Motion to Quash

Question 1

What is the nature of a Motion to Quash?

Answer 1

1. Mode by which an accused assails the validity of a criminal complaint or information filed against him for insufficiency on its face in point of law or defects which are apparent in the face of the information [Riano 328, 2011 Ed.]
2. Hypothetical admission of the facts alleged in the information

Note: Fundamental test in determining sufficiency of the material averments in an information: WON the facts alleged which are hypothetically admitted would establish the essential elements of the crime defined by law.

3. Evidence aliunde or matters extrinsic of the information are not to be considered. EXCEPT when admissions made by the prosecution [People v. Dela Rosa, G.R. No. L-34112 (1980)],

Note: A motion to quash based on double jeopardy or extinction of the criminal action or liability, may, by their nature, be based on matters outside of the allegations of the information or complaint [Riano]

Question 2

What is the fundamental test in determining the sufficiency of the mterial averments in an information?

Answer 2

Note: Fundamental test in determining sufficiency of the material averments in an information: WON the facts alleged which are hypothetically admitted would establish the essential elements of the crime defined by law.

Question 3

What are the required form and content of a Motion to Quash?

Answer 3

1. In writing
2. Signed by the accused or his counsel, and
3. Distinctly specify the factual and legal grounds [Sec. 2, Rule 117]

Question 4

When may a Motion to Quash be filed?

Answer 4

General rule: At any time before entering his plea, the accused may move to quash the complaint or information [Sec. 1, Rule 117]

Exception: When the grounds relied upon the motion are:

1. Failure to charge an offense
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or penalty
4. Accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged

Question 5

What are the exceptions to the general rule that ‘an accused may move to quash the complaint or information at any time before entering his plea’?

Answer 5

Exception:

When the grounds relied upon the motion are:

1. Failure to charge an offense
2. Lack of jurisdiction over the offense charged
3. Extinction of the offense or penalty
4. Accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged

They shall not be deemed waived if the accused failed to file MTQ or to allege them in the motion. [Sec. 9, Rule 117]

Question 6

Is a judge required to first resolve the Motion to Quash before issuing a warrant of arrest?

Answer 6

NO.

The judge had no positive duty to first resolve the MTQ before issuing a warrant of arrest. Sec. 5(a), Rule 112 required the judge to evaluate the prosecutor’s resolution and its supporting evidence within a limited period of only 10 days [De Lima v. Guerrero, G.R. No. 229781 (2017)]

Question 7

What are the grounds for a Motion to Quash (in general)?

Answer 7

a. Facts charged do not constitute an offense;
b. Court trying the case has no jurisdiction over the offense charged;
c. Court trying the case has no jurisdiction over the person of the accused;
d. officer who filed the information had no authority to do so;
e. The information does not conform substantially to the prescribed form;
f. More than one offense is charged, except when a single punishment for various offenses is prescribed by law;
g. Criminal action or liability has been extinguished; h. Averments which, if true, would constitute a legal excuse or justification;
i. 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

[Sec. 3, Rule 117]

The following grounds are exclusive. [Galzote v. People, G.R. No. 164682 (2011)]

Question 8

What is the general rule re the effect of the failure of the accused to assert any ground on a MTQ before he pleads? What are the exeptions?

Answer 8

General rule: Failure of the accused to assert any ground on a MTQ before he pleads, either because he did not file MTQ or failed to allege said ground in the MTQ shall be deemed a waiver of any objections

Exceptions:

a. Facts charged do not constitute an offense
b. Court trying the case has no jurisdiction over the offense charged
c. Criminal action or liability has been extinguished

d. Accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged
[Sec. 9, Rule 117]

e. Officer who filed information had no authority to do so [Quisay v. People, G.R. No. 216920 (2016)]

Question 9

When is Motion to Quash allowed in cases coverd by the Rules on Summary Procedure?

Answer 9

In cases covered by the Rules on Summary Procedure, MTQ is allowed only if made on the grounds of lack of jurisdiction over the subject matter or failure to comply with barangay conciliation proceedings [Sec. 19, Rules on Summary Procedure]

Question 10

What is the effect when the information does not charge an offense?

