What is evidence
aliuende
S: Evidence alieunde are pieces of evidence that are not expressly stated in the court
A: No. Accdg to Black Law’s Dictionary evidence aliunde are those evidence that is express
outside of the source. Why is that evidence aliunde shall not be considered in a MQ
S: Evidence aliunde shall not be considered in a MQ because only evidence that are being
submitted in court should be given weight in deciding
A: That is wrong. The reason behind this is because when there is a MQ it only consider the
information only not evidence outside of the information that is why in resolving a MQ, you
hypothetically admit all the material averments in the information to determine whether you deny
or grant a MQ. Therefore, evidence aliunde shall not be considered in a MQ. When do you file a
motion to quash?
S: You file a MQ if, before the accused enters his plea
A: Why is is that after plea, you cannot file anymore a MQ
S: Accused cannot anymore file a MQ after plea because the remedy thereafter can be used is
demurrer to evidence. Because MQ is only filed based on the information
A: Why after plea there’s no more information?
S: After plea, there will be arraignment and trial
A: Arraignment first then plea. Why is that after plea you cannot file anymore MQ. We already
discussed this in arraignment. Because?
S: Because the accused is already know, the accused has already stated
A: So what if you states guilty or not guilty?
S: Because after he already made his plea, he submits himself to the jurisdiction of the court
A: Okay. What of the form of a MQ
S: A MQ should be in writing, signed by the accused or his counsel and the third one it should
state the factual and legal grounds of the motion
A: Thank you. What are the grounds for MQ
S: (same pohehe)
A: Were the grounds for MQ stated in sec 3, rule 117 exclusive?
S: Yes po.
A: So when there is a complete lack of Prelim Investigation you cannot file a MQ
S: When there is lack or complete absence of PI, a motion to dismiss may be filed po.
A: Can you file a MQ when there is lack of PI or not?
S: No
A: No. Why is that?
S: Because a MQ relies on the facts alleged in the information or complaint
A: So?
S: So
A: The lack or absence of PI cannot be found in a case of complaint or information thus you
cannot file a MQ. What is your remedy when there is alter lack or absence of PI?
S: Motion to dismiss
A: No. Common, rule 112. It’s a motion for reinvestigation because there is no PI. Alright thank
you.
What are the grounds for MQ
S: (same pa rinpohehe)
A: Is the ground for MQ exclusive?
S: Yes sir. If the. Only the grounds for MQ can be admitted for MQ
A: Can you file a MQ for violation of the right to speedy trial?
S: Yes sir. If the prosecution delays in the commencement of the trial. The accused may file
A: But under rule 3 of sec. 117 is not an exclusive because you can file a MQ for violation of the
right to speedy trial in the disposition of the case. When there is lack of arraignment. Can you
file a MQ?
S: No sir
A: So you will not dismiss a case based on lack of arraignment?
S: A MQ is not a motion to dismiss
A: So you will continue with the criminal case even if there is violation of right to speedy trial,
even if there is no arraignment because you said only those provided in sec. 3 can be ground
for MQ. Alright the answer to that class is a MQ only pertains to the information, only the
averments in the information and other matter that is not contained in the information is not
covered by MQ. That’s why grounds under sec. 3 is exclusive because all of those pertains to
the information. How about the violation of the right to speedy trial? You file a separate motion
to dismiss based on violation of the right to speedy trial and motion to dismiss is actually based
on the merits of the case not really on the information only. In the same manner, if the criminal
case completely lacks an arraignment, you can file a motion to dismiss because that constitute
a violation of the substantive merits of the case. Alright, you talk about that a motion to quash is
an omnibus motion. What is an omnibus motion?
S: An omnibus motion is a ?????
A: So omnibus motion attacks the information? So when there is an omnibus motion? It is only
applicable on criminal procedure?
S: No sir
A: So what is an omnibus motion? Context clues. What is omnibus? That is all in one. So
omnibus motion, all in one motion means all the available grounds, available within a period of
time shall be stated only in one motion. That is the meaning of an omnibus motion. And
omnibus motion class can be used not only in criminal procedure but also in civil procedure and
special procedure.
What are the grounds for MQ?
S: (same po ulit)
A: So a MQ is an omnibus motion right? So all averments and grounds must be stated in a MQ
otherwise these are not anymore are raised. Is there an exception to the omnibus motion rule of
a MQ?
S: …
A: The exception is what we call the non-waivable grounds. What are non-waivable grounds?
S: Lack of… For example po is…
A: There are four non-waivable grounds. What are those?
S: The courts cannot… Lack of jurisdiction over the offense charged
A: That’s one. Number 2?
