CRIMINAL PROCEDUREA
ADRIENNE O. ESPARES ----- GENERAL MATTERS -----
JURISDICTION OVER THESUBJECT MATTERJURISDICTION OVER THEPERSON
OF THE ACCUSED
It is the authority to hear and determine a particular criminal
case.It requires that person charged be arrested, or voluntarily
submitted.
It is derived from law.It may be acquired by consent of accused,
or by waiver of objections.
An objection that court has no jurisdiction may be made at any
stage; right to object can never be waived.If accused fails to
object in time, it is waived.
----- JURISDICTION OF CRIMINAL COURTS -----
MTCMeTCMCTC Imprisonment: 6 years & less Fine: P4,000 or
less; Criminal cases of government officials, whose imprisonment or
fine is same as above, and lower than SG 27; Damage to property
through criminal negligence; Summary Procedure (no hearing; only
filing of pleadings) for violations of: traffic laws; rental law;
municipal/city ordinance; and other criminal cases where penalty
is: Imprisonment of not exceeding 6 months; or of fine not
exceeding P10,000; and BP 22 cases.
RTC Imprisonment: more than 6 years Fine: more than P4,000;
Criminal cases of government officials , whose imprisonment or fine
is same as above, and lower than SG 27; RA 9165; Libel;
Intellectual Property; Election criminal cases; and Appellate
jurisdiction over all cases decided by the MTC, MeTC, and MCTC.
Take Note: Jurisdiction over Complex Crimes Jurisdiction is with
the trial court having the jurisdiction to impose the maximum and
most serious penalty imposable. Jurisdiction over Continuing Crimes
Courts of territories where the essential ingredients took place
have concurrent jurisdiction, but the court which first acquires
jurisdiction excludes other courts. (ex. Estafa, Libel)
Jurisdiction over crimes punishable by Destierro MTC Habitual
Delinquency = not considered in determining jurisdiction because it
is not a crime. RTC can issue Hold Departure Orders (HDO), while
MTC cannot HDO one cannot leave Watch list Order one can leave
Look-out Order one can be arrested to aid the authorities to
enforce the law
Officials covered: SG 27, and higher Provincial and officials,
including Sanggunian and Department Heads Officials of diplomatic
service: Consul and higher Philippine Army and Air Force Colonels,
Naval Captains, and higher ranks PNP: Provincial Director and
Senior Superintendent, or higher Prosecutors: City/Provincial
President /Directors /Trustees /Managers of GOCC, state
universities or educational institutions/foundations, including
student regents Members and officials of Congress: SG 27 and up
Members of the Judiciary, without prejudice to Constitutional
provisions Chairmen and members of Constitutional Commissions,
without prejudice to Constitutional provisions
Sandiganbayan Anti-Graft and Corrupt Practices Act;
Offenses/Felonies committed by public officials and employees,
simple/complexed, in relation to their office (if absent or if not
alleged, the crime is with the regular courts); Bribery, Corruption
of Public Officials; Marcos Ill-Gotten Wealth; Violation of Code of
Conduct and Ethical Standards; Plunder Law; Anti-Money Laundering,
when committed by a public officer; and Gift-giving Decree.
EXEMPTIONS: Election offenses RTC has jurisdiction even if
committed by public officials with SG 27, AND in relation to their
office Court Martial cases
Take Note: If public officer is not SG 27 but the office was a
constitutive element of the offense, regular courts have
jurisdiction subject to appeal before the Sandiganbayan. Before the
Sandiganbayan, the extent of participation (principal, accomplice,
or accessory) does not matter. As long as one of the accused is
under the jurisdiction of the SB, even if the other is not a public
officer, both can be charged before the SB.
Ombudsman Malfeasance/Misfeasance or omission by a public
officer
Take Note: The crime need not be related to official duties.
Mere fact that one is a public officer is enough for OMB to
exercise jurisdiction. OMB is not a court; it is only an
investigative body. It can dismiss a complaint outright. It can
file an Information even if there is a pending Motion for
Reconsideration. It has primary jurisdiction over cases cognizable
by the Sandiganbayan. It can take over at any stage of the
investigation by the DOJ. The Office of the Special Prosecutor is
under the OMBs authority.
Family Courts Accused is below 18 years old, but not less than 9
years old. Victim is a minor at the time of the commission of the
crime, PROVIDED: If the minor is guilty, the sentence shall be
suspended without a need of an application.
Court of Tax Appeals Criminal violations of the NIRC, or of the
Tariff and Customs Code. Principal amount of taxes and fees,
exclusive of charges and penalties, is less than 1M. If no
specified amount, jurisdiction is with regular courts; CTA shall
only be appellate. Appellate jurisdiction: RTC (original
jurisdiction); Petition for Review of RTCs order
----- REQUISITES FOR A VALID EXERCISE OF CRIMINAL JURISDICTION
----
JURISDICTION OVER THE SUBJECT MATTERJURISDICTION OVER THE
TERRITORYJURISDICTION OVER THE PERSON OF THE ACCUSED
Conferred: By law, not by the Rules
Determined: By allegations in the Complaint or InformationThe
offense or any of its elements should take place within the
territorial jurisdiction of the court.
EXCEPTIONS: Transitory or Continuing offenses: on a railroad
train, aircraft, public/private vehicle in the course of its trip
court of municipality/city where it passed, including place of
departure and arrival on board a vessel in the course of its voyage
court of the first port of entry or where it passed Art.2 (RPC)
where the action is first filed Piracy anywhere Libel SC has the
power to change the venue of trial to avoid miscarriage of justice
BP 22 cases SandiganbayanIt is acquired by warrant of arrest, or
voluntary submission.
It cannot be fixed by the parties.It cannot be waived.GENERAL
RULE: Seeking for an affirmative relief is considered submission to
the jurisdiction of the court. Examples: filing a MTQ appearing for
arraignment participating in the trial posting bailEXCEPTION:
Questioning courts jurisdiction is not voluntary appearance.
Applicable Statute: Law in force at the time of institution of
the action
To determine jurisdiction, consider the imposable penalty, NOT
the actual penalty.
GENERAL RULE: Jurisdiction once vested cannot be
withdrawnEXCEPTION: If the statute expressly so provides
GENERAL RULE: Question of jurisdiction may be raised at any
stageEXCEPTION: Estoppel by laches
----- PROSECUTION OF OFFENSES -----
INSTITUTION OF CRIMINAL ACTIONS If Preliminary Investigation
(PI) is required: By filing a complaint with the proper officer. PI
is required for offenses where the penalty prescribed by law is at
least 4 years, 2 months, and 1 day, or prision correccional in its
medium, without regard to fine. Who conducts PI: Prosecutor; or
Ombudsman Take Note: An MTC Judge cannot. For all other offenses:
By filing a complaint with the office of the Prosecutor, or
Information directly with the MTC/MCTC.
METRO MANILA / CHARTERED CITIESOUTSIDEMETRO MANILA
Requiring PI (at least 4 years, 2 months, and 1
day)ProsecutorProsecutor
Not requiring PIProsecutorProvincial Prosecutor/ MTC
Falling under the Rules on Summary ProcedureProsecutorProvincial
Prosecutor/ MTC
Take Note: To determine jurisdiction, do not distinguish between
Metro Manila and outside Metro Manila as regards the filing of
civil cases. It is only for filing of a criminal case that you must
distinguish.
Effects of institution of a criminal action:It interrupts the
running of the prescriptive period unless otherwise provided by
special laws.
FOR OFFENSES PENALIZEDBY SPECIAL LAWSIF UNDER
MEDIATION/CONCILIATION/ARBITRATION WITH THE LUPON
It is the filing of a Complaint/Information in court that
interrupts the prescriptive period. It is not the filing in the
proper officer for the conduct of a PI.The prescriptive period is
suspended from the time of the filing of the Complaint with the
Punong Barangay.
The suspension shall not exceed 60 days.
Remedies of offended party if the prosecutor refuses to file an
information: Mandamus if there is grave abuse of discretion New
Complaint if there is no double jeopardy Take up the matter with
the Secretary of Justice File administrative charges against the
erring prosecutor File a criminal action against the prosecutor for
negligence to prosecute or tolerance of the crime File a civil
action for damages for failure to render service Ask for a Special
Prosecutor
May an injunction be issued to restrain criminal
prosecution?GENERAL RULE: NoEXCEPTIONS: To protect the
constitutional rights of the accused. For orderly administration of
justice or to avoid oppression or multiplicity of actions. There is
a prejudicial question which is subjudice. Acts of officer are
without or in excess of authority. Prosecution is under an invalid
law, ordinance, or regulation. Double jeopardy is clearly apparent.
The court has no jurisdiction over the offense. It is a case of
persecution rather than prosecution. The charges are false. There
is no prima facie case and a Motion to Quash on that ground is
denied. To prevent the threatened unlawful arrest of
petitioners.
COMPLAINTINFORMATION
It is a sworn written statement charging a person with an
offense, subscribed by the offended party, any peace officer, or
public officer charged with the enforcement of the law violated.It
is an accusation in writing charging a person with an offense,
subscribed by the Prosecutor and filed with the court.
