MOTION TO QUASH reviewable by appeal or by certiorari before
judgment.” This is however, only a general rule.
Time for filing the motion to quash
(1) The MTQ may be made at any time before the
accused enters his plea. (Sec.1, Rule 117, RoC).
(2) A MTQ is generally not allowed in a SP except on
the ground of lack of jurisdiction over the subject
matter or failure to comply with the barangay
conciliation proceedings mentioned in Sec. 18of
the 1991 Rule on SP.
Form and contents of the mtq
The rule does not permit an oral motion to quash. The
motion shall be in writing. The motion must comply
with the following requisites:
(a) The motion shall be in writing;
(b) The motion shall be signed by the accused or his
counsel; and
(c) The motion shall distinctly specify the factual and
legal grounds of the motion. (Sec. 2, Rule 117,
RoC).
MTQ is not a Demurrer to Evidence; Distinctions
(1) A mtq a complaint or an information is filed before
the accused enters a plea, whereas a demurrer in
a criminal case is filed after the prosecution rested
its case, and hence, presupposes that the accused
has already entered his plea and is in fact already
going through a trial.
(2) Rule 117 does not require a prior leave of court for
the filing of a mtq. Under Rule 119, a demurrer to
evidence may be filed by the accused either with
leave or without leave of court.
(3) The grounds for a mtq are not grounds for a
demurrer to evidence. Under Section 23 of Rule
119, the ground for a demurrer to evidence is
“insufficiency of evidence.” Such ground is not a
basis for filing a mtq.
(4) The ground for a mtq may be based on the matters
found on the face of the complaint or information
as when it is alleged that the facts charged do not
constitute an offense or that the complaint or
information does not conform to the prescribed
form. A demurrer to evidence would necessarily be
predicated upon the matters outside of the
complaint or information such as the evidence or
lack of it.
(5) When a mtq is granted, a dismissal of the case will
not necessarily follow. The court may even order
the filing of a new complaint or information
because an order sustaining the motion is
generally not a bar to another prosecution. (Sec.
5&6, Rule 117). The grant of demurrer on the
ground of insufficiency of evidence is, by
jurisprudence, deemed an acquittal and would
preclude the filing of another information or an
appeal by the prosecution. (Condrada vs. PP, 398
SCRA 482).
(6) If the court, in denying the mtq acts without or in
excess of jurisdiction or with grave abuse of
discretion, then certiorari or prohibition lies.
(Lazarte vs SB, GR 180122). As expressly provided
under the last paragraph of Sec. 23 of Rule 119,
the order denying the motion for leave to file a
demurrer or the demurrer itself “shall not be
Court shall consider only those grounds stated in
the motion
As a general rule, in resolving the mtq filed by the
accused, the court shall consider no grounds other
than those stated in the motion. The only ground
which the court may consider even if not stated in the
mtq is lack of jurisdiction over the offense
charged. (Sec. 2). Hence, even if a reading of the
information indicates the presence of averments which
if true would constitute a legal justification for the acts
of the accused, such ground shall not be considered by
the court if it was not stated or invoked in the mtq.
Execution of an affidavit of desistance is not a
ground for a motion to quash
(1) The execution by the offended party of an affidavit
of desistance is not a ground for a mtq a complaint
or an information. It is not one of those
enumerated in the RoC.
(2) An affidavit of desistance or pardon is not a ground
for dismissal of an action, once it has been
instituted in court. (PP vs Ramirez, GR 150079-
80).
(3) In PP vs Salazar, the accused-appellant claims that
the case should have been dismissed by the trial
court, considering that the alleged victim had
executed an affidavit of desistance exonerating
him from the crimes charged. The Court rejected
such argument and held that an affidavit of
desistance is viewed with suspicion and
reservation. Several jurisprudence regarded such
affidavit as exceedingly unreliable, because it can
easily be secured from a poor and ignorant
witness, usually through intimidation or for
monetary consideration. Moreover, there is
probability that it would be later on be repudiated,
and criminal prosecution would thus be
interminable.
Absence of probable cause not a ground to quash
an information
(1) The absence of p.c. for the issuance of a w/a is not
a ground for the quashal of the information but is a
ground for the dismissal of the case.
(2) The Court defined the term “to quash” to mean “to
annul, vacate, or overthrow,” implying that
quashing an information does not necessarily mean
its dismissal. (PP vs SB, 439 SCRA 390).
Matters of defense are not grounds for a mtq
- As a general rule, facts that constitute the defense
of the accused against the charge under information,
such as self-defense, must be proved by them during
trial. Such facts and circumstances do not constitute
proper grounds for a mtq the information on the
ground that the material averments do not constitute
the offense. (Soriano vs PP, GR 159517-18, June 30,
2009). However, there are defenses allowed by the
rule to be grounds for mtq like dj or extinguishment of
the criminal liability. (Sec. 3).
Absence of p.i. is not a ground to quash an
information
- The absence of a p.i. or inability to participate in the