S: The court’s lack of jurisdiction over the accused…
A: No
S: That the facts charged do not constitute an offense
A: Next
S: Double jeopardy
A: Next
S: That ah ano po criminal action or liability has prescribed
A: Prescription. When a ground is non-waivable, what does it mean?
S: If a ground is non-waivable is that when the accused fails to state such grounds in his motion
po, it does not necessarily effect that he can no longer be granted of the that he cannot longer
be granted the motion to quash po despite of his failure to state such ground po.
A: What? What again? Supposed, what is, when there is a non-waivable ground, what does it
mean?
S: …
A: Think about it. General rule, omnibus motion. Exception, non-waivable grounds. Why are
non-waivable grounds an exception to the omnibus motion?
S: …
A: Okay. The general rule is that you can only raise the grounds for motion to quash in one MQ,
if you do not raise those available grounds, then they are deemed waived. The exception is non-
waivable grounds. What makes them non-waivable grounds is because you can raise them at
anytime of the proceedings even if its not contained in a MQ before you enter your plea. Can
that be raised after plea? A non-waivable ground?
S: The Rules of Court provides that a ground for motion to quash should be raised before plea
A: So including non-waivable grounds?
S: …
A: Does the ROC expressly provides that non-waivable grounds should also be raised before
plea?
S: No
A: So they can be raised after plea?
S: Yes po
A: How about on appeal? Can you raise a non-waivable ground?
S: Yes
A: So you can raise the ground that the facts do not constitute an offense on appeal before the
Supreme Court?
S: No
A: I thought it can be raised on appeal?
S: …
A: That can be raised at anytime. Even after plea, even on appeal before the Supreme Court
because these are non-waivable grounds. Question, why are the four grounds lack of
jurisdiction over the offense, facts do not constitute an offense, prescription and double
jeopardy? What are these four grounds non-waivable? Why can you raise them at anytime of
the proceeding?
S: They are, these are non-waivable because ... They can, say for example if the information…..
Then
A: What so common about these four grounds? What is there common characteristic that
makes them non-waivable?
S: …
A: These 4 non-waivable grounds class affects the very jurisdiction of the court over the offense
charged so number 1, the facts do not constitute an offense, when there is a lack of element,
again the court does not have jurisdiction. There is lack of jurisdiction over the offense
obviously, the court has no jurisdiction. Prescription, double jeopardy, again, the court does not
have jurisdiction. That’s why these are non-waivable grounds because they affect the very
jurisdiction of the court. That’s the reason why class. Thank you, xxx.
xxx, what are the grounds for a motion to quash?
S: (same pa rin po hehe)
A: What is a matter of defense? According to Riano, matters of defenses are not allowed when
hearing is a MQ.
S: The matters of defense…
A: Just give me an example of a matter of defense
S: An example of a matter of defense is the… For instance, there is a crime of a homicide but
the accused said that he killed the person because of self-defense
A: Isn’t that a ground for MQ?
S: It is…
A: That if it contains averments that were true, would constitute a legal excuse or justification
S: …
A: That matter is allowed in a MQ
S: It is not allowed po in a MQ
A: So self-defense is not allowed in a MQ?
S: Yes, atty.
A: Even if it contains averments that which if true, would constitute a legal excuse or justification
S: Yes, atty.
A: Do you understand? It contains averments that which if true, would constitute a legal excuse
or justification. What does that it mean? What does that phrase means?
S: That phrase means…
A: That phrase means justifying or exempting circumstance under article 11 or 12 of the
Revised Penal Code. Is self-defense covered by article 11 or 12?
S: Yes
A: That’s actually true. That’s no. 1 of article 12. So, self-defense, is that a matter of defense?
S: Yes po
A: So a matter of defense is allowed in MQ?
S: It is not allowed
A: So you do not allow self-defense in a MQ? Alright, I’ll give you another example of a matter of
defense. Physical impossibility of the presence of the accused during the crime scene is a
matter of defense. Physical impossibility of the presence is a matter of defense that cannot be
raised in a MQ. Another example is mistaken identity, that is a matter of defense of the accused.
Again, that cannot be raised as a ground for a MQ. That’s what Riano means that a matter of
defense cannot be raised in a MQ. Well, there are exceptions, when matter of defense can be
admitted in a MQ. Can you give me that exception?
