Motion to Quash Flashcards
When is arraignment improper?
what happens when motion to quash is granted
- motion is granted
- court orders filing of new information/charge
- accused in custody is NOT released
- if no order or prosecution fails to file, accused is released
what are the remedies when motion to quash is NOT granted
- on appeal, raise the denial of his MtQ as an error committed by the lower court
2, which is an added ground to overturn the lower court’s ruling
certiorari is improper.
elements for double jeopardy
- valid information/complaint
- competent court
- accused entered a plea
- conviction, acquittal, or termination (w/o consent of the accused)
- same offense, same act
the only exception of res judicata
- when** trial court** acted with grave abuse of discretion so the OSG can assail that judgment for a a [petition for certiorari] establishing that the State was deprived of a fair opportunity to prosecute and prove its case.
[thoughts]
this makes sense since what if the judge was morally corrupt, then the OSG can petition for ceriotrari on the ground that the State did not have a fair opportunity to prosecute and prove its case
if the accused was sentenced for 5 years and then appeals and then it became 6 years, can the accused claim double jeopardy?
No, when the accused himself files for a motion for recon or modif, double jeopardy can no longer be invoked becase he has waived his right by filing nsuch a motion
where dismissal is final (as an exc) even if it was made on part of the accused
[demurrer to evidence]
[denial of right to speedy trial’]
motion to quash v. provisional dismissal
who files
form and content
ground
permanence
grounds for motion to quash
- double JEO (non-correctible)
- court no JD
- prescription, extinction
- facts allege do not constitute an offense
it is only after issuing an order to ammend their defective information and the pro doesn’t ammend in the given period, the court then will quash the information and then dismiss the case.
if issue is not raised in the accused, he waives and can be convicted as many offenses even if it was duplisitous information.
this is done during arraignment,
the grounds in the motion to quash is exclusive.
MOTION TO QUASH
MOTION TO QUAH
quash even after arraignment is possible still
if the information fails to state an offense (even if the facts are all true and perform, it still doesn’t amount to a crime)
evidence outside the information may involve outside can stil lbe
ex. timber and lumber, find the definition in a dictionary, then will the information make it less defective or or fatally defective
if your motion to quash is denied, can certiorari rule 65 a remedy?
no , that is not the proper remedy, the proper rememdy is to go to trial and then file an appeal which is included in your appeal as additional errors
on the rule of Double jeopardy, if the same offense is punished thru ordinance and then national law. is it double jp?
No.
how about rape violation in the RPC v. 7610
in UNdang, there is no double (good and categorical doube JP)
in Tulagan, there is double
what ify oure charged with robbery but what actually occured is bribery,
the crime charged is totally different from the evidence would establish
rule say if there is a variance and the crime charged and the crime established, substittued information. file motion to wtihdraw
subtituted to match with the evidence
variance between allegation and proof - between allegation adn proof. the it is the duty of the prosecution to solve.
varvariance doctrine - courts will be the one to decide (court says yo uare charged with murder but i will convict you with homicide) as there must be homicide in mmurder
buts sexual assault is not necsessarily included in rape
in teh case of kawaili, he can’t be convicted of rape in paragraph 1 (this was the one alleged) there is no variance doctrine.
court said that doctine of paragraph 1 (266-a) and lascivious conduct according to another law (from RPC and the special penal law)
so variance doctrine applies to other laws as well.
case: attempted murder, then during trial, there was a misdiagnoses when in fact it was actually fatal (frustrated) and during trial victim dies.
what must be done?
withdraw the information
substituted it with murder charges on the ground of supervening events
here you cannot use variance doctrine because it is a lesser offense to greater offense cannot be applied
o
supervening fact
must have arisen AFTER the charges were filed
so a mistake in the investigation is not a supervening fact when they should have appreciated treachery as a qualifying circumstnace.
but what if the evidence was found after filing?
pwede, as long as it was found in spite of reasonable diligence
you can no longer use a subtituted because of the lack of diligence that you would discover that it should have been a case of serious physcail infjureies. even if the existence was the evidence was not able to be found in spite of reasonable diligence
what if it has been convcited of frustrated murder and service sentence, then the victim dies,
what to do?
no substition cannot be filed.
new charges have to be filed based on the supervening filed/newly discovered evdience which may have been existing before but was not dsicovered in spite of reasonable evidence
so in the first charge of he served and then victim dies as a result of the frustrated charge incident, the sentence of the second of the murder must be subtracted from teh service