p.i. is not a ground for a mtq. but for a petition for a
reinvestigation. (Rodis vs. Sandiganbayan, GR 71404-
09, Ocotber 26, 1988).
- Thus, in Vasquez vs Hobilia-Alinio, the SC held that
neither the court’s jurisdiction nor validity of an
information adversely affected by deficiencies in the
p.i. Instead, the SB is to hold in abeyance any further
proceedings therein and to remand the case to the
Office of the Ombudsman for the completion of the
p.i., the outcome of which shall then be indorsed to the
SB for its appropriate action.
Test in appreciating a mtq
- When the ground relied upon is that the facts
charged do not constitute an offense, the
determinative test in appreciating a mtq is the
sufficiency of the averments in the information,
that is, whether the facts alleged, if
hypothetically admitted, would establish the
essential elements of the offense as defined by
the law without considering matters aliunde. An
information needs only to state the ultimate facts
constituting the offense, not the finer details of why
and how the illegal acts alleged amounted to undue
injury or damage – matters that are appropriate for
trial. The information, in other words, must allege
clearly and accurately the elements of the crime
charged. (Lazarte vs SB, GR 180122, March 13,
2009).
Effect of failure to assert any ground of a mtq
(1) The failure to assert any ground of a mtq before a
plea the complaint or information shall be deemed
a waiver of any objections. This failure to assert a
ground may either be because:
(a) The accused did not file a mtq; or
(b) The accused filed a mtq but failed to allege the
ground in said motion.
(2) Failure of the accused to interpose an objection on
the ground of duplicity of the offense charged in
the information constitutes waiver. (PP vs. Tabio,
544 SCRA 156, February 6, 2008).
Grounds not waived
- Although the rule is that those grounds not asserted
in the mtq are waived, the following objections are not
waived:
(a) that the facts charged do not constitute an
offense;
(b) that the court trying the case has no jurisdiction
over the offense charges;
(c) that the criminal action or liability has been
extinguished; and
(d) double jeopardy.
Denial of a MTQ
- The remedy is for the movant to proceed to trial
without prejudice to reiterating the special defenses
invoked in the mtq, unless, if the court in denying the
mtq acts without or in excess of jurisdiction or with
grave abuse of discretion, then certiorari or
prohibition lies. (Lazarte, supra).
When court shall order the amendment of the
information or complaint.
(1) The existence of a valid ground for sustaining a
mtq will not necessarily in the dismissal of the
information or complaint. If the mtq is based on
the alleged defect of the complaint or information,
and the defect can be cured, the court shall order
that an amendment be made. (Sec. 4).
If the motion is based on the ground that the facts
charged do not constitute an offense, the court
shall give the prosecution an opportunity to correct
the defect by amendment. However, if despite
such opportunity, the prosecution (a) fails to make
the amendment, or (b) if despite the amendment,
the complaint or information still suffers from the
same defect, the court shall grant the mtq. (Sec.
4).
Reason: Even if the information may be defective, the
dismissal of the case will not necessarily follow. The
prosecution should be given a chance to correct
the defect and the court can order the dismissal
only upon the prosecution’s failure to do so. It
would constitute an arbitrary exercise of power
correctible by certiorari if the trial court would not
provide the prosecution the opportunity to correct the
defect. (Go vs BSP, GR 178429, October 23, 2009).
Order sustaining a mtq is not a bar to another
prosecution; exceptions
(1) When a mtq is sustained, the court may order that
another complaint or information be filed unless
the ground relied upon is either (a) extinction of
the criminal liability, or (b) on the ground of dj as
provided in Sec. 6, Rule 117 (Sec. 5). This is
because an order sustaining a mtq is not a bar to
another prosecution for the same offense unless
based on the ground that the criminal action or
liability has been extinguished or there is double
jeopardy. (Sec. 6).
(2) If the order to file another complaint or information
is made, the accused who may be in custody, shall
not be discharged or released, except if he is
admitted to bail. If no order to file is made or if
such order is made but no new complaint or
information is filed within the time specified in the
order, the accused, if in custody shall be
discharged. He shall however, not be discharged if
he is in custody for another charge. (Sec. 5).
Double Jeopardy
(1) Sec. 21 of Art. III of the Constitution of the
Philippines emphasizes that:
“No person shall be twice put in jeopardy of
punishment for the same offense. If an act is
punished by a law or an ordinances, conviction or
acquittal under either shall constitute a bar to
another prosecution for the same.”
(2) The same essence of the constitutional provision is
specifically reiterated in the Rules of Court thus:
“xxx When an accused has been convicted or
acquitted, or the case against him dismissed or
otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge
sufficient in form and substance to sustain a
conviction and after the accused had pleaded to
the charge, the conviction or acquittal of the
accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or