S: The exceptions are those which are included in a justifying or exempting circumstances
A: Alright class, as a general rule, a matter of defense are not allowed in a MQ except if the
ground itself allows matter of defenses. So there are several grounds in a MQ that actually
allows matter of defenses. Number 1 is that if the information contains averments that which if
true, would constitute a legal or valid justification. Another ground is prescription because a
prescription is a matter of defense available to the accused. Another ground is double jeopardy,
again, that is a matter of defense available to the accused but the Rules of Court expressly
allows these matters of defenses even though as early as a motion to quash can be actually
filed in the next step. So, what is again the test for sufficiency of a MQ?
S: The test of sufficiency in determining a MQ is the hypothetical…
A: Hypothetical admission of the averments stated therein in the information. When you file a
MQ, does the court need to conduct a hearing?
S: Yes, atty.
A: So when you file a MQ, you must always conduct a hearing? So you will… Do you know
whyyou conduct hearings? To present evidence. So you will always require a hearing for the
presentation of evidence in a MQ?
S: I’ll change my answer, atty. Since, the MQ is based on the validity of an information, and the
grounds are based on validity of an information, it is not necessary to have a hearing in a MQ.
A: So as a general rule, class, you don’t conduct a hearing when you file a MQ because the
court only needs the information and it will be useless to conduct hearings because there are no
evidence will be required. Because again you only look at the information. However, there are
exceptions. What are those exceptions?
S: …
A: Do you know? When the ground for a MQ requires matters of evidence, matters of defenses I
mean. If it requires matters of defense, you need to present evidence to prove the same. What
are the grounds that requires matters of defense?
S: The grounds for matters of defense are prescription, double jeopardy…
A: Legal excuse or justification. So in those grounds that requires matters of defenses, you need
to conduct a hearing to present evidence to prove those matters of defenses. Thank you, xxx.
Xxx, what are the grounds for motion to quash?
S: (same po ulit)
A: Now we go to one by one for grounds for a MQ. When does an information contains facts
that does not constitute as an offense?
S: The… If an element of the offense…
A: Supposed the information does not sufficiently allege an aggravating circumstance therefore
it does not qualify due course, example, from homicide to murder, there is no valid allegation of
treachery, is there a valid ground for a MQ? Because the facts do not constitute an offense?
S: No, sir. What is important is in the content of the information, the facts that constitute the
offense.
A: The allegation of treachery in an information for murder is alright to be omitted? It do not give
what?
S: Yes sir, but it will not be appreciated by the court as an aggravating
A: Even though the crime of murder does not include the sufficient allegation of treachery, you
cannot insist it in the first ground?
S: …
A: The answer to that is yes because even if without treachery, it is an offense. What is the
offense? Homicide. So it is just an aggravating circumstance. Supposed the accused was
charged with violation of BP 22. You know whats BP 22 no? Supposed it was not alleged in the
information that the accused was informed by the bank that the check has bounced. Can you
file a MQ based on the first ground?
S: No, sir.
A: No? No because notice of dishonor is not an element of BP 22. That is actually the element
of the crime of BP 22. Notice of dishonor to the accused. So failure to allege that is actually a
valid ground for a MQ under the first one. Supposed the information does not contains facts that
is sufficient to constitute an offense, can the court give the prosecutor an opportunity to amend
the information?
S: Yes, sir. The court may not…
A: I thought failure to state facts insufficient to constitute an offense in an information is a non-
waivable ground that affects the very jurisdiction of the court and yet, the court will allow the
prosecutor to amend the information
S: Since, upon filing a MQ, the court may not readily grant or deny such
A: Yes, but failure to allege all the elements of the information affects the very jurisdiction of the
court. So are you mean to tell me even if the court does not have jurisdiction, it will allow the
prosecutor to amend the information?
S: The prosecutor will be allowed and if he fails to
A: Even if the court does not have jurisdiction?
S: …
A: Alright, the answer to that is yes. But why? What’s the reason behind this? Why would the
court allow the prosecutor that amendment in a MQ?
S: If the information can be supplied by the prosecutor
A: Because under Rule 110, when you amend the information before plea, you can amend
substantially. So even lack of jurisdiction can actually be amended to include jurisdiction in the
appeal. Thank you, xxx.
xxx, what are the grounds for motion to quash?
S: (same po ulit)
A: Okay, now let’s go to the second ground, lack of jurisdiction over the offense charged, can
you give me an example of an information where you can file a MQ based on lack of jurisdiction
over the offense
S: For example, in the case of…
A: There are so many examples
S: For example, in the case of murder, the information is filed in a court where the crime did not
occur, so for example, Makati or Quezon City, the crime was actually in Quezon City but the
information was filed in Makati
A: An example class, is for the crime of murder and the information was filed in the MTC so the
MTC has no jurisdiction over the offense charged. Give me an example when you can file a MQ
when there is lack of jurisdiction over the person of the accused. Give me an example. When?