Answer 10

Where it is clear that the information does not really charge an offense, the case against the accused must be dropped immediately [Dela Chica v. Sandiganbayan, G.R. No. 144823 (2003)]

That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion, G.R. No. 80066 (1988)]

Question 11

What is the test in determining whether the information charges an offense?

Answer 11

The test is whether the facts alleged, if hypothetically admitted, would establish the essential elements of the offense, as defined by law without considering matters aliunde [People v. Romualdez, G.R. No. 166510 (2008)]

That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion, G.R. No. 80066 (1988)]

Question 12

is the defect of ‘information not charging an offense’ cured by the failure to move to quash or by a plea of guilty?

Answer 12

NO.

That the missing element may be proved during the trial or that the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People v. Asuncion, G.R. No. 80066 (1988)]

Question 13

When MTQ is based on the ground that the facts charged do not constitute an offense, can the prosecution be given an opportunity to correct the defect by amendment?

Answer 13

YES.

If a MTQ is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment [Sec. 4, Rule 117]

Question 14

FIB

In a criminal prosecution, the ____________________ not only determines venue, but is an essential element of jurisdiction [Sec. 15, Rule 110; Lopez v. City Judge, G.R. No. L-25795 (1966)]

Answer 14

place where the offense was committed

Question 15

FIB

In private crimes, the __________ of the offended party is necessary to confer authority to the court [DonioTeves v. Vamenta Jr., G.R. No. L-38308 (1984)]

Answer 15

complaint

Question 16

What is the limitation when the accused files a Motion to Quash based on the ground that the Court has no jurisdiction over the person of the accused?

Answer 16

When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person

When the objection is raised, the court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead v. Argel, G.R. No. L-41958 (1982)]

Question 17

Who has authority to file and prosecute criminal cases?

Answer 17

1. Prosecutor
2. Any peace officer, or public officer charged with the enforcement of the law, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available
   [Sec. 5, Rule 110]
3. Commission on Elections regarding violations of election laws [Sec. 2(6), Art. IX-C, Constitution]

Question 18

Should the prosecutor who signed the information have territorial jurisdiction to conduct PI?

Answer 18

YES.

The prosecutor who signed the information must have territorial jurisdiction to conduct PI of the offense [Cudia v. CA, G.R. No. 110315 (1998)]

Question 19

Who may conduct prelimnary investigations?

Answer 19

1. Provincial or City Prosecutors and their assistants;
2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law [Sec. 2, Rule 112, as amended by A.M. No. 05-8-26SC]

Question 20

What is required for a complaint or information be filed or dismissed by an investigating prosecutor?

Answer 20

Prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.

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 or his deputy [Sec. 4, Rule 112]

Question 21

Informations filed in the Sandiganbayan requires the signature and approval of whom?

Answer 21

a graft investigating officer
with
prior approval of the Ombudsman

An information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman.

Question 22

Informations for election offenses must be signed by whom?

Answer 22

duly deputized prosecutors and legal officers of the COMELEC.

For election offenses, it must be signed by the duly deputized prosecutors and legal officers of the COMELEC [Sec. 265, Art. XXII, Omnibus Election Code]

Question 23

Can lack of authority of an officer be cured by silence, acqueiscence, express consent, or amendment (information)?

Answer 23

NO.

Lack of authority of the officer is not cured by silence, acquiescence, express consent or even by amendment. [Cudia v. CA, G.R. No. 110315 (1998)]

Question 24

What are the formal and substantial requirements of a complaint or information?

Answer 24

Secs. 6-12, Rule 110.

Section 6. Sufficiency of complaint or information. — A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a)

Section 7. Name of the accused. — The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown.

If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. (7a)

Section 8. Designation of the offense. — The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (8a)

Section 9. Cause of the accusation. — The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (9a)

Section 10. Place of commission of the offense. — The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of the essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense or is necessary for its identification. (10a)

Section 11. Date of commission of the offense. — It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. (11a)

Section 12. Name of the offended party. — The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name.

(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged.
(b) If the true name of the of the person against whom or against whose properly the offense was committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information and the record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law. (12a)

Question 25

What is the general rule re the effect of a lack of substantial compliance of a complaint or information?