for any attempt to commit the same or frustration
thereof, or for any offense which necessarily
includes or is necessarily included in the offense
charged in the former complaint or information.”
(Sec. 7).
(3) The constitutional provision against dj guarantees
that the state shall not be permitted to make
repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to
embarrassment, expense, and ordeal and
compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing that
possibility that even though innocent he may be
found guilty. (Co vs Lim, GR 164669-70, October
30, 2009).
Reason: The policy on dj is the concern that
permitting the sovereign freely to subject the citizen to
a second judgment for the same offense would arm
the government with a potent instrument for
oppression (Co vs Lim, ibid).
(4) DJ presupposes that a first jeopardy has already
attached prior to the second jeopardy and such
jeopardy has already been terminated either
because the accused has already been convicted,
or acquitted or the case against him has been
dismissed or terminated without his express
consent. If despite the termination of the first
jeopardy or danger, he is put in danger anew for
the same offense as in the first, then dj arises.
Effects of dj; on criminal and civil aspects
(1) When dj exists, “the conviction or acquittal of the
accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or
for any attempt to commit the same or frustration
thereof, or for any offense which necessarily
includes or is necessarily included in the offense
charged in the former complaint or information
(Section 7, Rule 117, RoC).
(2) Under the finality-of-acquittal doctrine, an
acquittal, whether ordered by the trial or appellate
court, is final and unappealable either through a
regular appeal under Rule 41 or an appeal by
certiorari on pure questions of law under Rule 45
of the RoC, on the ground of dj. The rationale
behind the rule is not only the accused already
established his innocence at the first trial where he
had been placed in peril of conviction, but also the
same untoward and prejudicial consequences of a
second trial initiated by a government who has
been given the complete opportunity to prove the
accused’s culpability, but failed to do so, will again
use another opportunity to persuade the second
trier of accused’s guilt while strengthening any
weaknesses that had attended the first trial, all in
a process where the government’s power and
resources are once again employed against the
accused’s individual means.
(3) The accused may appeal or move for
reconsideration from a judgment of conviction but
when the accused appeals or moved for
reconsideration from the sentence of the trial
court, he waives his right to the constitutional
safeguard against dj and throws the whole case
open to review by appellate court.
(4) The only exception is when the trial court acted
with gad or, when there was mistrial. In such
instance, the OSG can assail the said judgment in
a petition for certiorari establishing that the state
was deprived of a fair opportunity to prosecute and
prove its case. The petitioner in such an
extraordinary proceeding must clearly
demonstrate that the trial court blatantly
abused its authority to a point so grave as to
deprive it of its very power.
- The rationale behind this exception is that a
judgment rendered by the trial court with gad was
issued w/o jurisdiction, hence, void, and no dj
attached. (Castro vs. PP, GR 180832, July 23,
2008).
(5) Acquittal of the accused does not affect the right of
the offended party or the accused to appeal the
civil aspect of the case because the concept of dj
has reference only to a criminal case and has no
effect on the civil liability of the accused.
Requisites of DJ
(1) In order to successfully invoke dj, the following
requisites must be present, namely:
(a) a first jeopardy must have attached prior to the
second, which has the following elements:
1) that accused has been convicted or acquitted,
or the case against him was dismissed or
terminated without his express consent;
2) that the conviction, acquittal, or dismissal was
made by a court of competent jurisdiction;
3) there is a valid complaint or information or
other formal charge sufficient in form and
substance to sustain a conviction;
4) the accused has pleaded to the charge; and
5) the subsequent prosecution is for an offense
which is the same as the former complaint or
information or for any attempt of the same or
a frustration thereof, or for any offense which
necessarily includes or is necessarily included
in the offense charged in the former complaint
or information.
(b) the first jeopardy must have been validly
terminated; and
(c) the second involves the same offense or is
necessarily included in offense charged in the first
jeopardy.
(2) When the prosecution is deprived of a fair
opportunity to prosecute and prove its case or
where the trial was a sham, its right to due
process is thereby violated, in which courts are
thereby ousted of their jurisdiction, and decisions
rendered in disregard of that right is void for lack
of jurisdiction. Consequently, dj cannot be invoked
since the dismissal was not made by a competent
court.
P. investigation and Admin. cases, dj not
applicable
- It is well-settled that the dismissal of a case during
its p.i. stage does not constitute dj since a p.i. is not
part of the trial and is not the occasion for the full and
exhaustive display of the parties’ evidence. (Vincoy vs.
CA, 432 SCRA 36).
- Double jeopardy does not lie in administrative cases