It is filed in court, or in the Prosecutors office.It is filed
with the court.
It is under oath.It need not be under oath.
It usually refers to private crimes.It usually refers to public
crimes.
Who can file? Offended party; Any peace officer; or Other public
officer charged with the enforcement of the law violated.Who can
file? City/Provincial Prosecutor and their assistants; or Duly
appointed Special Investigators.
Take Note:Want of an oath is a mere defect of form; it does not
affect the substantial rights of the defendant.Take Note:
Prosecution in the RTC is always commenced by an Information,
except: Crimes against chastity; and Defamations. An Information
not properly signed cannot be cured by silence, acquiescence or
even by express consent.
SUFFICIENCY OF COMPLAINT OR INFORMATION Name of the accused
(e.g. nickname, John Doe, or Jane Doe). Designation of the offense.
Act/Omission complained of. Name of the offended party. Approximate
date of commission of offense. Place of commission.
GENERAL RULE: A defective Information cannot support a judgment
of conviction.EXCEPTION: If the defect was cured by evidence during
trial and no objection was raised.
Take Note: Non-inclusion of eyewitness in the Information does
not preclude the Prosecutor from presenting them during trial.
Failure to allege the time of commission, the remedy is to file a
Motion for Bill of Particulars.
WHO MUST PROSECUTE CRIMINAL ACTIONSAll criminal actions
commenced by a Complaint or Information shall beprosecuted under
the direction and control of the Prosecutor.
Take Note: Once a case is already filed in court, it can no
longer be withdrawn or dismissed without courts approval.
Conditions for a private prosecutor to prosecute a criminal
action: The Public Prosecutor has a heavy work schedule, or there
is no Public Prosecutor. The Private Prosecutor is authorized in
writing. The authority of the Private Prosecutor must be approved
by the court. The Private Prosecutor shall continue to prosecute
the case until the end. The withdrawal or revocation must be
approved by the court.
Take Note: It is only the Solicitor General who may bring or
defend actions in behalf of the Republic, except: The prosecution
is remiss, and The private offended party questions the civil
aspect.
WITHIN THE CONTROL AND DISCRETION OF THE PROSECUTORWITHIN THE
CONTROL OF THE COURT AFTER THE CASE IS FILED
What case to file; Whom to prosecute; Manner of prosecution;
Right to withdraw an Information before the arraignment even
without notice and hearing. Suspension of arraignment;
Reinvestigation; Prosecution by fiscal; Dismissal of the case;
Downgrading of offense, or dropping of accused even before
plea.
Take Note: The Prosecutor who conducted the PI will not be the
same Prosecutor who will prosecute the case. If the Prosecutor is
absent, the hearing of the case will be cancelled.
CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO (PRIVATE CRIMES)
Private crimes cannot be prosecuted, except upon a Complaint
filed by the offended party.
WHO MAY PROSECUTEWHO CAN PARDON OR CONSENT
Concubinage and Adultery Only by the offended spouse. If
divorced, not anymore. Only by the offended spouse to both
offenders, express or implied.
Seduction, Abduction, and Acts of Lasciviousness Exclusively and
successively by: Offended woman; Parents, grandparents or
legal/judicial guardians, if offended party is incompetent or
incapable of doing so; State. Offended minor if with sufficient
discretion, if she has no parents or accused is her father and her
mother is dead. Only by express pardon.
Defamation Only by parties defamed.
GENERAL RULE: Pardon should be before filing of the criminal
complaint.EXCEPTION: Marriage between the offender and the offended
party.
Take Note: Subsequent marriage extinguishes the criminal
liability of the offender, together with the co-principals,
accomplices, and accessories.EXCEPT: Marriage was invalid, or
contracted in bad faith; Private libel; or Multiple rape. The
acquittal or death of one of the accused in Adultery will not bar
the prosecution of the other accused.HOWEVER: If the offended
spouse died before the filing of the complaint for Adultery= it
bars further prosecution. If offended spouse died after the filing
of the complaint = it will not bar further prosecution. Desistance
of the complainant= it will not bar the prosecution as long as the
action has been instituted, but it is a waiver to pursue civil
indemnity.
DESIGNATION OF OFFENSE It is the statement of the acts or
omissions constituting the offense. Whenever possible, the
designation given by the statute, or section of the statute.
Specific qualifying and aggravating circumstances = cannot be
appreciated, even if proved, unless alleged in the Information.
Mitigating circumstances need not be alleged.Take Note: Allegations
prevail over the designation of the offense in the Information.
Accused may be convicted of a crime more serious than that named in
the title if such crime is covered by the facts alleged in the body
of the information and its commission is established by
evidence.
CAUSE OF THE ACCUSATIONGENERAL RULE: Accused cannot be convicted
of an offense, unless it is clearly charged in the Complaint or
Information.EXCEPTION: There is waiver.
Take Note: Failure to allege aggravating circumstance cannot be
cured by an amendment of the Complaint or Information after the
accused entered his plea.
DUPLICITY OF THE OFFENSE Joinder of two or more separate and
distinct or different offenses. Remedy: Motion to Quash filed
before the arraignment, otherwise, there is waiver and the accused
may be found guilty of as many offenses as those charged and proved
during the trial.
GENERAL RULE: A Complaint or Information must charge only one
offense.EXCEPTIONS: Complex crimes; Special complex crimes;
Continuous crimes or delito continuado; Crimes that can be
committed in various modes; and Crimes of which another offense is
an ingredient.Take Note: Mala in se felonies cannot absorb mala
prohibita crimes.
AMENDMENT OR SUBSTITUTIONAMENDMENT change in either the form or
substance of the same offense in the Information. Kinds: - Formal;
or - Substantial.Take Note: In civil cases, amendment is done
before an Answer is filed, while here in criminal cases, the
reckoning period is before or after plea.RULES IN AMENDMENT
BEFORE PLEAAFTER PLEA
Amendment, formal or substantial, may be made without leave of
court.
Only formal amendment can be made.
EXCEPT: Substantial amendment can be made if it is beneficial to
the accused.
Requirements: Upon motion by the prosecutor; With notice to the
offended party; and With leave of court.Requirements: With leave of
court; and Amendment is not prejudicial to the rights of the
accused.
Example: Amendment which downgrades the nature of the offense
charged, or excludes any accused.
Take Note: An Information which is void ab initio cannot be
amended. Since the exclusion happens before plea, there is no
double jeopardy. As a result, the accused can still be charged at a
later time.Take Note: Doctrine of Supervening Event (the nature of
the crime charged is changed or upgraded to a higher crime)
amendment is necessary but there is a need for another arraignment
of the accused under the amended Information. Substantial amendment
in the Information is generally not allowed after plea because: it
violates the right of the accused to be informed of the nature and
cause of the accusation against him; and it violates the rule on
double jeopardy.
Take Note: In substantial amendment = the original Information
will be dismissed. In formal amendment = no need for the dismissal
of the original Information.
Requisites of Double Jeopardy: Complaint or Information; Valid
plea entered; Final judgment, or dismissal; and Subsequent
Complaint or Information is filed for: Same offense; or Attempt to
commit the same; or Frustration of said offense; or Offense which
necessarily includes the first offense; or Offense which is
necessarily included in the first offense.
SUBSTITUTION If before judgment, a mistake has been made in
charging the proper offense, the court shall dismiss the original
Complaint or Information upon the filing of a new one, provided
accused shall not be placed in double jeopardy. It is only
applicable to original cases, not to appealed cases.
Limitations: No judgment yet rendered; Accused cannot be
convicted of offense charged or offense necessarily included
therein; and Accused would not be placed in double jeopardy.
AMENDMENTSUBSTITUTION
Formal or substantial.Generally, only substantial.
If before plea, no need for a leave of court.With leave of
court.
If as to form only, no need for a Preliminary Investigation and
the retaking of the plea.Another Preliminary Investigation and plea
is required for the new Information.
When is preliminary investigation needed: There is substitution
of Information;- but if only the mode of commission of an offense
is changed, there is no need. There is substantial amendment; There
is provisional dismissal; Other persons are charged; Under a new
Complaint original charge is upgraded; or Under a new Complaint
criminal liability is upgraded.
VENUE OF CRIMINAL ACTIONS Venue in criminal actions is
jurisdictional (where crime is committed). It cannot be waived or
changed by agreement of the parties, or consent of the
defendant.
Take Note: What can be transferred is the venue of the trial or
hearing, but the place of the institution of the criminal action is
still the place where the crime was committed.
GENERAL RULE: Principle of Territoriality (action must be filed
in the court of territory where the offense or its elements
occurred.EXCEPTION: Transitory and Continuing offenses.
Take Note: Offenses committed abroad but can be filed in the
Philippines: Article 2 (RPC); and Terrorism.
INTERVENTION OF OFFENDED PARTYGENERAL RULE: The offended party
can intervene by counsel where the civil action for recovery of
civil indemnity is instituted in the criminal action.EXCEPTIONS: No
civil liability; Waiver of civil indemnity; Reserved right to
institute a separate civil action; or Civil action is already
instituted.