Common!
S: When the accused was not issued of a warrant of arrest. There’s no valid warrant.
A: There’s no valid warrant of arrest?
S: Yes
A: When do you require a valid warrant of arrest? During arraignment, right? Because that is
when the accused will be personally present. When you file a MQ, does the accused needs to
be present? Of course not. So that is not a valid example. What is the counterpart of arrest with
a warrant? It’s a warrant of arrest under Rule 113. So if there’s a invalid warrantless arrest, you
can actually file a MQ based on the 3rd ground. Question, the fact that the accused has been
arrested, is it contained in the information? Is it?
S: It is contained in
A: It is not contained in the information whether the accused has been arrested or not. So why
will you file a MQ based on the lack of jurisdiction over the person of the accused?
S: Because. Since, it is part of the grounds for MQ thereby, it.
A: I’m asking for the reason behind it. I know it is in the grounds for motion to quash but why can
you file a MQ based on the lack of jurisdiction over the person of the accused where the fact the
accused has been arrested or not is not in the information?
S: Because the very reason of the filing a MQ is the validity of the warrantless arrest so
A: And not the information?
S: Not in the information
A: So when you file a MQ, the question is the warrantless arrest and not the information?
S: Yes
A: So that’s the purpose of a MQ? That the hypothetical admission of the averments stated…
Okay, to answer that question, you must go back to Rule 113, under Rule 113, it states that the
arrest of a person can only be questioned before he enters his plea. Otherwise, if he does not
question his arrest, the validity of his arrest, it shall be forever be waived. So therefore the
avenue to question the validity of arrest coincides with the MQ because a MQ can only be filed
before plea. That is why it is included as one of the grounds for a MQ. Okay, thank you xxx.
Xxx, what are the grounds for MQ?
S: (same ulit po)
A: Let’s go to the 4th ground. Can you give me an example when the information can be quash
due to the lack of the authority of the officer filing the same
S: An example for that would be in the case where the information was filed by a retired
prosecutor
A: Supposed the chief prosecutor did not approve the information and resolution drafted by the
assistant prosecutor nevertheless, the clerk of the court prosecutor filed the information in court.
Can it be questioned in a MQ?
S: I think that it can be aground for MQ because the officer had no authority to do so
A: So lack of authority from the chief prosecutor or city prosecutor is a valid ground under
number 4 in a MQ
S: Yes
A: Yes, because under Rule 112, it is mandatory that the city prosecutor or the chief prosecutor
must first approve the information before it is filed in court. Suppose in the same example, the
accused did not file a MQ before plea. After plea, can he still question the lack of authority of the
officer to file the information?
S: He can no longer question on that ground po. It is…
A: So when you file an information that does not contain the approval or the proper authority of
the prosecutor, it cannot be anymore questioned after plea?
S: It can no longer be questioned po
A: Does it affect the jurisdiction of the court? The lack of authority of the officer filing the
information?
S: No, it does not affect the jurisdiction of the court.
A: The Supreme Court does not agree. In the case of Quisay vs People, this is the case of
Justice Bernabe. So in this case, the court ruled that the failure to authorized the filing of the
information of the prosecutor is a jurisdictional defect that can actually be raised even after the
plea of the accused. Therefore, the lack of the authority of the prosecutor can be raised even
after plea, after the decision, or even on appeal and when you receipt, it affects the jurisdiction
of the law. Well personally, that is the ruling of the court. But personally, I do not agree because
Rule 117 is clear, there’s only 4 grounds, non-waivable grounds for a motion to quash that is
lack of jurisdiction of the offense, facts do not constitute an offense, prescription and double
jeopardy. Lack of authority of the prosecutor is not included in this Rule 117 under non-waivable
grounds but Quisay vs People has not been overturned yet, therefore, it is a valid jurisprudence.
It can actually be asked on the 4th Sunday of the bar. So take note of that, Quisay vs People.
Okay, now let’s go to the 5th ground, give me an instance when a MQ can be filed because the
information does not conform to the prescribed form.
S: An example would be, where in the information, there are two persons named but there’s a
provision with…
A: What are the rules of form in the information? Do you know? The rules of form. The rules on
form is actually found in Rule 110.
S: The information lacks…
A: Example class, the information does not state the specific date of the offense. That is a
violation of the form prescribed under Rule 110. Other one, is that it does not follow the rule on
confidentiality of the offended parties, if there is a minor party and the name is not hidden, then
that can be a ground because it does not conform with the prescribed form. Suppose, a MQ
based on this ground that does not conform. What shall be the action of the court?
