REMEDIAL LAW (CRIMINAL PROCEDURE) REVIEWER

PRELIMINARIES 1. Jurisdiction is determined by the extent of the penalty which the law imposes, on the basis of the facts as recited in the complaint or information constitutive of the offense charged. Not determined by: what may be meted out to the offender after trial the result of the evidence that would be presented during the trial Jurisdiction is retained regardless of: whether the evidence proves a lesser offense than that charged in the information, the subsequent happening of events, although of a character which would have prevented jurisdiction from attaching in the first instance.

2. General Rule: Jurisdiction of a court to try criminal action is to be determined by the law at the time of the institution of the action.

Exception: where the statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case, the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal which will continue the proceeding.

3. Venue is jurisdictional. Thus: Action must be instituted and tried in the municipality or territory where the offense has been committed or where any one of the essential ingredients thereof took place. 4. General Rule: the question of jurisdiction may be raised at any stage of the proceedings.

Exception: may not be raised for the first time on appeal, where there has been estoppel and laches on the party who raises the question.

RULE 110 PROSECUTION OF OFFENSES

Institution of Criminal Actions 1. For offenses which require preliminary investigation: By filing the complaint with the proper officer for preliminary investigation. Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110. These offenses are those where the penalty prescribed by law is at least 4 years, 2 months and 1 day of imprisonment without regard to the fine.

2. For all other offenses, or for offenses which are penalized by law with lower than at least 4 years, 2 months and 1 day without regard to the fine: Instituted directly with the MTC and MCTC, or the complaint is filed with the Office of the Prosecutor. In Manila and other chartered cities, the complaint shall be filed with the Office of the Prosecutor unless otherwise provided in their charters.

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3. Take Note: A complaint for offenses cognizable by the RTC is NOT filed directly with the RTC either for purposes of preliminary investigation or for commencement of the criminal prosecution. 4. The institution of the criminal action interrupts the running of the period of prescription of the offense charged Unless: otherwise provided in special laws.

Act No. 3323 governs the prescriptive periods of violations of special laws, or offenses other than those penalized under the Revised Penal Code.

5. The filing of a complaint for purposes of preliminary investigation starts the prosecution process. The complaint or information 1. Requisites: in writing in the name of the People of the Philippines Against all persons who appear to be responsible for the offense involved. 2. Who is the real offended party? The People of the Philippines, but since the crime is also an outrage against the offended party, he is entitled to intervene in its prosecution in cases where the civil action is impliedly instituted therein. Complaint 1. Definition: A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. 2. The complaint as defined under Section 3 is different from the complaint filed with the Prosecutors Office. 3. The complaint filed with the Prosecutors Office, from which the latter may initiate a preliminary investigation, refers to: any written complaint filed by an offended party or not not necessarily under oath, except in 2 instances: complaint for commission of an offense which cannot be prosecuted de officio or is private in nature where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers. 4. Under the Rule on Summary Procedure: a complaint may be directly filed in the MTC, provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of information, which means by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes. Information 1. Definition: An accusation in writing a person with an offense, subscribed by the prosecutor and filed with the court. 2. How is an Information different from a Complaint? Unlike a complaint, which requires that it be under oath and is filed either in the MTC or with the provincial/city prosecutors office, the information does not have to be under oath and is always filed in

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court. All that is required is that it be subscribed or signed by the fiscal or prosecutor, which is an indispensable requirement. Who must prosecute criminal actions 1. May a criminal prosecution be restrained by injunction? General Rule: No. Reason: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

Exceptions: where injunction is justified by the necessity to afford protection to the constitutional rights of the accused when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions when there is a prejudicial question which is sub judice when the acts of the officer are without or in excess of authority where the prosecution is under an invalid law, ordinance or regulation when double jeopardy is clearly apparent where the court has no jurisdiction over the offense where it is a case of persecution rather than prosecution where the charges are manifestly false and motivated by the lust for vengeance when there is clearly no prima facie case against the accused and the motion to quash on that ground has been denied preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

2. Prior to the filing of the information in court, the prosecutor has full control of the case. He decides who should be charged in court and who should be excluded from the information.

However: His decision on the matter is subject to review by: the Secretary of Justice who exercises supervision and control over his actions and who may sustain, modify or set aside his resolution on the matter in appropriate cases, by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction.