----- PROSECUTION OF CIVIL ACTION -----
RULES ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL
ACTIONGENERAL RULE: When a criminal action is filed, the civil
action for the recovery of civil indemnity arising from the offense
shall be deemed instituted.Take Note: Civil liability arising from
other source of obligations (law, contract, quasi-contract, and
quasi-delict) are no longer deemed instituted.EXCEPTIONS: The
offended party Waives the civil action; Reserves the civil action =
it must be done before the prosecution commences to present
evidence; or Civil action is filed prior to the criminal action.
Civil action is suspended. There is an option to consolidate the
civil action with the criminal action. It must be done before the
judgment on the merit is rendered.
Take Note: Counterclaims, cross-claims and Third-party complaint
these are not allowed in a criminal proceeding; claims which could
be the subject thereof may be litigated in a separate civil action.
Offended party in a criminal case may appeal the civil aspect
despite the acquittal of the accused. Offended party may compromise
the civil aspect of a crime, provided it is entered into before or
during the litigation, not after the final judgment. Reservation of
civil action is not allowed in: BP 22 cases; Cases before the
Sandiganbayan; and Tax cases.
Rules on filing fees of civil action deemed instituted in a
criminal action: For actual damages = no filing fees. For moral,
nominal, temperate, or exemplary damages, if specified = filing
fees required.
Take Note: If the amount of damages is not specified, the fees
will be a lien on the judgment. For BP 22 cases, the filing fees
are needed on all kinds of damages (including actual damages).
WHEN SEPARATE CIVIL ACTION IS SUSPENDEDAfter the filing of the
criminal actionThe civil action reserved cannot be instituted until
the final judgment is rendered in the criminal action.
The civil action is filed before the criminal action.The pending
civil action shall be suspended in whatever stage until the final
judgment in the criminal action.
Take Note: The acquittal in a criminal action does not bar the
filing of the civil case. The extinction of the penal action does
not carry with it the extinction of the civil action, unless the
extinction proceeds from a declaration in a final judgment that the
fact from which the civil liability might arise did not exist.
Where the criminal case was dismissed before the trial because the
offended party executed an affidavit of desistance, the civil
action thereof is also dismissed.
GENERAL RULE: Primacy of the criminal action over the civil
action.EXCEPTIONS: Independent civil actions (Articles 32, 33, 34,
and 2176, NCC); Civil action presents a prejudicial question; Civil
action is not one intended to enforce the civil liability arising
from the offense; and Civil action is consolidated with the
criminal action.Take Note: The consolidation must be in the
criminal court, irrespective of the nature of the offense and the
amount of the civil claim. The evidence in the civil case is deemed
automatically reproduced in the criminal action without prejudice
to the admission of additional evidence, and the right to
cross-examination. Consolidation is done through a motion.
KINDS OF ACQUITTALEFFECT ON CIVIL LIABILITY
Based on reasonable doubt.Civil liability lies.
Did not commit the crime.No more civil liability based on
delict.
Purely civil.Civil liability arises.
Acts from which civil liability arises from were not
committed.No civil liability.
The extinction of criminal liability = extinction of civil
liability, IF
The accused is innocent; The act or omission does not exist; or
The death of the accused.
The extinction of criminal liability extinction of civil
liability, IF
Acquittal is based on reasonable doubt, if the civil case is
reserved; The liability of the accused is only civil; The civil
liability is not based on act which the accused is acquitted; The
statute declares that there is only civil liability; Justifying
circumstances; or Exempting circumstances.
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY(These are not
suspended, even if filed before the criminal action, or is
reserved.) Article 32: Violation of rights; Article 33: Defamation,
fraud, and physical injuries; Article 34: Failure to aid by police
force; and Article 2176: Quasi-delicts.
Take Note: The recovery of civil liability here arising from the
same act or omission may be prosecuted separately, even without a
reservation.
EFFECTS OF DEATH OF THE ACCUSED OR CONVICT ON THE CIVIL
ACTIONBefore the arraignment.The case shall be dismissed without
prejudice to any civil action that the offended party may file
against the estate of the accused.
After the arraignment, and during the pendency of the criminal
action.The criminal liability and the civil liability arising from
the delict are extinguished, but: Independent civil actions
continue; Civil liability on other sources subsists; and Civil
action reserved and subsequently filed or such civil action has
been instituted when accused died.
The accused or convict dies after final appeal.The pecuniary
liabilities of the accused are not extinguished.
PREJUDICIAL QUESTION (PQ) It arises in a case, the resolution of
which is a logical antecedent of the issue involved therein and the
cognizance thereof pertains to another tribunal. It suspends the
criminal action. Elements: The civil action is instituted prior to
the criminal action; The civil action involves an issue similar or
intimately related to the issue raised in the subsequent criminal
action; and The resolution of such issue determines whether or not
the criminal action may proceed. Time to plead: By filing a motion
in the Office of the Prosecutor during the preliminary
investigation, or in the court conducting the preliminary
investigation; or in the court before prosecution rests its
case.
Take Note: Civil and administrative = no PQ. Both civil = no PQ.
Both criminal = no PQ. Civil and criminal = there may be a PQ.
----- PRELIMINARY INVESTIGATION -----
PRELIMINARY INVESTIGATION (PI) It is an inquiry or proceeding to
determine whether there exists sufficient ground to engender a
well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof, and should be held for
trial. It is merely inquisitorial. The presence of the accused or
the offended party = not mandatory. Respondent is the proper term;
not accused. It is a personal right which can be waived, by:
Failure to claim it before the accused pleaded; His silence; or
Failure to request it within 5 days. GENERAL RULE: PI is required
before the filing of a Complaint or Information for an offense, the
penalty thereof is at least 4 years, 2 months, and 1 day, without
regard to fine.EXCEPTION: No PI when a person is lawfully arrested
without a warrant (instead, there can be an inquest).
INSTANCES WHEN PRELIMINARY INVESTIGATION MAY BE ASKED BY THE
ACCUSED AFTER ARRESTED
Take Note: The absence of a PI does not affect the courts
jurisdiction or invalidate the Information, if no objection was
raised by the accused; if an objection was raised, the court should
order the fiscal to conduct a PI, instead of dismissing the
Complaint or Information.
REMEDIES OF ACCUSED IF NO PRELIMINARY INVESTIGATION Refused to
enter a plea upon arraignment, and object to further proceedings;
Insist on a PI; File a certiorari, if refused; Raise the lack of PI
as error on appeal; or File for prohibition.
Take Note: PI is not part of the trial. The dismissal of the
case by the Prosecutor will not constitute double jeopardy, and it
will not bar the filing of another complaint for the same offense.
But if the case is re-filed, the accused is entitled to another
PI.
WHO MAY CONDUCT PRELIMINARY INVESTIGATION Provincial/City
prosecutors, and their assistants; National and regional state
prosecutors; and Ombudsman, Special Prosecutor (if authorized by
the Ombudsman), COMELEC, PCGG.
Take Note: The NBI cannot conduct a PI. First level court judges
cannot. The jurisdiction of the prosecutors is based on
territory.
Effects of an incomplete PI: It will not warrant the quashal of
the Information; and It will not affect courts jurisdiction or the
validity of the Information.
Take Note: The complaint-affidavit must be subscribed before the
prosecutor or government official where the case will be filed. Do
not file a notarized affidavit; instead, bring your client before
the prosecutors office, except: There is no available prosecutor or
government official; or Complainant is abroad.
PROCEDURE OF PRELIMINARY INVESTIGATION
Take Note: A Motion for Reconsideration can be filed with the
Prosecutor. There is no need for service of subpoena (and receipt
thereof) for the Office of the Prosecutor to obtain jurisdiction
over the respondent because no case yet.
RESOLUTION OF INVESTIGATION PROSECUTOR (IP) If he finds cause to
hold respondent for trial, he shall prepare the resolution and
Information.
Take Note: No Complaint or Information may be filed or dismissed
by an IP without prior written authority or approval of the
provincial/city Prosecutor or Chief State Prosecutor, or of the
Ombudsman. Exclusion of others from the Information does not
relieve them from criminal liability; it is not a ground for a
Motion to Quash.Information is filed by someone not authorized by
law the court does not acquire jurisdiction. The determination of
the Assistant Fiscal or State Prosecutor is only recommendatory;
their findings may be reversed or modified by the provincial/city
fiscal, in which case it is the latter who may directly file the
Information without need of another preliminary investigation.
Posting of bail does not bar the accused from questioning the
conduct (or absence) of a preliminary investigation, or the
legality of the arrest.
WHEN WARRANT OF ARREST MAY BE ISSUEDPROBABLE CAUSE (PC) It is a
reasonable ground for belief in the existence of facts warranting
the proceedings complained of.
Take Note: While the judge may rely on the fiscals
certification, the same is not conclusive upon the judge; the
latter may require the submission of affidavits of witnesses, or
may require fiscal to conduct further preliminary investigation or
reinvestigation.
FOR THE ISSUANCE OF A WARRANT OF ARRESTFOR THE ISSUANCE OF A
SEARCH WARRANT
Judges of the RTC and inferior courts need not personally
examine the complainant and witnesses to determine probable cause.