S: the action of the court will be to allow the prosecutor to amend the information
A: Why would the court allow the prosecutor to amend the information?
S: The court would allow the prosecution to amend the information because the prosecution is
in the interest of the State to…
A: Because under Rule 110, a formal amendment before plea is always allowed. That’s the
reason why class. So you notice class, all of the grounds in Rule 117 is actually based on Rule
110, 111, 112, 113, 114. Alright thank you, xxx.
Xxx, what are the grounds for MQ?
S: (same po ulit)
A: Let’s go to the other ground. When the information charges more than one offense. Why is
that when an information charges more than offense it can be subject to a MQ?
S: Because, under Rule 110, Sec. 13, duplicity of offenses would make the information invalid.
A: Is there an exception to that rule?
S: Yes po. If the single punishment for various offenses is prescribed by law which are as
follows po, 1st if it is a complex crime, 2nd if it is a special complex crime, 3rd if it is a continuous
crime, 4th if the crime can be committed in various ways, 5th if the crime is negligent of other
offenses and lastly, if the crime po results to another offense
A: Does this ground, the grounds for motion to quash waivable?
S: No po.
A: So when the offense, when the information contains more than one offense, you cannot
anymore raise this after plea?
S: No po sir
A: If its waivable. Suppose the accused waives his right to file a MQ based on this ground, what
happens?
S: …
A: So let’s say the information contains offenses of murder, homicide, physical injuries, rape,
robbery and then the accused fails to file a MQ based on this ground that it contains more than
one offense, what will happen?
S: The accused may, the trial will not push through po.
A: So it is a non-waivable ground? Again, there is an information to charge murder, homicide,
physical injuries, rape and then the accused failed to file a MQ because the information contains
more than one offense, what will happen? Will the trial continue?
S: No.
A: It will continue. What will the court do?
S: The court will separate the…
A: So it will separate the information? With the offenses?
S: Yes
A: So one decision for murder, one decision for homicide, one decision for physical injuries?
Common, this is just a review of your Rule 110. The effect of the waiver of the accused of this
ground meaning that the court will convict the accused as many crimes as charged in the
information. So there will only be one decision that will convict of all the offenses in the
information. When can an information can be dismissed or quash when the criminal liability of
the accused has been extinguished? What does that means?
S: It means that a…
A: It means that there has been a prescription. What are the two kinds of prescription? What
prescription is pertaining to in this ground of a MQ? Extinguishment of criminal liability or action
S: It is the prescription of the…
A: Do you know the kinds of prescription?
S; Prescription po crime and of the penalty
A: So what will apply? Prescription of crime or prescription of penalty? Criminal liability or action
has been extinguished
S: Prescription of the crime po
A: The crime. It is actually the prescription of the crime. Thank you, xxx
We will discuss first double jeopardy. I hope it has been discussed thoroughly in your
constitutional law 2. So there are two concepts of double jeopardy in the constitution. The first is
double jeopardy on the same offense and double jeopardy for the same act in a law or
ordinance. But before we determine that, we must first determine if there is a first jeopardy that
has attached. How will you know if the first jeopardy has attached? There are 4 requisites, 1st
jeopardy will attach when there is a valid information, when the court has competent jurisdiction,
when a valid plea has been entered and when the defendant has been acquitted, convicted or
otherwise the case has been otherwise dismissed or terminated without his express consent. So
when all those 4 grounds, requisites has been followed, the first jeopardy has been attached.
What is the effect when the first jeopardy has been attached? It is that you cannot anymore file
a second case based on the same jeopardy because that would mean double jeopardy. That’s
what the concept of double jeopardy is. First jeopardy first which mean you cannot file a
subsequent case because that would mean as double jeopardy. Again, remember the 4
requisites for the first jeopardy will attach. If any of these 4 requisites is not present, then the 1 st
jeopardy will not attach. Okay, let’s got to some situations, suppose an information for the crime
of homicide was filed against the accused and then a MQ was filed and it was granted by the
court, so the criminal case for homicide has been dismissed. Can the prosecutor file a second
case for homicide? The answer is yes, because, there is no double jeopardy yet. Why is there
no double jeopardy yet? Because the first jeopardy has not yet attached. What is lacking on
those 4 requisites? There are many lacking requisites. 1st, there is no valid information, that’s
why the homicide case was dismissed based on the MQ. 2nd, there was no yet plea entered
that’s why you were able to file a MQ because there was not plea yet, and thirdly, the defendant
has not been convicted or acquitted or the case has otherwise been dismissed or terminated
without his express consent. The meaning of the 4th requisite class, acquittal, conviction or the
case has been dismissed or otherwise terminated means that the case must be decided on the
merits. If its not been decided in the merits, then it is not considered an act of acquittal,
conviction, dismissal or termination. So there must first be a decision based on the merits. So if
an information was quashed before plea, then there is no dismissal based on the merits.