3. Private Prosecutor Participation: May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action. Public Prosecutor must be present during the proceedings and must take over the conduct of the trial from the private prosecutor at any time the cause of the prosecution may be adversely affected.

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Thus, where the prosecutor has turned over the active conduct of the trial
to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered valid evidence of the People.

However: this rule applies only to courts which are provided by law with
prosecutors, and not to municipal courts which have no trial prosecutors, in which case the evidence presented by the private prosecutor can be considered as evidence for the People. *However, under an amendment made by the SC effective May 1, 2002, Rule 110 Section 5 now provides that All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn." 4. General Rule: In appeals, the Sol. Gen. has control. He may abandon or discontinue the prosecution of the case in the exercise of his sound discretion and may even recommend the acquittal of an accused when he believes that the evidence does not warrant his conviction.

Exception: provided for in RA 8249 which states in part that in all cases elevated to the Sandiganbayan and from the SB to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issued in 1986.

5. When it is said that the requirement of Art. 344 of RPC is jurisdictional, what is meant is that it is the complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case. 6. Once the complaint is filed, does death of the complainant in a crime of adultery extinguish the criminal liability of the accused? No. The participation of the offended party in private crimes is essential not for the maintenance of the criminal action but solely for the initiation thereof. Any pardon given by the complainant or her death after the filing of the complaint would not deprive the court of the jurisdiction to try the case. 7. The desistance of complainant: Does not bar the People from prosecuting the criminal action

But: it does operate as a waiver of the right to pursue civil indemnity.

Sufficiency of complaint or information 1. A complaint is sufficient if it states: the name of the accused the designation of the offense by a statute the acts or omission complained of as constituting the offense the name of the offended party the approximate time of the commission of the offense the place where the offense was committed. 2. Purpose: to safeguard the constitutional right of an accused to be informed of the nature and cause of the accusation against him.

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Name of the accused 1. If name is known: the name and surname of the accused or any appellation or nickname by which he has been or is known. 2. If name cannot be ascertained: a fictitious name with a statement that his true name is unknown. If true name thereafter disclosed: such true name shall be inserted in the complaint or information and record. 3. While one or more persons, along with specified and named accused, may be sued as John Does, an information against all accused described as John Does is void, and an arrest warrant against them is also void. Designation of the offense 1. In case of a conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former. 2. The real question is not, did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime. Cause of accusation 1. If one or more elements of the offense have not been alleged in the information, the accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial. Even the accuseds entering a plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged. 2. Important: The new rule requires that the qualifying and aggravating circumstances be alleged in the information. 3. Where the law alleged to have been violated: prohibits generally acts therein defined is intended to apply to all persons indiscriminately, but prescribes certain limitations or exceptions from its violation the information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. 4. Where the law alleged to have been violated applies only to specific classes of persons and special conditions the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, the information must show that the accused does not fall within the exemptions. 5. Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven. Place of commission of the offense

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May conviction be had even if it appears that the crime was committed not at the place alleged in the information? Yes, provided the place of actual commission was within the jurisdiction of the court. Unless: the particular place of commission is an essential element of the offense charged. Date of the commission of the offense What is the determinative factor in the resolution of the question involving a variance between the allegation and proof in respect of the date of the crime? The element of surprise on the part of the accused and his inability to defend himself properly. Name of the offended party To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another person, and indictment for such offense must name the owner and a variance in this respect between the indictment and the proof will be fatal. Duplicity of the offense 1. Waiver: When the accused fails, before arraignment, to move for the quashal of the information which charges 2 or more offenses, he thereby waives the objection and may be found guilty of as many offenses as those charged and proved during the trial. 2. Where the law with respect to an offense may be committed in any of the different modes provided by law, the indictment in the information is sufficient if the offense is alleged to have been committed in one, two or more modes specified therein. The various ways of committing the offense should be considered as a description of only one offense and the information cannot be dismissed on the ground of multifariousness. 3. Exceptions to the rule on duplicity: continuous crimes and complex crimes Amendment or substitution 1. Before the accused enters his plea, the prosecutor may: upgrade the offense allege qualifying and aggravating circumstances or change the offense charged without leave of court, provided there is evidence thereon which has been presented during the preliminary investigation. 2. However, prosecutor cannot: downgrade the offense charged exclude from the information a co-accused without filing a motion to that effect, with notice to the offended party, and subject to the approval of the court. The court shall state the reasons in resolving the motion and copies thereof furnished all parties, especially the offended party. 3. Technically, paragraph 2 of Section 14 does not refer to amendment, but to substitution of the complaint or information by a new one. If the substitution is made before the accused enters his plea, the question of double jeopardy does not arise. If the filing of new information is done after the plea and before judgment on the ground that there has been a mistake in charging the proper offense, the filing thereof may only be allowed if it will not place the accused twice in jeopardy. 4. Test as to whether a defendant is prejudiced by an amendment: 6