Why? Because a preliminary investigation has been done prior.Judges
are required to personally examine the complainant and witnesses.
Why? Because no preliminary investigation has been previously
conducted.
PROCEDURE (REGIONAL TRIAL COURT)
PROCEDURE (MUNICIPAL TRIAL COURT)
DETERMINATION OF PROBABLE CAUSE
BY THE PROSECUTOR(Executive determination of PC)It is done by
the Prosecutor during the Preliminary Investigation.Take Note: The
court can compel the Prosecutor, by Mandamus, to conduct a
Preliminary Investigation (because its the Prosecutors ministerial
duty); but, the court cannot compel the Prosecutor to determine
Probable Cause as it is discretionary upon him.
BY THE JUDGE(Judicial determination of PC)It is done by the
Judge to ascertain whether or not a Warrant of Arrest should be
issued.Take Note: The Judge is not required to read the entire
records of the case to determine Probable Cause.
When can you file a motion for the determination of probable
cause: After the filing of the Information, and before the Judge
has acted on it.Take Note: It cannot be filed after the issuance of
a Warrant of Arrest.
Warrant of arrest is not necessary: The accused is already under
detention; The Complaint/Information is filed pursuant to a lawful
warrantless arrest; or The offense is penalized only by a fine.
Remedies of the accused if he believes that there is no probable
cause to hold him for trial: Motion to Dismiss; or Motion to Quash
(if a Warrant of Arrest has already been issued).
MTC Judge may issue a Warrant of Arrest before the conclusion of
the Preliminary Investigation, if: If he finds that probable cause
exists; and There is a necessity of placing the respondent under
immediate custody.
CASES NOT REQUIRING PRELIMINARY INVESTIGATIONIf a Complaint is
filed with the Prosecutor The Prosecutor will determine PC and then
file the Information in court.
If a Complaint/Information is filed with the MTC/MCTC The Judge
will determine PC, and in its discretion issue either a Warrant of
Arrest, OR Summons (if no necessity of placing under custody).
INQUEST It is an informal and summary investigation conducted by
a public prosecutor in criminal cases involving persons arrested
and detained without warrant of arrest. It is applicable only if:
There is warrantless arrest; or The offense requires a PI.
Take Note: You can file for bail during inquest. Even if there
is waiver under Rule 125, you can still apply for bail.
PROCEDURE FOR INQUEST
Take Note: If warrantless arrest, but the offense does not
require PI? Information will be directly filed with the Prosecutor,
or with the MTC. Records of PI shall not automatically form part of
the records of the case; it must be introduced as evidence. The
courts are not compelled to take judicial notice thereof.
----- ARREST -----ARREST It is the taking of a person into
custody in order that he may be bound to answer for the commission
of an offense. Essential requisites for a valid Warrant of Arrest:
Issued upon PC, determined personally by a Judge; After evaluation
of prosecutors report and evidence adduced during PI; Warrant must
particularly describe the person to be arrested; and In connection
with a specific offense or crime.
Who may issue? Judges of all levels. BID Commissioner may issue
a Warrant of Arrest of an undesirable alien sought to be
deported.
Remedy for warrants improperly issued: Petition to quash it; not
a petition for habeas corpus.
Take Note: The accused is not required to be handcuffed or be
placed in jail in order to be considered arrested. Invitations are
not arrest.
ARREST HOW MADE Actual restraint; or Voluntary submission.
Take Note: Reasonable and necessary amount of force may be used.
Upon arrest, these may be confiscated: Object subject of the
offense or used or intended to be used; Fruits of the crime; May be
used to commit violence or to escape; Dangerous weapons; and
Objects, possession of which is illegal per se. Arrest must precede
the search; it cannot be reversed. Reliable information alone is
not sufficient to justify a warrantless arrest. Validity of a
Search Warrant 10 days, after which it becomes void. Validity of a
Warrant of Arrest No time limit for its validity. When can you make
an arrest? Any day, any time of the day or night
ARREST WITHOUT WARRANT, WHEN LAWFULGENERAL RULE: No authority to
arrest without a warrant.EXCEPTIONS: Lawful warrantless arrests: In
flagrante delicto (e.g. buy-bust operation); Doctrine of Hot
Pursuit; Evasion of service of sentence; Escapes; By bondsman for
purpose of surrendering the accused; and Accused attempts to leave
the country without permission of the court.
Take Note: Flight per se is not synonymous with guilt.
Rules on illegality of arrest:1. Objection must be raised before
arraignment; otherwise, it is deemed waived.2. Illegality of
warrantless arrest may be cured by filing of an Information in
court and the subsequent issuance by the Judge of a Warrant of
Arrest.3. Once already charged in court, the remedy is to quash the
Information, not habeas corpus.
METHODS OF ARRESTWith a warrantArrest may be made even if the
police officer is not in possession of the Warrant of Arrest.
However, if the person arrested so requires, the warrant shall be
shown to him as soon as possible.
EXCEPTIONS: Person to be arrested flees; He forcibly resists
before officer could do so; or Giving of information will imperil
the arrest.
Without a warrantArresting officer must state his authority to
arrest, and the cause of his arrest.
EXCEPTIONS: Engaged in the commission of the offense; Pursuit
immediately after its commission; Escapes, flees, or forcibly
resists before officer could do so; or Giving of information will
imperil the arrest.
By a private personState the cause of the arrest, and the
intention to arrest.
EXCEPTIONS: (same as without a warrant)
----- BAIL -----
Bail It is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, conditioned
upon his appearance before any court as required under the
conditions specified by the rule. It is applicable whenever there
is deprivation of liberty, or there is voluntary surrender. It is
available to those detained persons but not yet formally charged.
It is available in extradition proceedings (proof required: clear
and convincing evidence). Bail is wholly discretionary in
deportation proceedings, since it is not a criminal action. Kinds
of bail: Corporate surety; Property bond; Cash deposit; and
Recognizance.
Take Note: Persons under custody of Military Courts are not
entitled to bail.
Prosecution witnesses may also be required to post bail to
ensure their appearance at the trial, where: There is a
substitution of Information, and The court believes that a material
witness may not appear at the trial.
Conditions of bail:1. The undertaking shall remain in force at
all time, until promulgation of judgment of the RTC.2. The accused
shall appear in court when ordered to do so.3. Failure to appear in
court without justification = there is waiver; trial in absentia
will proceed.4. Bondsman shall surrender the accused for execution
of the final judgment.
Take Note: Requiring arraignment before grant of bail is not
valid. The trial court may impose other conditions in granting bail
where likelihood of jumping bail or of committing other harm is
feared. Filing of a fake bail bond = appellant is deemed to have
escaped. The accused who absconded after posting bail does not lose
his right to bail. The remedy of the court is to increase the
amount of bail.
BEFORE CONVICTIONAFTER CONVICTION
Bail as a matter of right(The Judge cannot deny bail, but he has
discretion on the amount.)MTC and RTC
EXCEPT, in offenses punishable by reclusion perpetua, life
imprisonment, or death penalty, where evidence of guilt is strong.
(If not strong, it is a matter of right)MTC
RTC, provided: imprisonment is less than 6 years, and no
disqualifiers: Recidivist, habitual delinquent, reiteracion;
Previously escaped from legal confinement; Committed offense while
under probation/parole/pardon; Flight-risk; or Undue risk that he
may commit another crime during the pendency of the appeal.
Bail as a matter of discretionRTC, provided: it is not a capital
offense, or is not punishable by reclusion perpetua, or life
imprisonment, and it is not accompanied by any bail disqualifiers
if the penalty exceeds 6 years.
Bail is not allowed in: Capital offense, or offense punishable
by reclusion perpetua, or life imprisonment; and The evidence of
guilt is strong.
WHERE DO YOU APPLY FOR BAIL
RTC if appealed, and before the transmission of records to the
appellate court.Appellate court if appealed, and the RTCs
conviction changed the nature of the offense from non-bailable to
bailable.
WHERE TO APPLY
If arrested in the place where the case is pending In the court
where the case is pending; or If the Judge of said court is absent
or unavailable, with any Judge in the
province/city/municipality.
If the arrest is in a place different from where the case if
pending In the court where the case is pending; or In the RTC where
the accused was arrested; or If no RTC Judge, with the MTC
Judge.
If there is a case pending, but no arrest yet (meaning, the
accused voluntary surrenders) Only where the case is pending.
If there is an arrest, but no case is pending (meaning,
warrantless arrest) Any court where the accused is held.
Illustrations:Arrested in Brgy. Bitano, Legazpi City, and the
case was filed in Legazpi City= apply in court where the case is
pending; if the Judge is not available, apply in any court in the
area.Arrested in Legazpi City, but the case was pending in Daraga=
apply in Legazpi City, not in Daraga.Wandering freely in Legazpi
City, but the case is pending in Daraga= you are not yet arrested
so do not apply for bail;= but if you decide to voluntarily
surrender, do it in Daraga, and post bail there.
Take Note: If bail is filed in court other than where the case
is pending, the Judge who accepted the bail shall forward it
together with the order of release to the court where the case is
pending. But the Judge may order a new bail. Warrant of Arrest
without recommendation for bail is a violation of constitutional
right of accused to bail, except if charged with offenses
punishable by reclusion perpetua, or higher, and the evidence of
guilt is strong.