Answer 25

General rule: Lack of substantial compliance renders the accusatory pleading nugatory.

Exception: Mere defects in matter of form may be cured by amendment [Sec. 4, Rule 117]

Question 26

What are exceptions to the rule that ‘lack of substantial compliance renders the accusatory pleading nugatory?’

Answer 26

Exception: Mere defects in matter of form may be cured by amendment [Sec. 4, Rule 117]

Question 27

When are objections to complaint or information deemed waived?

Answer 27

Not raised

Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia, G.R. No. 120093 (1997)]

Question 28

Are vague or broad allegations grounds for a Motion to Quash?

Answer 28

Generally NO.

Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Sec. 9, Rule 116; Enrile v. People, G.R. No. 213455 (2015)]

Question 29

What is the correct remedy for vague or broad allegations?

Answer 29

Bill of Particulars

Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Sec. 9, Rule 116; Enrile v. People, G.R. No. 213455 (2015)]

The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired [Sec. 9, Rule 116]

Question 30

What is the general rule re how may offense can be charged in a complaint or information? What are the exceptions?

Answer 30

General rule: A complaint or information must charge only one offense [Sec. 13, Rule 110]

Exceptions:

1. When the law prescribes a single punishment for various offenses [Sec. 13, Rule 110]
2. Complex and compound crimes, except where one offense was committed to conceal another
3. An offense incidental to the gravamen of the offense charged
4. A specific crime set forth in various counts, each of which may constitute a distinct offense

Question 31

What are the exceptions to the rule that ‘a complaint or information must charge only one offense?’

Answer 31

Exceptions:

1. When the law prescribes a single punishment for various offenses [Sec. 13, Rule 110]
2. Complex and compound crimes, except where one offense was committed to conceal another
3. An offense incidental to the gravamen of the offense charged
4. A specific crime set forth in various counts, each of which may constitute a distinct offense

Question 32

Is the Motion to Quash ground of ‘more than one offense is charged’ waivable?

Answer 32

YES.

However, this ground is waivable. The accused may be convicted of all the offenses alleged and proved if he goes to trial without objecting to the inclusion of two or more separate offenses in the same information [People v. Villamor, G.R. No. 124441 (1998)]

Question 33

When is criminal liability extinguished?

Answer 33

1. Death of the accused, but liability for pecuniary penalties is extinguished only if death occurs before final judgment;
2. Service of sentence, which must be by virtue of a final judgment and in the form prescribed by law;
3. Amnesty;
4. Absolute pardon;
5. Prescription of the crime;
6. Prescription of the penalty;
7. Pardon in private offenses [Art. 89, Revised Penal Code]

Question 34

What kind of right is the protection from prosecution under a statute of limitations?

Answer 34

Substantive right

Protection from prosecution under a statute of limitation is a substantive right. Where the statute fixes a period of limitation as to a prosecution for a particular offense, the limitation so fixed is jurisdictional, and the time within which the offense is committed is a jurisdictional fact, it being necessary that the indictment or information be actually filed within the time prescribed [People v. Sandiganbayan, G.R. No. 101724 (1992)]

Question 35

What are examples the Motion to Quash ground or ‘contains averments that if true would constitute a legal excuse or justification’?

Answer 35

Examples:

1. Justifying circumstances [Art. 11, RPC]
2. Exempting circumstances [Art. 12, RPC]
3. Absolutory causes

Question 36

When does dismissal of case constiture acquittal?

Answer 36

Dismissal constitutes acquittal when it is granted:

1. Upon demurrer to evidence; [Riano 439, 2016 Ed., citing People v.Tan, G.R. No. 167526 (2010)]
2. Due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent) [Riano 439-440, 2016 Ed., citing Andres v. Cacdac, G.R. No. L-45650 (1982)]

Question 37

Does the dismissal of a criminal case resulting in an acquittal made with the express consent of the accused place the accused in double jeopardy?

Answer 37

NO.