since all the five requisites of first jeopardy are not
present. Significantly, there are three (3) remedies
available against a public officer for impropriety in the
performance of his powers and the discharge of his
duties: civil, criminal, and administrative. These
remedies may be invoked separately, alternately,
simultaneously, or successively.
Res judicata and dj (res judicata in prison grey)
- Res judicata is a doctrine of civil law and thus has no
bearing on criminal proceedings even if double
jeopardy has been described as “res judicata in prison
grey.”
Valid complaint or information
(1) For dj to be invoked, Sec. 7 of Rule 117 requires
that “there must be a valid complaint or
information or formal charge sufficient in form
and substance to sustain a conviction.”
- The sufficiency of the complaint or information or
the formal charge is dependent on whether the
same could sustain a conviction. If it could not
sustain the conviction desired, then the charge is
not a valid one which would preclude double
jeopardy.
(2) A complaint or information may not be considered
valid if it does contain the basic requisites for the
sufficiency of a complaint as it would not be
sufficient in form and substance to sustain a
conviction.
(3) It is submitted that the charges are not to be
deemed valid because conviction will not be
possible where the formal charges for adultery and
concubinage are not subscribed by the offended
party but by the public prosecutor. Also, unless
the offended party dies or becomes incapacitated
and she has no known parents, gp, or guardian, a
public prosecutor cannot subscribe to or sign the
formal charge for seduction, abduction, and acts of
lasciviousness.
(4) Where the officer who filed the information has no
authority to do so, the information is indeed
defective and could not sustain a conviction and
the court does not acquire jurisdiction thereto.
Accused should have pleaded to the charge
(1) It is settled that the accused should have been
arraigned and had validly pleaded to the charge in
order for dj to attach.
(2) In the case of PP vs Magat, where the accused pg
but bargained for a lesser penalty which the trial
court imposed 10 years of imprisonment for each
count of rape, but when revived upon the instance
of the complainant on the ground that the penalty
is too light, the trial court, after being satisfied of
accused’s voluntariness of his pg, rendered a
judgment of conviction and imposed death penalty.
On appeal, the accused-appellant contends that dj
attached as when he previously entered a plea of
guilty for a lesser penalty, and later, the court
changed such penalty. The Court disagreed, as the
order of the trial court convicting the accused-
appellant on his own plea of guilty and sentencing
him to a light penalty was void ab initio on the
basis that accused-appellant’s plea was not the
plea bargaining contemplated and allowed by
law and the rules of procedure. The only
instance where a plea bargaining is allowed under
the Rules is when an accused pleads guilty to a
lesser offense. Here, the reduction of the penalty
is only a consequence of the plea of guilty to a
lesser penalty.It is the essence of a plea of guilty
that the accused admits absolutely and
unconditionally his guilt and responsibility for
the offense imputed to him. In the case of
Magat, accused-appellant’s plea of guilty was a
conditional plea. Since it was a conditional plea,
the trial court should have vacated such a plea and
entered a plea of not guilty and which would
require a full-blown trial before judgment may be
rendered. Since the plea is void, the judgment
rendered against the accused is also void, thus, dj
will not lie.
Note: In Magat, the accused was re-arraigned and he
entered a new plea, thus correcting the procedural
infirmity.
The accused has been convicted or acquitted, or
the case against him dismissed or terminated
without his express consent
Dismissal or termination must be without the
express consent of the accused
(1) For the accused to invoke dj, it must be shown
that in the prior charge, he had been either
convicted or acquitted. He may also show that the
case against him had been dismissed or terminated
without his express consent. (Sec. 7, Rule 117,
RoC). In other words, the rule contemplates that
the first jeopardy had been validly terminated and
 because of such termination, the accused could no
longer be exposed to another jeopardy.
(2) Thus, the mere filing of two informations or
complaints charging the same offense does not yet
afford the accused in those cases the occasion to
complain that he is being placed in jeopardy twice
for the same offense, for the simple reason that
there is no decree of “conviction, acquittal, or
dismissal without his consent” that is yet rendered
in any of the two cases. It is the conviction or
acquittal or termination of the case without
his consent that bars further prosecution for
the same offense or any attempt or
frustration to commit the same, or for any
offense which necessarily includes in the
former complaint or information.
(3) Also, if the accused moves for the dismissal of the
case due to lack of jurisdiction or insufficiency of
the information to sustain a conviction, and the
same was indeed dismisses, the dismissal is with
the express consent of the accused and cannot be
the basis for a claim of dj. The motion by the
accused which indicates express consent operates
as a waiver of his constitutional right against dj for
