Section 8. Provisional dismissal.

A case shall not be provisionally dismissed

except with the express consent of the accused and with notice to the offended
party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six

(6) years or a fine of any amount, or both, shall become permanent one (1) year
after issuance of the order without the case having been revived. With respect to
offenses punishable by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of the order without
the case having been revived.

Although in criminal cases, the accused is entitled to justice and fairness, so is

the State.
Dimatulac v. Villon,[59] this Court emphasized that the judges action must not
impair the substantial rights of the accused nor the right of the State and
offended party to due process of law.
http://remediallawnotes.blogspot.com/2014/06/provisional-dismissal.html

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Respondent judge on his own volition provisionally dismissed the case. The
petitioners did not expressly manifest their conformity to the provisional
dismissal. Hence, the dismissal placed them in jeopardy.

BEFORE judges grant a provisional dismissal, they instruct the defense counsel
(technically called as counsel de parte) to explain to the accused that the case
can be revived within a certain time period.

The express consent of the accused in the provisional dismissal under section 8 is
necessary to bar him from invoking double jeopardy if the case is subsequently
revived within the one or two year time bar.

What are provisional dismissals?

Provisional dismissals refers to those that are temporary in character (i.e., to

dismissals that are without prejudice to the re-filing of the case). (Los Baos vs.
Pedro, G.R. No. 173588, April 22, 2009)

Who can move for the provisional dismissal of a case?

the prosecution with the express conformity of the accused;

the accused; or
both the prosecution and the accused.

What are the requisites in order that a case may be provisionally dismissed?

1. consent of the prosecutor

2. consent of the accused
3. notice to the offended party

How is the express consent of the accused given?

1. Express consent to a provisional dismissal is given either viva voce or in
writing. It is a positive, direct, unequivocal consent requiring no inference or
implication to supply its meaning. Where the accused writes on the motion of a
prosecutor for a provisional dismissal of the case "No objection or With my
conformity", the writing amounts to express consent of the accused to a provisional
dismissal of the case.

2. A motion of the accused for a provisional dismissal of a case is an express

consent to such provisional dismissal. (People vs. Lacson, G.R. No. 149453, April
1, 2003)

Does mere inaction or silence of the accused to a motion for a provisional

dismissal of the case or his failure to object to a provisional dismissal amount to
express consent?

No. The mere inaction or silence of the accused to a motion for a provisional
dismissal of the case or his failure to object to a provisional dismissal does not
amount to express consent. (People vs. Lacson)

Why is the consent of the accused required for the provisional dismissal of his
case?

The raison d etre for the requirement of the express consent of the accused to a
provisional dismissal of a criminal case is to bar him from subsequently asserting
that the revival of the criminal case will place him in double jeopardy for the
same offense or for an offense necessarily included therein. (People vs. Lacson)

When does the provisional dismissal become permanent?

1.) MTC Cases - The provisional dismissal of offenses punishable by imprisonment

not exceeding six (6) years or a fine of any amount, or both, shall become
permanent one (1) year after issuance of the order without the case having been
revived.

2.) RTC Cases - With respect to offenses punishable by imprisonment of more than
six (6) years, their provisional dismissal shall become permanent two (2) years
after issuance of the order without the case having been revived. (Sec. 8, Rule
117)

When should the 1-year or 2-year period be reckoned for a provisional dismissal to
become permanent?

Although the second paragraph of the new rule states that the order of dismissal
shall become permanent one year after the issuance thereof without the case having
been revived, the provision should be construed to mean that the order of dismissal
shall become permanent one year after service of the order of dismissal on the
public prosecutor who has control of the prosecution without the criminal case
having been revived. The public prosecutor cannot be expected to comply with the
timeline unless he is served with a copy of the order of dismissal. (People vs.
Lacson)

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

the prosecution with the express conformity of the accused or the accused moves
for a provisional (sin perjuicio) dismissal of the case; or both the prosecution
and the accused move for a provisional dismissal of the case;
the offended party is notified of the motion for a provisional dismissal of the
case;
the court issues an order granting the motion and dismissing the case
provisionally;
the public prosecutor is served with a copy of the order of provisional
dismissal of the case. (People vs. Lacson)

On the other hand, the time-bar under Section 8 of Rule 117 is akin to a special
procedural limitation qualifying the right of the State to prosecute making the
time-bar an essence of the given right or as an inherent part thereof, so that the
lapse of the time-bar operates to extinguish the right of the State to prosecute
the accused.[35]

Although in criminal cases, the accused is entitled to justice and fairness, so is

the State.

Dimatulac v. Villon,[59] this Court emphasized that the judges action must not
impair the substantial rights of the accused nor the right of the State and
offended party to due process of law.
When may the case be revived?