Therefore, you do not comply with the 4th requisite.
Okay, next situation, suppose you file an information for homicide and then, the court convicts
the accused for homicide and then the accused files an appeal within 15 days and then the
Court of Appeals rendered a decision finding the accused guilty of murder. So from homicide,
conviction of homicide, it is now conviction of murder by the CA. Isn’t it that double jeopardy?
the answer is, no. Why? What is lacking in the 4 requisites? Is there a valid information? Yes,
that’s why there’s a conviction. Is there a valid jurisdiction of the court? Yes, the RTC rendered
as well. Was there valid plea? Of course because there is a decision. The 4th requisite is again,
the missing, but attorney, the accused was convicted of the crime of homicide, isn’t it that the 4 th
requisite? The answer to that class is, the conviction is not yet final. Because when there is a
judgment of conviction, there is a 15-day reglementary period. Before the 15-day reglementary
period expired, the judgment of conviction is not yet final and executory, therefore it is subject to
appeal, it is subject to review, if it is subject to review, then you do not comply yet with the 4 th
requisite that the accused has been convicted, acquitted or the case had been dismissed or
otherwise terminated. So that’s the reason why class when you appeal, you can actually
increase the crime of theft and that it will not violate double jeopardy. So what is a valid example
of double jeopardy? Suppose an information was filed in court, there has been conviction for
homicide, and on the same situation or the same act of homicide, you file a separate case for
serious physical injuries or frustrated homicide as the case may be. That already constitute
double jeopardy because it contains it is contained in the same act so offenses necessarily
included in the first jeopardy as we said is covered by second jeopardy. So the 4 requisites must
first be complied with.
Okay, next situation, suppose an information for homicide was filed and then the court acquitted
the accused and the OSG filed an appeal within 15 days before the CA. Question, is there a
violation of the right against double jeopardy? The answer to that is yes. Was the 4 requisites
valid, complied here? Let’s have a review. Number 1, is there a valid information? Yes that’s
why there is an acquittal. 2nd, was there a court with competent jurisdiction? Yes, because the
RTC has been able to render a judgment of acquittal. 3rd, was there a valid plea? Yes, because
that the reason why there is an acquittal. Number 4, that the accused has been acquitted,
convicted, or the case had been dismissed or otherwise terminated without his express consent.
So in this case, the accused was acquitted but there is an appeal within 15 days, does it mean
that the acquittal is not yet final and executory? The answer to that is when there is a judgment
of acquittal, there is no reglamentary period, it is immediately executor. Unlike in conviction,
there is a 15-day reglamentary period, in acquittal, there is no 15-day reglamentary period. That
is why when you’re acquitted, you cannot anymore appeal it to the higher court because when
you appeal it, it is already double jeopardy. Because you already complied with the requisites of
the first jeopardy based on the decision of acquittal. That’s the reason why class, the OSG
cannot anymore appeal a judgment of acquittal because the judgment is immediately executory
and therefore, first jeopardy has attached. But there are exceptions to that, when the OSG files
a petition for certiorari because when you file a petition for certiorari, you are not questioning the
decision of acquittal, you are questioning the grave abuse of discretion amounting to lack or
excess of jurisdiction. Again, when you question jurisdiction, you question that the lower court
has no jurisdiction, that the 3rd element of jeopardy is not present, that the court has a valid
jurisdiction. That’s why petition for certiorari may still be allowed when there is a grave abuse of
discretion and that is class, the case of Galman vs Sandiganbayan. In the case of Galman vs
Sandiganbayan, Galman, the gunman of Ninoy Aquino, that’s under trial, initially, in that case
class, the officers of Avesco and the generals of Marcos were acquitted because there is no
sufficient evidence but in the re-opening of the case, it was found out that the Justices of the
Sandiganbayan particularly Justice Pamaran was actually convinced by the Malacanang to
acquit them because they were invited in the Malacanang. The lack of partiality of the Justices
therein shows grave abuse of discretion. If there is a grave abuse of discretion, then the court,
the Sandiganbayan has no jurisdiction. If it has no jurisdiction, therefore, the first jeopardy has
not yet attached. That’s why it is still appealed in the SC. And how did the SC ruled? They
convicted all of the officers of Avesco and the generals of Marcos. That is the reason where
there is acquittal and yet, because of lack of jurisdiction, it was still appealed to the SC.