the reason that he effectively prevents the trial
court from proceeding to trial on the merits and
rendering a judgment of conviction against him.
Exception: If the dismissal was predicated on the
unreasonable delay in the proceedings in violation
of the accused’s right to speedy trial, dj may
attach even if the dismissal of the case was with
the consent of the accused.
(4) The consent that would preclude another
prosecution in order to be deemed an express
one should be “positive, direct, unequivocal,
and requiring no inference or implication to
supply its meaning.”
(5) In the case of Andress vs Cacdac, the Court
explained that “When a criminal case is dismissed
upon the application and express consent of
the accused and his counsel, the dismissal is
not a bar to another prosecution for the same
offense because his action in having the case
dismissed constitutes a waiver of his constitutional
prerogative against dj as he thereby prevents the
court from proceeding to the trial on the merits
and rendering judgment of conviction against him.”
Dismissals equivalent to acquittal even witht the
consent of the accused; speedy trial; demurrer to
evidence
(1) Double jeopardy will apply even if the dismissal is
made with the express consent of the accused, or
upon his own motion, only if it is predicated on
either of two grounds:
(a) Denial of the right to speedy trial
- A dismissal based on a violation of the right to
speedy trial is equivalent to an acquittal. A waiver of
a dj will not apply even if the accused expressly moved
for the termination of the proceedings. If the dismissal
was predicated on the unreasonable delay in the
proceedings in violation of the accused’s right to
speedy trial, dj may attach even if the dismissal of the
case was with the consent of the accused. (Condrada
vs PP, 398 SCRA 482).
- The dismissal of a criminal case upon motion of tha
accused because the prosecution was not prepare for
trial since the complainant and his witnesses did not
appear at the trial is a dismissal equivalent to an
acquittal that would bar further prosecution of the
defendant for the same offense. The use of the word
“provisional´would not change the legal effect of the
dismissal.
- It was thus held that if the acused wants to exercise
his constitutional right to a speedy trial, he should not
ask for the dismissal, but ask for the trial of the case.
After the prosecution’s motion for postponement of
trial is denied and upon order of the court the fiscal
does not or cannot produce his evidence and,
consequently, fails to prove the defendant’s guilt, the
court upon defendant’s motion shall dismiss the case,
such dismissal amounting to an acquittal of the
defendant. (Andres vs Dacdac, L-45650. 1982).
- The discharge of an accused to be a state witness
shall amount to an acquittal and shall be a bar to a
future prosecution for the same offense, unless the
accused fails or refuses to testify against his co-
accused in accordance with his sworn statemenmt
constituting the basis for his discharge. (Rule 119).
(b) Insufficiency of the evidence (Demurrer)
- When the court grants a demurrer to evidence on the
ground of insufficiency of evidence, the dismissal
amounts to an acquittal.
- The demurrer to evidence in criminal cases, is “filed
after the prosecution had rested its case,” and when
the same is granted, it calls “for an appreciation of the
evidence adduced by the prosecution and its
sufficiency to warrant conviction beyond reasonable
doubt, resulting in a dismissal of the case on the
merits, tantamount to an acquittal of the
accused.” Such dismissal of a criminal case by the
grant of demurrer to evidence may not be appealed,
for to do so would be to place tha ccused in dj. The
verdict beong one of acquittal, the case ends there.
(PP vs SB, 164577, July 5, 2010).
Double jeopardy in quasi offenses
- In the cases of Ivler vs Modesto-San Pedro and
PP vs Buan, SC reasoned that once convicted or
acquitted of a specific act of reckless imprudence, the
accused may not be prosecuted again for that same
act. For the essence of the quasi offense of criminal
negligence under Art. 365 of the RPC lies in the
execution of an imprudent or negligent act that, if
intentionally done, would be punishable as a felony.
The law penalizes thus the negligent or careless
act, not the result thereof. The gravity of the
consequence is only taken into account to determine
the penalty, it does not qualify the substance of the
offense. And, as the careless act is single, whether the
injurious result should affect one person or several
persons, the offense remains one and the same, and
can not be split into different crimes and prosecutions.
Double jeopardy shall not apply despite a prior
conviction
- As a general rule, the rule on dj precludes another
prosecution “for any attempt to commit the same or
frustration thereof, or for any offense which
necessarily includes or is necessarily included in the
offense charged.”
- Section 7 of Rule 117 provides for the exception
which provides that the conviction of the accused shall
not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the
former complaint or information under any of the
following instances:
(a) the graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge;
(b) the facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information; or
(c) the plea os guilty to lesser offense was made
without the consent of the prosecutior and of the
offended party except as otherwise provided in
Section 1(f) of Rule 116.
In any of the foregoing cases, where the accused