If a criminal case is provisionally dismissed with the express consent of the

accused, the case may be revived only within the periods provided in the new rule.
On the other hand, if a criminal case is provisionally dismissed without the
express consent of the accused or over his objection, the new rule would not apply.
The case may be revived or refiled even beyond the prescribed periods subject to
the right of the accused to oppose the same on the ground of double jeopardy or
that such revival or refiling is barred by the statute of limitations. (People vs.
Lacson)

How may the State revive the case?

The State may revive the case within the time-bar either by:

Refiling of the Information or

Filing of a new Information for the same offense or an offense necessarily
included therein. (People vs. Lacson)

Is there a need for a new preliminary investigation in case of revival?

No. There would be no need of a new preliminary investigation if the State revive
the case within the time-bar. (People vs. Lacson)

What are some of the instances when a new preliminary investigation is needed in
case of revival?

1. In case wherein after the provisional dismissal of the criminal case, the
original witnesses of the prosecution or some of them may have recanted their
testimonies or may have died or may no longer be available and new witnesses for
the State have emerged.

2. If aside from the original accused, other persons are charged under a new
criminal complaint for the same offense or necessarily included therein

3. If under a new criminal complaint, the criminal liability of the accused is

upgraded from that of an accessory to that of a principal

4. If under a new criminal complaint, the charge has been upgraded. (People vs.
Lacson)
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In determining whether the accused's right to speedy trial was violated, the delay
should be considered in view of the entirety of the proceedings.27 The factors to
balance are the following: (a) duration of the delay; (b) reason therefor; (c)
assertion of the right or failure to assert it; and (d) prejudice caused by such
delay.28 Surely, mere mathematical reckoning of the time involved would not suffice
as the realities of everyday life must be regarded in judicial proceedings which,
after all, do not exist in a vacuum, and that particular regard must be given to
the facts and circumstances peculiar to each case.29 "While the Court recognizes
the accused's right to speedy trial and adheres to a policy of speedy
administration of justice, we cannot deprive the State of a reasonable opportunity
to fairly prosecute criminals. Unjustified postponements which prolong the trial
for an unreasonable length of time are what offend the right of the accused to
speedy trial."30- People v. Rama

When the Rules states that the provisional dismissal shall become permanent one
year after the issuance of the order temporarily dismissing the case, it should not
be literally interpreted as such. Of course, there is a vital need to satisfy the
basic requirements of due process; thus, said in one case:

Although the second paragraph of the new rule states that the order of dismissal
shall become permanent one year after the issuance thereof without the case having
been revived, the provision should be construed to mean that the order of dismissal
shall become permanent one year after service of the order of dismissal on the
public prosecutor who has control of the prosecution without the criminal case
having been revived. The public prosecutor cannot be expected to comply with the
timeline unless he is served with a copy of the order of dismissal.36

This Court has repeatedly impressed upon counsels that the need for the prompt
termination of litigation is essential to an effective and efficient administration
of justice. In Spouses Aguilar v. Manila Banking Corporation,43 We said:

The Court reminds petitioners' counsel of the duty of lawyers who, as officers of
the court, must see to it that the orderly administration of justice must not be
unduly impeded. It is the duty of a counsel to advise his client, ordinarily a
layman on the intricacies and vagaries of the law, on the merit or lack of merit of
his case. If he finds that his client's cause is defenseless, then it is his
bounden duty to advise the latter to acquiesce and submit, rather than traverse the
incontrovertible. A lawyer must resist the whims and caprices of his client, and
temper his client's propensity to litigate. A lawyers oath to uphold the cause of
justice is superior to his duty to his client; its primacy is indisputable.44
G.R. No. 183994 June 30, 2014 WILLIAM CO a.k.a. XU QUING HE, Petitioner, vs. NEW
PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH UY,1 Respondent.

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A permanent dismissal of a criminal case may refer to the termination of the case
on the merits, resulting in either the conviction or acquittal of the accused; to
the dismissal of the case due to the prosecutions failure to prosecute; or to the
dismissal thereof on the ground of unreasonable delay in the proceedings, in
violation of the accuseds right to speedy disposition or trial of the case against
him. In contrast, a provisional dismissal of a criminal case is a dismissal without
prejudice to the reinstatement thereof before the order of dismissal becomes final
or to the subsequent filing of a new information for the offense[8] within the
periods allowed under the Revised Penal Code or the Revised Rules of Court.
herefore, it cannot be gainsaid that the dismissal of Criminal Case No. 10770 on
May 31, 1999 was provisional or temporary, without prejudice to the revival thereof
within thirty days from the date of dismissal. Thus, the Court finds that the
reinstatement thereof on June 25, 1999 did not place petitioner in double jeopardy.