RULES
CONVICTED BY:YEARS OF IMPRISONMENTBAIL DISQUALIFIERRESULT
RTC> 6 yearsBail is denied
RTC> 6 yearsXBail is discretionary
RTC< 6 yearsBail is a matter of right
RTC< 6 yearsBail is discretionary, but the court will impose
a higher amount of bail
Take Note: Although bail is discretionary, bail hearing is still
mandatory. In order to grant bail as a matter of discretion, there
must be no final judgment yet.
GENERAL RULE: Capital offenses (those punishable by reclusion
perpetua, life imprisonment, or death) are not bailable when
evidence of guilt is strong.EXCEPTION: Accused is a minor.
GUIDELINES IN FIXING THE AMOUNT OF BAIL (not exclusive)
Financial ability; Nature and circumstances of the offense;
Penalty; Character and reputation of the accused; Age and health of
the accused; Weight of evidence; Probability of the accused
appearing at the trial; Forfeiture of other bail; Accused is a
fugitive when arrested; and Pendency of other cases.
BAIL WHEN NOT REQUIRED(Reduced bail on recognizance) Violation
of ordinance; Light felony; Penalty does not exceed 6 months,
and/or fine of 2,000; Youthful offender; In custody for a period
equal to or more than the possible maximum imprisonment prescribed;
and Failure to appear.
Take Note: Under the Rules on Summary Procedure, generally,
there is no bail, except, when a Warrant of Arrest is issued for
failure to appear when required by the court.
INCREASE OR REDUCTION OF BAILIf increased but the accused does
not give bail = he may be committed into custody.
FORFEITURE AND CANCELLATION OF BAILForfeiture- When the accused
fails to appear.
Remedy: Motion for Reconsideration to reinstate the bail.
Within 30 days from failure to appear, the bondsman must:
produce the accused or give reason for non-production; and explain
why accused did not appear.
Take Note: If bondsman fails to do the above, an order of
confiscation shall be rendered against him.
Cancellation- It is automatic when: Accused is acquitted;
Dismissal of the case; or Execution of judgment of conviction.- Or
upon application of bondsman when: Surrender of accused; or Proof
of his death.
APPLICATION FOR OR ADMISSION TO BAIL SHALL NOT BAR THE ACCUSED
FROM CHALLENGING: Validity of his arrest; Legality of the Warrant
of Arrest; or Regularity, or questioning the absence of preliminary
investigation.
They must be raised before entering plea (arraignment).
Take Note: A Motion to Quash the amended Information can be
filed during the pendency of a petition for bail.
HOLD DEPARTURE ORDER (HDO) It can be issued only by the RTC in
criminal cases. MTC Judges have no authority to issue, or to cancel
the HDO.
----- RIGHTS OF THE ACCUSED -----
Rights of the accused during trial1. To be presumed innocent.2.
To be informed of the nature and the cause of the accusation
against him.GENERAL RULE: The accused cannot be convicted of an
offense, unless the offense is clearly charged in the
Complaint/Information.EXCEPTION: The accused fails to object to its
sufficiency during trial and the deficiency was cured by competent
evidence presented; a waiver of his constitutional right.3. To be
present and defend in person and by counsel at every stage of the
proceeding.GENERAL RULE: The presence of the accused during
criminal action is not required and shall be based on his sole
discretion.EXCEPTIONS: During arraignment; During promulgation of
sentence, except for light offenses; and If ordered by the court
for purposes of identification.
Take Note: Private complainant does not need to be present
always. He is only required to be present during arraignment.
Effects of waiver by the accused of his right to appear: Waiver
of the right to present evidence and to cross-examine the
witnesses; The prosecution can present evidence if the accused
fails to appear; and The court can decide the case without the
accuseds evidence.
Trial in Absentia Absence of the accused = waiver of his right
to meet the witnesses face to face, but not a waiver of his duty to
the court. Requirements for trial in absentia: The accused has been
arraigned; He has been duly notified of the trial; and His failure
to appear is unjustified.
Right to Counsel This right is absolute and may be invoked at
all times, even on appeal. But the right to counsel de parte is not
absolute.RIGHT TO COUNSEL
DURING ARRAIGNMENTDURING TRIAL
It is the courts duty to inform the accused of his right to
counsel, and to provide him if he cannot afford.Mandatory only
during arraignment.
It is the accused who must assert his right to counsel.
DURING CUSTODIAL INVESTIGATIONDURING TRIAL
What is required is a competent and independent counsel,
preferably the choice of the accused.
Take Note: These are not independent counsel: Legal officer of
the city; Public/private prosecutor; Counsel for the police; and
Municipal Attorney.What is required is an effective counsel.
Take Note: Confessions made without the assistance of a counsel
are not admissible, but they may be used to impeach the credibility
of the accused. Retrial of the case can be ordered on the ground of
denial of the constitutional right to counsel. The offended party
cannot waive the assistance of a counsel.
GENERAL RULE: The negligence of the counsel binds the
accused.EXCEPTION: Gross negligence of the counsel.4. To testify as
witness in his own behalf. This is a waivable right. The silence of
the accused will not prejudice him. The accused can testify for the
prosecution if he wants, but he cannot be compelled to do
so.AMERICAN RULEENGLISH RULE
The accused may be cross-examined only on matters covered by his
direct examination.The accused may be cross-examined as to any
matter.
5. To be exempt from being compelled to be a witness against
himself (Right against Self-Incrimination). This only applies to
testimonial compulsion. This right may be waived by failure to
invoke after an incriminating question is asked and before his
answer.ORDINARY WITNESSACCUSED
He may be compelled to take the witness stand and claim the
privilege as each question requiring an incriminating answer is
asked.He may altogether refuse to take the witness stand and refuse
to answer any and all questions.
Take Note: If the accused testifies in his own behalf, he may be
cross-examined. Furnishing of specimen of signature is covered by
this right. This right is available in: Criminal proceedings; Civil
proceedings; Administrative proceedings, where a penal sanction is
involved; and Government proceedings.6. To confront and
cross-examine the witnesses against him at trial. This right may be
waived.7. To have compulsory process (subpoena ad testificandum,
and subpoena duces tecum). This right may be waived. If a witness
refuses to testify when required, he can be cited in contempt of
court. The court may order a witness to give bail, or to be
arrested. Other processes to compel the attendance of a person:
Warrant of Arrest; Contempt; Perpetuation of testimony; and Modes
of discovery. For witness for the accused: Sick/infirm/unavailable;
or Lives more than 100 km. from the court. For witness for the
prosecution: Sick/infirm/unavailable; or Witness is about to
depart.8. To have a speedy, impartial, and public trial. This right
cannot be waived. There is no violation of this right if the delay
if imputable to the accused.Right to a speedy trial(criminal)It can
be invoked at any time before trial.
Remedy: Motion to Dismiss.
Speedy disposition of the case(quasi-judicial/administrative)It
can be invoked at any time as long as the action is pending.
Remedy: Habeas Corpus.
Relevant periods: Arrest to pre-trial and arraignment: 30 days
Arraignment to trial: 80 days Entire period of trial: 180 days
Take Note: Dismissal for violation of accuseds right to a speedy
trial is equivalent to an acquittal. An attempt to prosecute for
the same offense is equal to double jeopardy. Excluded from the
determination of delay: Mental/Physical examination of the accused;
Other criminal charges; Extraordinary remedies against
interlocutory orders; Pre-trial proceedings, not exceeding 30 days;
Orders of inhibition or change/transfer of venue; Any period not
exceeding 30 days when the accused is actually under advisement;
Absence of witness; Mental incompetence/physical inability of the
accused to stand trial; Co-accused over whom the court has no
jurisdiction or for whom the time for trial has not run and no
motion for a separate trial is granted; The prosecution dismissed
the Information upon motion and then filed another charge for the
same case; and Continuance granted by the court motu proprio, or on
motion of either the accused or the prosecution.
Right to public trial:GENERAL RULE: Trial should be
public.EXCEPTION: When evidence to be produced is offensive to
decency or public morals.9. To appeal on all cases allowed by law
and in the manner prescribed by law. This right may be waived. The
right to appeal is not a natural right.
----- ARRAIGNMENT AND PLEA -----
ARRAIGNMENT AND PLEA, HOW MADEARRAIGNMENT It is the formal mode
of implementing the constitutional right of the accused to be
informed of the nature of the accusation against him. Where: In the
court where the Complaint/Information was filed, or assigned for
trial. How: Read by the Judge or clerk; In a language/dialect known
to the accused; and Accused must be asked whether he pleads guilty
or not (meaning, arraignment first before plea). When: Accused is
not under preventive suspension: 30 days from the date the court
acquires jurisdiction over the person of the accused (meaning, from
the filing of the Information).Take Note: The time of the pendency
of a Motion to Quash, or of a Bill of Particular, or of other
causes justifying suspension, is not counted. Accused is under
preventive suspension:
Take Note: Arraignment cannot be waived. The accused must be
present and must personally enter his plea. The offended party must
also be present. If he does not appear, the accused can plea to a
lesser offense with the conformity of the prosecution.PLEA OF NOT
GUILTY IS ENTERED1. If the accused so pleaded;2. If the accused
refuses to plea;3. If the accused enters a guilty plea but offers
exculpatory evidence;4. If the accused makes a conditional plea;
and5. If the plea entered is indefinite or ambiguous.