satisfies or serves in whole or in part the judgment, he
shall be credited with the same in the event of
conviction for the graver offense.
Meaning of the same offense; when not the same
- Same offense means the offense charged, or an
attempt to commit it or a frustrated stage thereof, or
“any offense which necessarily includes or is
necessarily included in the offense charged in the
former complaint or information.”
- Two or more offenses arising from the same act are
not the same if one provision of law requires proof of
an additional fact or element which the other does not.
Elsewise stated, where two different laws or articles of
the same code define two crimes, prior jeopardy as to
one of them is no obstacle to a prosectuiton of the
other, although both offenses arise from the same
facts, if each crime involves some important act which
is not an essential element of the other.
- In Suero vs People, the Court stresses that the
constitutional right against dj protects from a second
prosecution for the same offense, not for a different
one. Thus, even if the case arose out of the same
incident or transaction, the dismissal of one case would
not constitute dj against the accused in the other case
if the quantum of evidence required to sustain both
cases are not similar.
Provisional dismissal
- The concept of provisional dismissal contemplates
that the dismissal of the criminal action is not
permanent and can be revived within the period set by
the Rules of Court.
- The new rule was conceptualized by the Committee
on the Revision of the Rules and approved by the
Court en banc primarily to enhance the administration
of the cjs and the rights to due process of the State
and the accused by eliminating the deleterious practice
of trial courts of provisionally dismissing criminal caes
on motion of either the prosecution or the accused or
jointly, either with no time-bar for the revival thereof
or with a specific period for such revival by the public
prosecutor. There were times that such criminal cases
were no longer revived or refilled due to some causes
to the prejudice of the State and the accused despite
the mandate to public prosecutors and trial judges to
expedite criminal proceedings.
- The inordinate delay in the revival or refilling of
criminal cases may impair or reduce the capacity of the
State to prove its case with disappearance or non-
availability of its witnesses. Memories of witnesses
may have grown dim or have faded. Passage of time
makes proof of any fact more difficult. The longer the
lapse of time from the dismissal fo the case to the
revival thereof, the more difficult it is to prove the
crime.
- Section 8 of Rule 117 is divided into two parts; the
first refers to the requirements before the second part,
the time-bar shall be operate. Thus, if the express
consent of the accused or without notice to the
offended party, the case may be revived even after the
periods stated in the second paragraph of Sec. 8,
subject to the defense of prescription or the defense of
dj if applicable under the circumstances.
- Thus, within the periods set forth by Section 8, Rule
117, the prosecution has to revive the case if it desires
to prevent the provisional dismissal becoming
permanent and the revival of the case being time-
barred.
- The time-bar does not reduce the periods under Art.
90 of the RPC (prescription of crimes), a substantive
law. It is but a limitation of the right of the State
to revive a criminal case against the accused after
the Information had been filed but subsequently
provisionally dismissed with the express consent of the
accused. Upon the lapse of the timeline under the new
rule, the State is presumed, albeit disputably, to have
abandoned or waived its right to revive the case and
prosecute the accused. Th dismissal becomes ipso
facto permanent.
- The State may revive a criminal case beyond the
one-year or two-year periods provided tha there is a
justifiable necessity for the delay. (PP vs Lacson,
149453, April 1, 2003).
Effect of People vs Lacson
(1) It interpreted and in effect expanded the requisites
under Sec. 8, Rule 117 of the RoC. Accordingly,
the following requirements are conditions sine qua
non for the application of the time-bar rule:
 (a) the prosecution with the express conformity of
the accused or the accused moves for a
provisional dismissal fo the case, or both the
prosecution and the accused move for a
provisional dismissal of the case;
(b) the offended party is notified of the motion for
a provisional dismissal of the case;
(c) the court issues an order granting the motion
and dismissing the case provisionally;
Reason: The reason for the requirement of the
express consent of the accused to a provisional
dismissal of a criminal case is to bar him from
subsequently asserting that the revival of the criminal
case will place him in dj for the same offense or for an
offense necessarily included therein.
impair, reduce, and diminish the State’s
substantive right to prosecute the accused.
Withdrawal of Information vs Motion to Dismiss
- While it is true that both put an end to an action filed
in court, their legal effect varies, namely:
(1) The order granting the w.i. attains finality after
fifteen (15) days from receipt thereof, without
prejudice to the re-filing of the information upon
reinvestigation;
whereas, the order granting a m.d. becomes final
fifteen (15) after receipt thereof, with prejudice
to the re-filing of the same case once such order
achieves finality.