Except in the ff. cases:

i. Insufficiency of the prosecution’s evidence
ii. Denial of the right to a speedy trial

[Almario v. CA, G.R. No. 127772 (2001)]

The dismissal of a criminal case resulting in acquittal made with the express consent of the accused or upon his own motion will not place the accused in double jeopardy, except in the following cases:

i. Insufficiency of the prosecution’s evidence
ii. Denial of the right to a speedy trial [Almario v. CA, G.R. No. 127772 (2001)]

Question 38

What is the difference bet. Dismissal and Acquittal?

Answer 38

Dismissal:

• Does not decide the case on the merits.
• Does not determine innocence or guilt
• Double jeopardy will not always attach

Acquittal:

• Always based on the merits. -Defendant’s guilt was not proven beyond reasonable doubt
• Double jeopardy always attaches

Question 39

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to when they are filed?

Answer 39

Motion to Quash:
Filed before entering plea [Sec. 1, Rule 117]

Demurrer to Evidence:
Filed after the
prosecution has rested its case
[Sec. 23, Rule 119]

Question 40

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to the basis for grant or denial?

Answer 40

Motion to Quash:
Does not go into the merits of the case

Demurrer to Evidence:
Based upon the insufficiency of the evidence adduced by the prosecution [Sec. 23, Rule 119]

Question 41

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to grounds?

Answer 41

Motion to Quash:
Grounds are stated in Sec. 3 , Rule 117

Demurrer to Evidence:
Ground is “insufficiency of evidence” to convict [Sec. 23, Rule 119]

Section 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds:

(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (3a)

Question 42

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to requirement of leave of court?

Answer 42

Motion to Quash:
Does not require a prior leave of court [Sec. 1, Rule 117]

Demurrer to Evidence:
May be filed either with leave or without leave of court [Sec. 23, Rule 119]

Question 43

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to the effect of grant?

Answer 43

Motion to Quash:
Grant does not
necessarily result in a dismissal
(Court may order the filing of a new complaint or information) [Sec. 4, Rule 117]

Demurrer to Evidence:
Grant is deemed
an acquittal and would preclude the filing of another information or appeal by the prosecution

Question 44

What is the difference bet. a Motion to Quash and a Demurrer to Evidence as to remedy?

Answer 44

Motion to Quash:
If the court, in denying the motion to quash acts with grave abuse of discretion, then certiorari or prohibition lies

Demurrer to Evidence:
The order denying the motion for leave to file a demurrer “shall not be reviewable by appeal or by certiorari before judgment” If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer is filed without leave, the accused waives the right to present evidence and submits the case for judgment [Sec. 23, Rule 119]

Question 45

What are the possible effects of sustaining the Motion to Quash?

Answer 45

a. filing of another complaint or information

b. discharge of the accuses

Question 46

What is the general rule on the filing of anothe complaint or information as effects of sustaining the Motion to Quash? What are the exceptions?

Answer 46

General rule: Court may order that another complaint or information be filed [Sec. 5, Rule 117)

Exception: If MTQ was based on the following:

1. Criminal action or liability has been extinguished
2. Double jeopardy.

Question 47

What is the general rule on the discharge of the accused as effect of sustaining the Motion to Quash? What is the exception?

Answer 47

General rule: If in custody, the accused shall not be discharged unless admitted to bail [Sec. 5, Rule 117] The order granting the MTQ must state either release of the accused or cancellation of his bond.

Exception: The accused, if in custody, shall be discharged if:
1. No order is made; or

2. Having been made, no new information is filed within
   i. The time specified in the order; or
   ii. Such further time as the court may allow for good cause
   [Sec. 5, Rule 117]

Exception to the exception: The accused shall not be discharged if he is in custody for another charge [Sec. 5, Rule 117]

Question 48

What are the remedies of the prosecution when Motion to Quash is sustained?

Answer 48

General rule: The court shall order that an amendment be made:

1. If the MTQ is based on an alleged defect of the complaint or information which can be cured by amendment
2. If the MTQ is based on the ground that the facts charged do not constitute an offense
   [Sec. 4, Rule 117]

Exception: Prosecution is precluded where the ground for quashal would bar another prosecution for the same offense.

The prosecution may appeal from the order of quashal to the appellate court.

If the information was quashed because it did not allege the elements of the offense charged, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ [People v. Purisima, G.R. No. L-42050-66 (1978)]

Question 49

What is the difference bet. an order denying and granting MTQ re. their nature?