Okay, again, let me return back to my earlier statement that even offenses necessarily included
in the first jeopardy will still be covered by the second jeopardy. So this was the case of Ivler vs
San Pedro, this is the famous case of Ivler, the ex-marine in the US that went to the PH and
killed a lot of people. So he was initially charged with crime of reckless imprudence resulting to
serious physical injuries and reckless imprudence resulting to homicide. So the judge, allowed
Ivler to plead guilty for the reckless imprudence resulting to serious physical injuries and then
the judge wanted to convict him of reckless imprudence resulting to homicide. Ivler argued that
the set of instruction is included in the offense where he pleaded guilty and he was meted with
the penalty of censure. That the SC said that it is actually correct because a charge of reckless
imprudence is just one offense, it necessarily includes all of the resulting physical injuries or
homicide or damage to property so therefore, when Ivler pleaded guilty to the offense of
reckless imprudence resulting to serious physical injuries, the charge of all is already included
therein and you cannot anymore continue with the prosecution of that second criminal case
because that constitute as double jeopardy.
Okay, what is very important class, the concept of double jeopardy is the dismissal or
termination of the case must be without the express consent of the accused. Therefore, you can
have double jeopardy. So if the dismissal or termination of the case was based on the express
consent of the accused, you cannot raise the ground of double jeopardy. I’ll give you an
example. Suppose, the prosecution is at trial for presenting of evidence, for one reason or
another, they moved for the provisional dismissal of the case. So the prosecutor filed a
provisional dismissal of the case. The court grants it. Can the accused state that you cannot
anymore revive it because the dismissal is with double jeopardy, it complied with all the
requisites therein. The answer to that is wrong because it does not actually comply with the 4th
requisite. Why? Because the dismissal was actually with the express consent of the accused.
Because one of the elements of provisional remedy is there must be an express authorization
from the accused so in that case, the dismissal was with express authorization of the accused
therefore, there is no double jeopardy. However, there are 2 exceptions to that rule that even if
the accused was the one who filed for the dismissal of the case, there will still be double
jeopardy. What are those 2 exceptions? The 1st exception is, when there is a demurrer to
evidence, as you will learn later on, it is the accused that files a motion to the court a demurrer
to evidence. If that is granted, then that is actually already a double jeopardy. You cannot
anymore file a second case for the same act. That is the exception to the 4th requisite, number
1, demurrer to evidence. What is the 2nd exception? That even though the accused was the one
who filed it, with his express consent, it will still constitute as double jeopardy, the 2nd exception
is when the accused files a motion to dismiss based on the violation of the right to speedy trial.
When the accused files that motion, even if it his with his express consent and even if the case
was dismissed, it cannot anymore be re-filed because that is based on jurisprudence, already
constitutes double jeopardy. So remember class, as a general rule, if the dismissal has been
with the express consent of the accused, there is no double jeopardy, except when it is a
demurrer to evidence or if it is a motion to dismiss based on the violation of the right to speedy
trial.
Okay, let’s continue.
Xxx, what are the grounds for a motion to quash?
S: (same po ulit)
A: What is res judicata?
S: Res judicata is applied in civil cases. It involves two civil actions in which a, both cases
involves the same parties and same cause of action so …
A: Since you’re a 2nd year, I will forgive you. But if you are a 3rd year, you’re not forgivable. Let
me ask you this, what is res judicata in prison grey?
S: Res judicata in prison grey is another term for double jeopardy
A: Actually class, that was asked in the 2014 bar exams, what is res judicata in prison grey.
Many people were not able to answer that. Suppose a MQ has been filed before the court, what
are the possible actions that may be taken by the court?
S: …
A: Suppose you’re a judge, a motion to quash was filed in your sala, what are your possible
actions?
S: In the MQ based on the 1st ground that the facts charged do not constitute an offense…
A: There are 3 possible actions, number 1, grant the motion to quash. What’s the number 2?
What’s the opposite of grant?
S: Deny the MQ and order the amendment.
A: Yes. Order the amendment. So those are the 3 possible actions that may be undertaken by
the court. Again, the court can order the amendment of the information, is there a possibility that
the court may dismiss the information.
S: Yes po. If the amendment is not sufficient po.
A: Suppose the court grants the MQ, can the criminal case be dismissed?
S: No po. The granting of MQ does not necessarily mean the dismissal of the case. A separate
motion to dismiss may be filed po.