The proscription against double jeopardy[10] presupposes that an accused has been
previously charged with an offense, and the case against him is terminated either
by his acquittal or conviction, or dismissed in any other manner without his
consent. As a general rule, the following requisites must be present for double
jeopardy to attach: (1) a valid indictment, (2) before a court of competent
jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him,
and (5) the acquittal or conviction of the accused, or the dismissal or termination
of the case against him without his express consent. However, there are two
exceptions to the foregoing rule, and double jeopardy may attach even if the
dismissal of the case was with the consent of the accused: first, when there is
insufficiency of evidence to support the charge against him; and second, where
there has been an unreasonable delay in the proceedings, in violation of the
accuseds right to speedy trial. [11]

Petitioner is not in danger of being twice put in jeopardy with the reinstatement
of Criminal Case No. 10770 because as earlier stated, said case was provisionally
dismissed by the trial court upon his motion. Thus, the requirement that the
dismissal of the case must be without the consent of the accused is not present in
this case. Neither does the case fall under any of the aforecited exceptions. The
prosecution had not yet presented evidence at the time the case was dismissed on
May 31, 1999. Moreover, as previously explained, said dismissal was temporary in
nature, as the case was subject to reinstatement within thirty days from the date
of dismissal. Hence, the Court finds no error on the part of the trial court in
allowing the reinstatement of Criminal Case No. 10770.

WHEREFORE, the petition is DENIED for lack of merit.

------------------------------------------
G.R. Nos. 211933 & 211960, April 15, 2015 - ROBERTA S. SALDARIEGA,
Petitioner, v. HON. ELVIRA D.C. PANGANIBAN, PRESIDING JUDGE, BRANCH 227, REGIONAL
TRIAL COURT, NATIONAL CAPITAL REGION, QUEZON CITY AND PEOPLE

When a criminal case is provisionally dismissed with the express consent of the
accused, the case may be revived by the State within the periods provided under the
2nd paragraph of Section 8, Rule 117 of the Rules of Criminal Procedure.

A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party. Here, a perusal of the Order, dated
May 16, 2013, stresses in no uncertain terms that the dismissal of the case was
provisional, i.e., the case could be revived at some future time. If petitioner
believed that the case against her should be dismissed with prejudice, she should
not have agreed to a provisional dismissal. She should have moved for a dismissal
with prejudice so that the court would have no alternative but to require the
prosecution to present its evidence. There was nothing in the records showing the
accused's opposition to the provisional dismissal nor was there any after the Order
of provisional dismissal was issued. She cannot claim now that the dismissal was
with prejudice. Thus, if a criminal case is provisionally dismissed with the
express consent of the accused, as in this case, the case may be revived by the
State within the periods provided under the 2nd paragraph of Section 8, Rule 117 of
the Rules of Criminal Procedure. There is no violation of due process as long as
the revival of a provisionally dismissed complaint was made within the time-bar
provided under the law.

This Court has emphasized that "'speedy trial' is a relative term and necessarily a
flexible concept." In determining whether the accused's right to speedy trial was
violated, the delay should be considered in view of the entirety of the
proceedings. The factors to balance are the following: (a) duration of the delay;
(b) reason therefor; (c) assertion of the right or failure to assert it; and (d)
prejudice caused by such delay. In the instant case, petitioner failed to show any
evidence that the alleged delay in the trial was attended with malice or that the
same was made without good cause or justifiable motive on the part of the
prosecution. Mere mathematical reckoning of the time involved would not suffice as
the realities of everyday life must be regarded in judicial proceedings.17

Here, the delay in the proceedings, which ran from October 25, 2012 until the
provisional dismissal of the case on May 13, 2013, is not the kind of delay
contemplated under the law as to violate the accused's right to speedy trial. More
so, when the cause of the delay is valid, as in the instant case. Likewise, a
perusal of the Order dated May 16, 2013 would show that the order was categorical
in stating that the dismissal of the complaint was provisional with the express
consent of the accused and her counsel. The court merely stated in the Order as to
what transpired during the proceedings of the case and not that the dismissal was
based on the accused's right to speedy trial.

While the Court recognizes the accused's right to speedy trial and adheres to a
policy of speedy administration of justice, we cannot, however, deprive the State
of a reasonable opportunity to fairly prosecute criminals. We reiterate that
unjustified postponements which prolong the trial for an unreasonable length of
time are what offend the right of the accused to speedy trial.18

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t is the practice of some judges before issuing an order of provisional dismissal
in a case wherein the accused had already been arraigned, to require the accused
and his counsel to sign the minutes of the session or any available part of the
record to show the conformity of the accused or his lack of objection to the
provisional dismissal.cralaw

The judge specifies in the order of provisional dismissal that the accused and his
counsel signified their assent thereto. That procedure leaves no room for doubt as
to the consent of the accused and precludes jeopardy from attaching to the
dismissal.cralaw