Answer 49

Order denying MTQ:
Interlocutory

Order granting MTQ:
Final Order

Question 50

What is the difference bet. an order denying and granting MTQ re. appealability?

Answer 50

Order denying MTQ:
Not appealable absent a showing of GAD. If there is GAD, then file petition for certiorari

Order granting MTQ:
Immediately appealable but subject to rules on double jeopardy

Question 51

What is the difference bet. an order denying and granting MTQ re. proper remedy?

Answer 51

Order denying MTQ:
Proper remedy: appeal after the trial

Order grantin MTQ:
Proper remedy: appeal the order

Question 52

What is the difference bet. an order denying and granting MTQ re. consequence?

Answer 52

Order denying MTQ:
Consequence: Arraignment

Order granting MTQ:
Consequence: Amend information if
possible

Question 53

What is the remedy for an order denying a Motion to Quash?

Answer 53

The remedy for an order denying a MTQ is to go to trial, without prejudice to reiterating the special defenses invoked in their MTQ [Serana v. Sandiganbayan, G.R. No. 162059 (2008)] However, if the court in denying the motion to quash acts without or in excess of jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies [Lazarte v. Sandiganbayan, G.R. No. 180122 (2009); Javier v. Sandiganbayan, G.R. Nos.. 147026-27 (2009)]

Question 54

What is the general rule on the grant of the Motion to quash to another prosecution for the same offense?

Answer 54

General rule: Grant of the MTQ will not be a bar to another prosecution for the same offense

Question 55

What is the exception to the general rule that ‘grant of MTQ will not be a bar to another prosecution for the same offense’?

Answer 55

Exception: It will bar another prosecution when the MTQ is based on

a. The criminal action or liability has been extinguished; or

b. The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged
[Sec. 6, Rule 117]

Question 56

What is the right against double jeopardy?

Answer 56

The right against double jeopardy prohibits the prosecution for a crime of which he has been previously convicted or acquitted [Caes v. IAC, G.R. No. 74989-90 (1989)]

Question 57

What are the conditions for the rule of double jeopardy to apply?

Answer 57

Conditions

a. When

1. an accused has been convicted or acquitted, or
2. the case against him dismissed or otherwise terminated without his express consent

b. by a court of competent jurisdiction
c. Upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and
d. After the accused had pleaded to the charge,

Question 58

What is the effect of the rule on double jeopardy?

Answer 58

The conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution

a. for the offense charged, or
b. for any attempt to commit the same or frustration thereof, or

c. for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information
[Sec. 7, Rule 117]

Question 59

What are the kinds of the double jeopardy?a

Answer 59

a. No person shall be put twice in jeopardy for the SAME OFFENSE [Sec. 21, Art. III, Constitution]
b. When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the SAME ACT [Sec. 21, Art. III, Constitution]

Question 60

What is the general rule on when there is identity between two offense? What are the exceptions (no double jeopardy)?

Answer 60

General Rule:

(double jeopardy lies)
There is identity between the two offenses not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information. [Teehankee Jr. v. Madayag, G.R. 103102 (1992)]

Exceptions: (double jeopardy don’t lie)

• The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge;
• The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information;

• The plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except when offended party failed to appear during such arraignment.

[Sec 7, Rule 117]

Question 61

What is the double jeopardy for the “same offense”?

No person shall be put twice in jeopardy for the same offense [Sec. 21, Art. III, Constitution]

Answer 61

The offenses are penalized either by different sections of the same law or by different statutes. The essential elements of each must be examined.

Question 62

What is the test in determining whether a person shall be place in double jeopardy for the same offense?

Answer 62

Test: Whether or not evidence that proves one likewise proves the other,

e.g. The mere fact that two offenses (slander by deed and slight physical injuries) may have taken place on the same occasion, or that one preceded the other, both proceeding from the same impulse, does not make the two a single act or a single offense for one is certainly distinguishable from the other. It is clear that two different acts were committed one preceding the other, resulting in two different offenses. As jeopardy prohibits making a person liable twice for the same act, it is not present in the case where the offender is being made liable for two distinct acts constituting two distinct offenses [People v. Ramos, G.R. No. L-15958 (1961)]

Question 63

What is the double jeopady for the same act?