GENERAL RULE: Unconditional plea of guilt admits the
crime.EXCEPTIONS: Compelled by violence or intimidation; Accused
did not fully understand the meaning and consequences of his plea;
The Information is insufficient to sustain conviction; The
Information does not charge any offense; and The court has no
jurisdiction.
Take Note: When there is a defect in the Information, the Judge
has no obligation to point out the defect. The obligation to file a
Motion to Quash belongs to the accused, whose failure to do so
constitutes a waiver. A mere written manifestation is not a valid
plea.
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE1.
There is consent of the offended party;2. The prosecutor also
consented to the plea of guilty; and3. The plea is to a lesser
offense which is necessarily included in the offense charged.
If the accused entered a plea to a lesser offense without the
consent of the offended party and the prosecutor, and he was
convictedThe accuseds subsequent conviction of the crime charged
would not place him in double jeopardy.
After arraignment but before trialThe accused may still be
allowed to plead to a lesser offense after withdrawing his plea of
not guilty. No amendment of the Complaint/Information is
necessary.
Take Note: A plea of guilty to a lesser offense after
prosecution rests, is allowed only when the prosecution does not
have sufficient evidence to establish guilt for the crime
charged.
During trial, a plea of guilty to a lesser offense is no longer
allowed.
ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE; WHAT THE COURT
SHOULD DO1. Conduct a searching inquiry into the Voluntariness of
the plea; and Full comprehension of the consequences of his plea.2.
Require the prosecution to prove his guilt; and3. Ask the accused
if he desires to present evidence and allow him to do so if he
desires; but proof of self-defense to exonerate him is not
allowed.
SEARCHING INQUIRY
IMPROVIDENT PLEA It refers to a plea of guilty without fully
understanding its consequences. Effects: Conviction will be set
aside if plea of guilty is the sole basis of the judgment. If not,
the court may validly convict based on independent adequate
evidence. Can an improvident plea be withdrawn? YES!When: At any
time before judgment of conviction becomes final and
executory.Effect of withdrawal: The judgment of conviction is set
aside, and there is re-opening for new trial.
Take Note: Withdrawal of a plea of guilty is not a matter of
right to the accused but of sound discretion to the trial
court.
BILL OF PARTICULARS It is filed before arraignment.
GROUNDS FOR SUSPENSION OF ARRAIGNMENT The accused suffering from
unsound mental condition; Prejudicial question exists; A Petition
for Review is pending with the DOJ or with the Office of the
President; and It should not exceed 60 days from filing. There are
pending incidents, like: Motion to Quash; Motion for Inhibition;
Bill of Particulars.
----- MOTION TO QUASH -----
Motion to Quash (MTQ) It is filed by the defendant before
entering his plea, which hypothetically admits the truth of the
facts in the Complaint/Information at the same time that it sets up
a matter which, if duly proved, would preclude further proceedings.
It must be in writing.
GENERAL RULE: MTQ is filed before entering plea.EXCEPTIONS:
(meaning, MTQ may be filed after plea) Failure to charge an
offense; Lack of jurisdiction over the offense charged; Extinction
of offense or penalty; or Defendant would be placed in double
jeopardy.
Take Note: MTQ only belongs to the accused. MTQ is not a
responsive pleading. What is quashed is the Information, not the
Complaint-Affidavit. Filing a MTQ results in the submission of the
accused to the jurisdiction of the court.
MOTION TO QUASHDEMURRER TO EVIDENCE
It is filed before defendant enters his plea.It is filed after
prosecution rested its case.
It does not go into the merits of the case.It is based on
inadequacy of evidence by the prosecution.
Rule 117Rule 119
GROUNDS FOR MOTION TO QUASH1. The facts charged do not
constitute an offense. Why? Because the elements of the offense are
not alleged. Matters aliunde are not considered. If the facts
alleged constitute a different crime No MTQ; instead, the court
will order an amendment. If amendment is not followed, then, the
court will grant MTQ. Is there double jeopardy? None, because there
is no arraignment yet.2. More than one offense was charged in the
Information. GENERAL RULE: 1 offense = 1 InformationEXCEPTION:
Complex crimes3. It does not conform substantially to prescribed
form.4. The officer who filed the Information had no authority to
do so. It cannot be cured by silence, acquiescence, or consent.5.
Lack of jurisdiction over the person of the accused. Either because
the accused is not yet arrested, or has not yet voluntarily
surrendered.6. Lack of jurisdiction over the offense charged. The
court can consider even without alleging in the MTQ.7. The criminal
action or liability is extinguished (Article 89, RPC).8. It
contains averments, which if true, would constitute a legal excuse
or justification, such as: Justifying circumstances; Exempting
circumstance; and Absolutory causes.9. The accused has been
previously convicted or acquitted of an offense charged, or the
case against him was dismissed without his express consent.10.
Double jeopardy. Requisites: Complaint or Information; Valid plea
entered; Final judgment, or dismissal; and Subsequent Complaint or
Information is filed for: Same offense; or Attempt to commit the
same; or Frustration of said offense; or Offense which necessarily
includes the first offense; or Offense which is necessarily
included in the first offense. Requisites to raise double
jeopardy:1. First jeopardy must have attached;2. First jeopardy
must have been terminated;3. Second jeopardy must be for the same
offense or the second offense includes or is necessarily included
in the offense charged in the first Information or is an attempt or
frustration thereof.
Take Note: There is no double jeopardy when: Supervening event;
The facts constituting graver charge are only discovered after a
plea was entered; or The plea of guilty to a lesser offense was
made without the consent of the prosecutor and the offended party,
except when the offended party did not appear during the
arraignment.
GENERAL RULE: Dismissal must be without the express consent of
the accused.EXCEPTIONS:Even if there is express consent of the
accused, still, they are tantamount to dismissal or acquittal.
There is violation of right to a speedy trial; or Demurrer to
evidence
Take Note: The discharge of the defendant on a preliminary
investigation is not an adjudication in his favor as will bar
subsequent prosecution for the offense; preliminary investigation
is not part of the trial.
EFFECTS OF SUSTAINING A MOTION TO QUASHGENERAL RULE: It results
to dismissal.EXCEPTIONS:
If based on alleged defect which can be cured by amendment.The
court will order amendment.
If based on ground that the facts charged do not constitute an
offense.The court will allow amendment; if the prosecution fails to
amend, then, it will result to the dismissal.
Can there be a re-filing of the Information? GENERAL RULE: Yes.
The accused will not be discharged, unless admitted to bail. But,
if still no new Complaint/Information is filed within the specific
period ordered by the court, the accused can be
discharged.EXCEPTIONS: Prescription; or Double jeopardy.EFFECTS OF
SUSTAINING OR DENYING MOTION TO QUASH
PROVISIONAL DISMISSAL Requisites:1. There is express consent of
the accused;2. Notice to the offended party; and3. The court
granted the motion. Effects of provisional dismissal: The case is
temporarily dismissed. It can later on be revived (not refiled).
GENERAL RULE: Double jeopardy cannot be invoked.EXCEPTION:
Dismissal was actually an acquittal based on: Lack or insufficiency
of evidence; or Denial of right to a speeding trial. There is no
form required for a provisional dismissal. Who can ask for a
provisional dismissal? The prosecution It must be with the consent
of the accused (so that there will be no double jeopardy) If there
is no consent, the hearing will be reset If there is no consent,
and it was dismissed, double jeopardy will already set in. The
accused There is no need for the consent of the prosecution. When
can you ask for a provisional dismissal? At any time while the case
is pending. What are sample grounds for provisional dismissal? The
witness is not available for quite some time; The victim became
insane; or There is lack of material evidence. Why move for a
provisional dismissal instead for a continuance? So that you will
not get trapped by the accused saying that his right to a speedy
trial has been violated. Asking for multiple continuances and rests
may piss the Judge.HOW CAN PROVISIONAL DISMISSAL BECOME
PERMANENT
The offense is punishable by imprisonment not exceeding 6 years1
year after the issuance of the order
The offense is punishable by imprisonment beyond 6 years2 years
after the issuance of the order
Take Note: In provisional dismissal, there is no need for a new
preliminary investigation, EXCEPT if the witness: Recanted; Died;
or A new one emerged.MOTION TO QUASHPROVISIONAL DISMISSAL
It is filed by the accused.It is filed by the accused, or by the
prosecutor.
A form is required.No form is required.
It assails the Information.It is grounded on reasons other than
the defects in the Information.
It is available before plea.It is available at any time.
MOTION TO DISMISS(CIVIL)MOTION TO QUASH (CRIMINAL)
Court actionEither to grant, deny, or order amendment.Either to
grant, deny, or order amendment.Limited grounds: Defects that can
be cured, or facts charged do not constitute an offense.