A: So you file a MQ and a motion to dismiss? You will file a separate motion? Do you know
what’s the meaning of quash?
S: It overthrows the…
A: You overthrow the information, so when you overthrow the information, can the case be
dismissed? Obviously, that’s the reason why you file a MQ, to dismiss a case. Suppose a MQ
was granted, can the prosecutor, re-file the case?
S: Yes po.
A: Yes? That’s it? There are exceptions of course. When the Rules of Court allows the re-filing
of the case even if the MQ was granted but there are exceptions wherein even if the MQ was
granted, you cannot anymore re-file the case. What are those exceptions? Common, there are
only 9 grounds for MQ, just pick something.
S: …
A: Okay class, you can always re-file an information it is quashed by the court but there are two
exceptions, when the quashal was based on prescription and double jeopardy. Why is that?
Why can’t you re-file an information based prescription and double jeopardy?
S: You cannot anymore re-file an information based on prescription because in that case, the
criminal action has already been extinguished
A: How about double jeopardy?
S: Because double jeopardy po is prohibited under the Constitution
A: So in those two grounds class, you cannot anymore re-file a case if your information has
been quashed by the Court. There is actually a counterpart provision in the rules of civil
procedure, the grounds for lis pendentia, res judicata and prescription, you cannot allow the re-
filing of the case. Have I told you class that the rules on civil procedure has been amended? It
will be applicable to the 2021 bar. Rule 16 now has been deleted. Okay, thank you xxx.
Xxx, what are the grounds for motion to quash?
S: (same po ulit)
A: Suppose the court denies a MQ, what will happen?
S: When the court denies a MQ, it does not necessarily follow that it will dismiss the case, it will
proceed to trial.
A: It will proceed to trial? Suppose the court issues an order denying a MQ, can the accused
appeal the court’s denial of the MQ?
S: When there is an order…
A: Did you have civil procedure? Then I can ask you a question. Can you appeal a denial of the
MQ?
S: No. You cannot appeal an order of a MQ
A: Order the denial of the MQ
S: An order of denial of a MQ because a denial of a MQ is an interlocutory order
A: The order of denial of a MQ is an interlocutory order
S: Hence…
A: Do you know what is an interlocutory order?
S: If it is subject to an interlocutory order, it is not subject to appeal
A: What is an interlocutory order?
S: An interlocutory order is not a final order, it does not constitute final judgment
A: Okay, an interlocutory order is an order that needs something more to be done. So in this
case, there is something more to be done which is trial. Therefore, you cannot appeal. Can you
file a motion for reconsideration in a denial of a MQ?
S: No po.
A: The answer is you can always file a Motion for Reconsideration in any order of the court. Can
you file a petition for certiorari against the order of denial of a MQ?
S: No po.
A: The answer is yes when there is grave abuse of discretion amounting to lack or excess of
jurisdiction. Okay, what is a provisional dismissal?
S: A provisional dismissal under the Rules of Court is when the accused or the counsel moves
for a provisional dismissal
A: The prosecutor moves for a provisional dismissal when there has been express consent
S: When there has been express consent by the accused and when there is a notification to the
offended party?
A: Why is the prosecutor usually moved for a provisional dismissal?
S: A usually moved for a provisional dismissal when
A: What do you think? It is not provided in the rules of court. As explained by Dean Riano
S: …
A: When?
S: When…
A: This is usually resulted to class when the material witness of the prosecutor does not present
itself to the court because in that case, the trial cannot anymore continue. The remedy is to
invoke provisional dismissal. Question, suppose the accused jumps bail before arraignment,
therefore trial cannot proceed because there is no arraignment, can the prosecutor moved for
provisional dismissal?
S: No po
A: Why?
S: They cannot file for a provisional dismissal because when accused jumps bail, the
proceeding may be tried in absentia
A: Jumps before arraignment? Trial in absentia?
S: Before arraignment
A: If the accused jumps bail before arraignment, there can be no trial in absentia so the
prosecution may moved for provisional dismissal. Is that allowed?
S: …
A: The answer is no. Why is that not allowed?
S: It is not allowed because…
A: Because the accused cannot give his express consent because he jumps bail. If you jump
bail you cannot anymore locate the accused, therefore you cannot move for a provisional
dismissal. What is the time-bar rule?
S: A time-bar rule is when a provisional dismissal in effect will be permanent.
A: When will the time-bar rule apply?
S: A time-bar rule will apply when an offense is punishable for less than 6 years, the time-bar
will be 1 year from the issuance of such order and when an offense is punishable by more than
6 years, it will be 2 years from the issuance of such order
A: Alright thank you, xxx.