When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the same act [Sec. 21, Art. III, Constitution]

Answer 63

1. The second sentence of the constitutional protection was precisely intended to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People v. Relova, G.R. No. L-45129 (1987)]
2. But: An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy [People v. Relova, G.R. No. L-45129 (1987)]

Question 64

What are the requisites to successfully invoke double jeopardy?

Answer 64

a. A first jeopardy must have attached;
b. The first jeopardy must have been validly terminated; and
c. The second jeopardy must be for the same offense or the second offense necessarily includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or a frustration thereof

[People v. Espinosa, G.R. Nos. 153714-20 (2003)

Question 65

What are the requisites for first jeopardy to attach (in determining double jeopardy)?

Answer 65

a. Valid indictment
b. Before a competent court;
c. Arraignment
d. A valid plea entered, and
e. The accused has been convicted or acquitted, or the case dismissed or otherwise validly terminated without his express consent

[People v. Honrales, G.R. No. 182651 (2010)]

Question 66

What is a Provisional Dismissal?

Answer 66

Provisional dismissal is dismissal without prejudice to its being refiled or revived [Los Baños v. Pedro, G.R. No. 173588 (2009)]

Question 67

When are cases provisionally dismissed?

Answer 67

Cases are provisionally dismissed where there has already been arraignment and the accused consented to a provisional dismissal.

A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party [Sec. 8, Rule 117]

Question 68

What are the grounds for provisional dismissal?

Answer 68

The delimitation of the grounds available in a MTQ suggests that a MTQ is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Sec. 3, Rule 117, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Sec. 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Sec. 8 obtain [Los Baños v. Pedro, G.R. No. 173588 (2007)]

Question 69

When does a provisional dismissal become permanent?

What are the exceptions?
[Time-Bar Rule]

Answer 69

a. One year after issuance of the order without the case having been revived for offenses punishable
1. by imprisonment not exceeding 6 years, or
2. by fine of any amount, or
3. by both

b. Two years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 years
[Sec. 8, Rule 117]

Exception to the periods: The State may revive beyond the periods provided there is a justifiable necessity for the delay.

Question 70

Is the Court mandated to apply Sec 8 (when provisional dismissal becoes permanent) simply because it is favorable to the accused?

Answer 70

The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People v. Lacson, G.R. No. 149453 (2003)]

Question 71

What should be filed in order for dismissal to become permanent?

Answer 71

Motion for permanent dismissal [Prof. Sanidad]

Question 72

Is a provisional dismissal equivalent to an acquittal?

Answer 72

NO.

A provisional dismissal is not equivalent of an acquittal because the dismissal is with the express consent of the accused [Saldariega v. Panganiban, G.R. Nos. 211933 & 211690 (2015)]

Question 73

What are conditions sine qua non for the application of the time-bar rule?

sine qua non - an essential condition; a thing that is absolutely necessary.
“grammar and usage are the sine qua non of language teaching and learning”

Answer 73

a. The prosecution, with the express conformity of the accused, or the accused moves for the provisional (sin perjucio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case [Sec. 8, Rule 117]
b. The offended party is notified of the motion for the provisional dismissal of the case
c. The court issues an order granting the motion and dismissing the case provisionally
d. The public prosecutor is served with a copy of the order of provisional dismissal of the case [People v. Lacson, G.R. No. 149453 (2003)]

Question 74

How may a case be revived?

after provisional dismissal becomes permanent

Answer 74

A case may be revived by

a. Refiling of the information
b. Filing of a new information for the same offense or one necessarily included in the original offense charged

Question 75

What is the general rule on the need for a new preliminary investigation upon revival of the case? What are the exceptions?

(after provisional dismissal becomes permanent)

Answer 75

General rule: Upon revival of the case, there is no need for a new PI

Exceptions:

a. If the original witnesses have recanted their testimonials or have died
b. If the accused is charged under a new criminal complaint for the same offense
c. If the original charge is upgraded
d. If the criminal liability is upgraded from accessory to principal