(2) Said case also ruled that although the second (2) A m.w is not time-barred and does not fall within
paragraph of the new rule states that the order of the ambit of Sec. 8, RRoC Procedure;
dismissal shall become permanent one year after
the issuance thereof without the case having been whereas, a m.d. when filed thus puts into place
revived, the provision should be construed to mean the time-bar rule on provisional dismissal because
that the order of dismissal shall become what Sec. 8 of Rule 117 contemplates is the filing
permanent one year after service of the order of a motion to dismiss, and not a motion to
of dismissal on the public prosecutor who has withdraw information.
control of the prosecution without the criminal case
having been revived. The public prosecutor cannot
be expected to comply with the timeline unless he
is served with a copy of the order of dismissal.

(3) Express consent to a provisional dismissal is given

either viva voce or in writing. It is a positive,
direct, unequivocal consent requiring no inference
or implication to supply its meaning. However,
the mere inaction or silence of the accused to a
motion for a provisional dismissal does not amount
to express consent.

(4) As a general rule, the case may be revived by the

State within the time-bar either by refiling of the
information or by the filing of a new information
for the same offense or an offense necessarily
included therein. There would be no need of a
new p.investigation. Exceptions to the above
rule are the ff:
(a) If after the provisional dismissal, the original
witnesses becomes unavailable, recanted their
testimonies, or may have died;
(b) If other persons are charged under a new
criminal complaint;
(c) If the original charge has been upgraded; or
(d) If the criminal liability has been upgraded from
accessory to principal;

- With the foregoing, it is logical for the accused to

be given an opportunity and the right to submit
counter-affidavits and evidence.