Re-filingYes.
EXCEPT: Prescription; Res judicata; Unenforceable under the
Statute of Fraud; and Extinguished claim or demand.Yes.
EXCEPT: Prescription; and Double jeopardy.
Objections not raisedWaived.
EXCEPT: Prescription; Res judicata; Litis pendentia; and Lack of
jurisdiction over the subject matter.Waived.
EXCEPT: Prescription; Double jeopardy; Lack of jurisdiction over
the offense; and Facts do not constitute an offense.
----- PRE-TRIAL -----
Pre-trial This is mandatory in criminal cases (MTC, MCTC, MeTC,
RTC, & Sandiganbayan). When should it occur? 30 days from the
date the court acquires jurisdiction over the person of the
accused, and after arraignment.
PRE-TRIAL IN CIVIL CASEPRE-TRIAL IN CRIMINAL CASE
The presence of the defendant is required, unless duly
represented by his counsel; otherwise, the case shall proceed as if
the defendant is in default.The presence of the accused is not
indispensable, unless required by the court. The accused may waive
his presence at all stages, except at arraignment, promulgation, or
when required to appear for identification.
The presence of the plaintiff is required, unless excused;
otherwise, the case may be dismissed with or without prejudice.The
presence of private offended party is not required, except during
arraignment.
Pre-trial brief is required.Pre-trial brief is not required; but
it requires attendance at pre-trial conference.
Pre-trial is mandatory.Pre-trial is mandatory.
GENERAL RULE: No compromise in a criminal action (offer of
compromise is a sign of criminal liability).EXCEPTION: Compromise
is allowed as regards the civil aspect.
MATTERS TO BE CONSIDERED DURING PRE-TRIAL Plea bargaining;
Stipulation of facts; Marking for identification of evidence;
Waiver of objections to admissibility of evidence; Modification of
the order of trial if accused admits the charge but interposes a
lawful defense (reverse trial); and Other matters that will promote
a fair and expeditious trial of the civil and criminal aspects of
the case.
PRE-TRIAL AGREEMENTThese are not required in civil cases.
It must be in writing; Signed by both accused and his counsel;
and Subject to approval of the court.
Take Note: Omission of signature of the accused and his counsel
renders the stipulation of facts inadmissible in evidence.
NON-APPEARANCE DURING PRE-TRIALOffended party, or the witness is
absent.The court can either reset the pre-trial, or rely on
compulsory processes.
Counsel if absent.The court may impose sanctions or
penalties.
Accused is absent.Forfeiture of bail, and/or warrant of
arrest.
PRE-TRIAL ORDER It is issued after pre-trial, reciting actions
taken, facts stipulated, and evidence marked. Purposes: Binds the
parties to issues raised therein. Limits the trial to matters not
disposed of. Controls the course of the action during trial.
----- TRIAL -----
Trial should not exceed 180 days from the first day of trial,
except as otherwise provided by the Supreme Court.
REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE
OF WITNESS1. Witness is material;2. Party who applies is not
negligent;3. Witnesses can be had at the time to which the trial is
deferred and incidentally that no similar evidence could be
obtained; and4. An affidavit showing the existence of the above
circumstances must be filed.
TRIAL IN ABSENTIA Absence of the accused = waiver of his right
to meet the witnesses face to face, but not a waiver of his duty to
the court. Requirements for trial in absentia: The accused has been
arraigned; He has been duly notified of the trial; and His failure
to appear is unjustified.
REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD Motion to Dismiss (due to denial of right to a
speedy trial) Failure of the accused to move for the dismissal
prior to the trial = waiver of his right to dismiss.
REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS1.
There is no direct evidence;2. Absolute necessity for the
evidence;3. Testimony could be substantially corroborated in
material points;4. Accused does not appear to be the most guilty;
and5. Accused is not convicted of a crime involving moral
turpitude.
When to apply? Before the prosecution rests its case.
What does the applicant needs to submit? A sworn affidavit.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS Evidence
adduced in support of the charge shall automatically form part of
the trial; and It operates as an acquittal and bar to further
prosecution for the same offense.
Take Note: If the court denies the motion to discharge the
accused as state witness, his sworn statement shall be inadmissible
in evidence.
ORDER OF TRIAL1. Prosecution;2. Defense;3. Rebuttal;4.
Surrebuttal; and5. Submission of memoranda.
Take Note: The order can be reversed when self-defense or other
exculpatory defenses are raised.
DEMURRER TO EVIDENCE (DTE) This is a motion to dismiss due to
insufficiency of evidence presented by the prosecution.
DTE IN CRIMINAL CASEDTE IN CIVIL CASE
When to fileAfter the prosecution rests.After the plaintiff has
completed presenting his evidence.
Leave of court (LoC)It is not really needed, but: If you file
with LoC, and it is denied, accused can still present evidence. If
no LoC, and it is denied accused will not be able to present
evidence; judgment shall be rendered.No need for LoC.
Effect of grant of LoCAcquittal, but the civil aspect should
still be heard, unless the court rules that the fact from which the
civil liability would arise does not exist.Final disposition of the
case.
Take Note: The court can move for a demurrer on its own, as long
as it gives the prosecution a chance to be heard.
Take Note: If criminal demurrer is denied, is there a remedy?
None. Why? Because it is an interlocutory order, which is not
reviewable by appeal, or by certiorari, before judgment. Just wait
for the judgment, then if there is GADALEJ, file Certiorari under
Rule 65.
----- JUDGMENT -----
REQUISITES OF A JUDGMENT1. In writing;2. In the official
language;3. Personally and directly prepared and signed by the
Judge; and4. With a concise statement of the fact and signed by the
Judge.
Take Note: There can be no oral judgment. Remedy if the judgment
is not put into writing = file a Petition for Mandamus to compel
the Judge to put it in writing. It is not necessary that the Judge
who tried the case be the same judicial officer to decide it. It is
sufficient if he be apprised of evidence already presented.
CONTENTS OF THE JUDGMENTIf for conviction1. The offense;2.
Participation of the accused;3. Penalty imposed; and4.
Aggravating/mitigating circumstances.
If for acquittal1. Whether there is complete non-liability;2.
Reasonable doubt; and3. Facts from which civil liability might
arise were not committed.
Take Note: The judgment of acquittal is considered a final and
executory order. There is no more remedy for it.
PROMULGATION OF JUDGMENTIn civil cases=Judgment is served.In
criminal cases=Judgment is promulgated.
Presence of counsel=Not necessary.Presence of accused=Required,
except for light offenses.
Take Note: If the accused is absent without justifiable case, he
loses the remedies available in the Rules, and he shall be
arrested; but, he can explain within 15 days. The Judge is not
required to promulgate the judgment personally.Who may promulgate
the judgment? The Judge of the court in which it was rendered; The
clerk of said court, in the absence of the Judge; or The executive
Judge of the RTC having the jurisdiction over the place of
confinement or detention.
Take Note: The appellate courts can do promulgation. Notice of
promulgation should be served to the accused personally (as much as
possible).EXCEPTIONS: If in jail = to the warden. If out on bail =
to the bondsman. If at large = to his last known address.
Promulgation in absentia (without the presence of the
accused):1. Judgment is for a light offense; and2. Where despite
notice, accused failed to appear.
WHEN JUDGMENT BECOMES FINAL No appeal is filed; Waiver of the
right to appeal; Probation; or Service of sentence.
----- NEW TRIAL OR RECONSIDERATION -----
New Trial or Reconsideration The accused can file a Motion for
New Trial, or a Motion for Reconsideration at any time before
judgment of conviction becomes final (meaning: 15 days (Neypes Rule
is applicable) The prosecution cannot file a Motion for New Trial,
or a Motion for Reconsideration.
GROUNDS FOR NEW TRIAL1. Errors of law or irregularities
prejudicing the substantive rights of the accused during trial;
or2. Newly discovered evidence.Requisites:a. It is material;b. It
could not have been discovered and produced with reasonable
diligence; andc. Would probably change the judgment.
Take Note: If a Motion for New Trial is granted, the court
should commence a new trial within 30 days from notice of such
order. the thirty-day period is extendable up to 180 days from
notice. A Motion for New Trial can be filed in the Court of
Appeals, but only based on newly discovered evidence. When? At any
time from the perfection of the appeal, until the court loses
jurisdiction.
GROUNDS FOR MOTION FOR RECONSIDERATION1. Errors of law; or2.
Errors of fact in the judgment.
Take Note: The grant of the court of the reconsideration should
require no hearing (such as taking of additional proof). A Motion
for Reconsideration can be filed in the Court of Appeals; but just
once.
EFFECTS OF GRANTING THE NEW TRIAL OR RECONSIDERATIONIf a New
Trial is granted on the ground of errors of law, or irregularities
during trial.Everything will be set aside and taken anew; but,
those not affected shall stand (meaning: not all evidence
previously adduced shall stand).
If a New Trial is granted on the ground of newly discovered
evidence.Evidence already taken shall stand, and newly discovered
evidence will be considered (meaning: all evidence previously
adduced shall stand).
In all cases (granting of New Trial, or Reconsideration)Original
judgment shall be set aside or vacated and a new judgment rendered
accordingly.
Take Note: The effect of granting a New Trial is not to acquit
the accused, in which he is guilty, but to set aside the judgment
so that the case may be tried de novo as if no trial had been
before. An order granting or denying a New Trial is appealable.
----- APPEAL -----
Appeal There is no record of appeal in criminal cases; it is
only applicable in civil cases. Only notice of appeal is allowed in
criminal cases.
Who may appeal? Accused; Offended party (but only as regards the
civil aspect); or People of the Philippines.Example:When a Motion
to Quash was granted, the State can appeal since no double jeopardy
yet (a Motion to Quash is filed before arraignment).
EFFECT OF AN APPEALCIVIL=the court will only consider the
assignment of errors.CRIMINAL=the entire case is open for
review(penalty can be increased on appeal).
WHERE TO APPEALCourt where to appealRequirement
MTC/MeTC/MCTCto the RTCvia Notice of Appeal filed in the
MTC/MeTC/MCTC.
(In civil cases, record of appeal).
Take Note: There is no hearing in the RTC since acting in its
appellate jurisdiction.
RTCif acting originally, to the CAvia Notice of Appeal filed in
the RTC (R.41) Same is penalty imposed by the RTC is reclusion
perpetua or life imprisonment. If the penalty is death, straight to
CA (but no need for notice of appeal).
(In civil cases, record of appeal).
Procedure: Appellants brief within 30 days Appellees brief
within 30 days Reply brief within 20 days
(In civil cases, 45-45-20 days).
if acting as an appellate court, to the CAvia Petition for
Review (R.42)
directly to the SCif based purely on questions of law (R.45)
Neypes Rule applies
CAto the SCvia Petition for Review on Certiorari (R.45) Neypes
Rule applies
Except: CA decides penalty is reclusion perpetua, or life
imprisonment, the remedy is by notice of appeal with the CA. CA
decided death, it will render but not enter a judgment and certify
the case to the SC. automatic review by the CA (it would minimize
the possibility of an error of judgment).
Sandiganbayan decides (same level as CA)to the SC if penalty is
less than death, life imprisonment, or reclusion perpetua Petition
for Review on Certiorari (R.45). if penalty is death automatic
review. if penalty is life imprisonment, or reclusion perpetua
Notice of Appeal.
Take Note: When the decision is raised to the SC on Notice of
Appeal (reclusion perpetua, or life imprisonment), both questions
on facts and law can be raised. R.41, Sec.1 (when appeal is
prohibited) does not apply to criminal appeals. Thus, you can
appeal a MTQ, regardless of the ground availed of. Even if the
ground can lead to a simple re-filing, appeal is still available.
If accused uses the wrong mode for appeal, the judgment will become
final and executory because the running of the appeal period will
not be tolled.Except: If the interest of justice would allow.
When appeal to be taken? 15 days from promulgation of judgment,
or from notice of the final order appealed from. It is interrupted
from MNT/MR is filed, until the notice of the order overruling it
has been served upon the accused or upon his counsel. The balance
of the period begins to run.
Effect of perfection of appeal The court a quo loses
jurisdiction over the case, both over the record and over the
subject of the case.
Take Note: The fresh 15-day period to appeal from the dismissal
of a Motion for New Trial, or Motion for Reconsideration to the RTC
is counted from the receipt of the order dismissing the MNT/MR.
(NEYPES RULE). It applies to both criminal and civil cases.
Modes of Review: Ordinary appeal; Petition for Review; Petition
for Review on Certiorari; and Automatic appeal.EFFECT OF APPEAL BY
ANY OF SEVERAL ACCUSEDOnly one or several of them (but not all)
appealIt does not affect those who did not appeal, unless favorable
and applicable to them.
Appeal by offended party of the civil aspectIt does not affect
the criminal aspect.
Upon perfection of appealThe execution shall be stayed, but only
as to the appealing party.
Example:A,B, C were all convicted for Homicide.A and B appealed
using the correct mode.C appealed but used the wrong mode.Cs case
was dismissed.A and B were acquitted on appeal.
Result: C will not benefit because he appealed; if not, it would
have benefited him.
GROUNDS FOR DISMISSAL OF APPEAL Failure of appellant to file a
brief within the reglementary period, except when he is represented
by a counsel de officio; Escape of appellant from prison or
confinement; Appellant jumps bail; and Flight of appellant to a
foreign country during the pendency of appeal.
----- SEARCH AND SEIZURE -----WARRANT OF ARRESTSEARCH
WARRANT
It is an order directed to the peace officer to execute the
warrant by taking the person stated therein into custody that he
may be bound to answer for the commission of the offense.It is an
order in writing in the name of the Republic of the Philippines
signed by the judge and directed to the peace officer to search
personal property described therein and to bring it to the
court.
It does not become stale.It is valid only for 10 days.
It may be served on any day and at any time of the day or
night.It is to be served only in day time, unless the affidavit
alleges that the property is on the person or in the place to be
searched.
Searching examination of witnesses is not necessary.It is a must
to personally conduct an examination of the complainant and the
witnesses.
NATURE OF SEARCH WARRANT It is in the nature of criminal process
akin to a writ of discovery and may be invoked only in furtherance
of public prosecutions. It has no relation to civil process or
trials. It is not available to individuals in the course of civil
proceedings. It is not for the maintenance of any mere private
right. It is interlocutory in character it leaves more to be done,
which is the determination of the guilt of the accused.
WHERE TO APPLY FOR SEARCH WARRANTGENERAL RULE: In the court
within whose territorial jurisdiction the crime was
committed.EXCEPTIONS: For compelling reasons, any court within the
judicial region the offense was committed, or where the warrant is
to be served. Or in any court where the warrant will be
enforced.
Take Note: If the criminal action had already been filed, apply
only in that court where the case is pending.
GENERAL RULE: A search warrant cannot be applied for in QC or in
Manila and be implemented outside of its territorial
jurisdiction.EXCEPTIONS: R.A. 9165;Apply a search warrant before an
executive judge in Manila/QC; then, it will be effective
anywhere
Intellectual Property Code; Illegal possession of firearms;
Illegal gambling; Heinous crimes; AMLA; and Violation of Tariff and
Customs Code.Take Note: The application for a search warrant is not
a criminal action; it is a special judicial process.
PERSONAL PROPERTY TO BE SEIZED BY VIRTUE OF A WARRANT Subject of
the offense; Stolen or embezzled or fruits of the offense; and/or
Used or intended to be used for committing the offense.
Take Note: It is not required that the property to be seized
should be owned by the person against whom the search warrant is
directed; it is sufficient that he has control or possession of it.
The search warrant does not have to specify the quantity of
drugs.
REQUISITES FOR ISSUANCE OF A SEARCH WARRANT1. It must be issued
upon probable cause. Probable Cause facts and circumstances which
could lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in
connection with the offense is in the place sought to be searched.
Who determines probable cause? It is personally determined by the
Judge (not by the prosecutor). Exception: Deportation of illegal
and undesirable aliens, whom the President/Commissioner of
Immigration may order be arrested, following a final order of
deportation for the purpose of deportation.2. The place to be
searched must be described with particularity.3. The things or
persons to be seized must also be described with particularity.
Take Note: 1 Search Warrant = 1 specific offense. If the search
warrant is already implemented the thing seized must only be
confined to those described therein. If the search warrant is not
yet implemented illegal in plain view can be seized.
EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT Search incidental
to lawful arrest; the arrest must come before, or contemporaneous
with the search and seizure. Consented search; Search of moving
vehicle; Check points; body checks in airport; Plain view
situation; Stop and frisk situation; and Enforcement of custom
laws.
Remedies from unlawful search and seizure: MTQ (before the
implementation of the search warrant); Motion to Suppress Evidence
(as to the objects illegally taken Exclusionary Rule); and after
the implementation of the search warrant and before the
presentation in court. Replevin (if the objects are illegally
possessed).
WHERE IS PROBABLE CAUSE NEEDED Preliminary investigation;
Warrantless arrest (crime just been committed); Warrant of Arrest;
and Search and seizures.
----- PROVISIONAL REMEDIES -----
NATURE OF PROVISIONAL REMEDIES Those to which parties litigant
may resort for the preservation or protection of their rights or
interests and for no other purposes during the pendency of the
action; They are applied to a pending litigation for securing the
judgment or preserving the status quo, and in some cases after the
judgment for preserving or disposing of the subject matter.
GENERAL RULE: Provisional remedies in civil procedure are
applicable to criminal procedure.EXCEPTION: Replevin (it can only
be filed before an Answer; there is no answer in criminal
procedure).
GROUNDS FOR ATTACHMENT Accused is about to abscond; Accused
concealed, removed, or disposed of his property (or is about to do
so); Claim for money or property that has been embezzled with abuse
of trust (Estafa); and Accused resides outside the Philippines.
Take Note: Attachment can be availed of when civil action is
properly instituted in the criminal action.KINDS OF PROVISIONAL
REMEDIES1. Attachment;2. Injunction;3. Receivership;4. Delivery of
personal property;5. Support pendent lite.