(5) Section 8 of Rule 117 of the RRoC Procedure

should be applied prospectively and not
retroactively against the State. To apply the time
limit retroactively to the criminal cases against the
respondent and his co-accused would violate the
right of the People to due process, and unduly
The right to defend himself; right to be heard
(1) An accused is accorded the right to defend himself
either in person or by counsel. As a consequence
of such rights, he has the right to be present at the
trial at every stage of the proceedings from
arraignment to the promulgation of the judgment.
(Sec. 1 [c], Rule 115, RoC).
- Upon motion, the accused may be allowed by the
court to defend himself in person when it sufficiently
appears to the court that he can properly protect his
rights without the assistance of counsel.
(2) Pursuant to the stipulations set forth in his bail, the
accused has the right to waive his presence at the
trial but he shall be required to be at the trial, if
his presence is specifically ordered by the court for
purposes of identification. (ibid).
(3) The waiver of the right of the accused to be
present at the trial may be inferred from his
absence without justifiable cause provided he had
prior notice of the said trial. (supra).
(4) In case the accused is under custody and he
escapes, his act shall be deemed to be a waiver to
be present on all subsequent trial dates until
custody over him is regained. (supra).
(5) If the accused is absent during the trial after his
arraignment, trial may proceed despite his absence
provided that he has been duly notified of the trial
and his failure is unjustified. (Sec. 14 [2], Art. III,
1987 Constitution);
(6) When the accused filed a motion for leave to file a
demurrer to evidence which was granted by the
trial court, and the demurrer was eventually
denied, the trial court should give the accused the
accused the opportunity to present his evidence.
To be denied the opportunity to be heard is
procedurally unfair and a miscarriage of justice.
(PP vs Alcanzado, 428 SCRA 681). Note that Sec.
23 of Rule 119 provides that, “If the court denies
the demurrer to evidence filed with leave of court,
the accused may adduce evidence in his defense.”
The right to testify as a witness
(1) The accused has the right to testify as a witness in
his own behalf but subject to cross-examination on
matters covered by the direct examination (Sec.
1[d], Rule 115, RoC).
(2) The questions that may be asked of the accused in
a c/e is limited to the matters covered by the d/e.
This is in contrast to the much wider scope of the
c/e of an ordinary witness. Under Section 6 of
Rule 132, the witness may be cross-examined by
the adverse party not only as to any matter stated
in d/e or those connected with the matters stated
in the d/e but the cross-examiner is given
“sufficient fullness and freedom” to ask
questions that would test the accuracy and
truthfulness of the witness, his freedom from
interest or bias, or the reverse. The witness may
even be asked questions for the purpose of
eliciting all important facts bearing upon the issue
even if they were not covered by his d/e as long
as the question has relevance to the issues of the
case.
(3) If the accused does not want to testify in his behalf
and choses to remain silent, his silence “shall not
in any manner prejudice him.” (Sec. 1 [d], ibid).
The right to confront and cross-examine the
witnesses against him
- The right to confront the witnesses against him and
c/e them are basic constitutional rights embodied in
Sec. 14 (2) of Art. III of the Philippine Constitution.
- The c/e of a witness is essential to test his accuracy,
expose falsehoods of half-truths, uncover the truth
which rehearsed d/e testimonies may successfully
suppress, and demonstrate inconsistencies in
substantial matters which create reasonable doubt as
to the guilt of the accused and thus give substance to
the constitutional right of the accused to confront the
witnesses against him. (PP vs Ortillas, 428 SCRA 659).
- The right of a party to confront and c/e opposing
witnesses in a judicial litigation, be it criminal or civil in
nature, or in proceedings before administrative
tribunals with qj powers, is a fundamental right
which is part of due process. Nonetheless, the right is
a personal right which may be waived expressly or
impliedly by conduct amounting to a renunciation of
the right to cross-examination. Thus, it was held that
where a party has had the opportunity to c/e a witness
but failed to avail himself of it, he necessarily forfeits
the right to c/e and the testimony given on d/e of the
witness will be received or allowed to remain in the
record.
- Under the Rules, the right to confrontation does not
apply in a p.i. The investigating officer during p.i. may
set a hearing if there are facts and issues to be
clarified from a party or witness. However, while the
parties are allowed to be present at the hearing, they
are “without the right to examine or c/e. They may,
however, submit to the investigating officer questions
which may be asked to the party or witness
concerned.”
- Generally, where the adverse party is deprived of the
right to c/e the persons who executed the affidavits,
said affidavits are rejected for being mere hearsay.
(Estrella vs Robles, 538 SCRA 60).
- If one is deprived of the opportunity to c/e without
fault on his part, it is generally held that he is entitled
to have the d/e stricken from the record. (PP vs
Señeris, 99 SCRA 92).
Right to use testimony of a deceased witness
- Either party, may utilize as part of its evidence the
testimony of a witness who is deceased, out of or
cannot with due diligence be found in the Philippines,
unavailable or otherwise unable to testify, given in
another case or proceeding, judicial or administrative,
provided they involved the same parties and subject
matter and the adverse party had the opportunity to
c/e him. (Sec. 1[f], Rule 115, Rules of Court).

Right to compulsory process

- This right may be invoked by the accused to secure
the attendance of witnesses and the production of
witnesses in his behalf. This is a constitutional right
embodied in Sec. 14 (2), Art. III of the Constitution.

- In connection with this right, the accused may move

the court for the issuance of a subpoena ad
testificandum or a subpoena duces tecum.

- In case of unjustified failure of the witness to comply,

the court or judge issuing the subpoena, (a) upon
proof of the service of such subpoena and (b) proof of
his failure to attend, may issue a warrant for his
arrest. (Sec. 8, Rule 21, RoC).

Right to appeal
- In all criminal prosecutions, the accused shall have
the right to appeal in the manner prescribed by law.
(Hilario vs PP, 551 SCRA 191).

- An appeal in a criminal case opens the entire case for

review and the appellate court may correct even
unassigned errors. In contrast, in a civil case, as a
rule, an unassigned will not be considered by the
appellate court unless such error affects:
(a) the jurisdiction of the court;
(b) affects the validity of the judgment appealed from;
(c) the error is closely related to or dependent upon
the assigned error properly argued in the brief; or
(d) when the error is simply plain or clerical.

- An established rule in appellate review is that the

trial court’s findings, its assessment of the credibility of
the witnesses and the probative weight of their
testimonies, as well as the conclusions drawn from the
actual findings, are accorded respect, if not conclusive
effect unless there appears in the record some facts
or circumstances of weight and influence which have
been overlooked and, if considered, would affect the
result. (PP vs Sison, 555 SCRA 156).