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whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the new form as in the other.

5. General Rule: after arraignment, the prosecutor may no longer amend the information which changes the nature of the crime, as it will prejudice the substantial rights of the accused.

Exception: when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact. However: if the supervening event which changes the nature of the crime to a more serious one occurred after the accused has been convicted, which makes the amendment of the information no longer the remedy of the prosecution, the prosecution can and should charge the accused for such more serious crime, without placing the accused in double jeopardy, there being no identity of the offense charged in the first information and in the second one.

6. Section 14 applies only to original case and not to appealed case. Place where action is to be instituted 1. Venue in criminal case is jurisdictional, being an essential element of jurisdiction. 2. General Rule: Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes committed outside the Philippines.

Exceptions: those provided in Article 2 of the Revised Penal Code. Those who commit any of the crimes contemplated therein can be tried by Philippine courts.

Intervention of the offended party in criminal action 1. Where the offended party withdrew a reservation to file a separate civil action, the private prosecutor may still intervene in the prosecution of the criminal case, by conducting the examination of witnesses under the control of the prosecutor.

However: once the offended party has filed a separate civil action arising from the crime, he may not withdraw such civil case in order to intervene in the criminal prosecution. He loses the right to intervene. He no longer has any standing in the criminal case, except to be a prosecution witness.

2. Where a criminal action has been provisionally dismissed upon motion of the prosecutor, can the case be revived upon motion of the offended party? No, because the offended party or complaining witness cannot act for the prosecutor.

RULE 111 PROSECUTION OF CIVIL ACTION

Institution of criminal and civil actions 1. General Rule: the institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged. Except in the following instances:

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the offended party waives the civil action; he reserves his right to institute the civil action separately; or he institutes the civil action prior to the criminal action. 2. The employer may not be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v. Court of Appeals since quasi-delict is not deemed instituted with the criminal. If at all, the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code. 3. Two instances where no reservation shall be allowed: a criminal action for violation of BP 22 unless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein. A claim arising from an offense which is cognizable by the Sandiganbayan. a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing (Sec. 4 of PD1606 as amended by RA 8249)

4. When the reservation of the right to institute the separate civil actions shall be made: before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such a reservation. 5. The rule requiring reservation to file a separate civil action does not apply to civil actions which can be filed and prosecuted independently of the criminal action, namely, those provided in Arts. 32, 33, 34 and 2176 of the Civil Code. 6. Although the criminal and civil actions may be joined in the criminal case, they are distinct from each other. The plaintiffs in the two actions are different.

Thus: even if the accused started serving his sentence within the 15-day period from the promulgation of the judgment of conviction by the lower court, thereby making the judgment against him final, the complainant may, within the 15-day reglementary period, still ask that the civil liability be fixed by the court, if the judgment does not adjudicate any civil liability, as the judgment regarding civil liability has not become final and the court still has jurisdiction to adjudge the civil liability.

7. Rules on Filing Fees:

No filing fees are required for amounts of actual damages.

Exception: criminal action for violation of BP 22 which is deemed to

include the corresponding civil action. The offended party shall, upon the filing of the criminal and civil actions, pay in full the filing fees based on the face value of the check as the actual damages.

Purpose of Exception: to prevent the offended party from using the

prosecutors office and the court as vehicles for recovery of the face value of the check, without paying the corresponding filing fees therefor.

With respect to damages other than actual, if these damages are specified in the complaint or information, the corresponding filing fees should be paid, otherwise, the trial court will not acquire jurisdiction over such other damages. Where moral, exemplary and other damages are not specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the

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trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment. 8. In an appeal of a criminal case: The appellate court may impose additional damages or increase or decrease the amounts of damages upon the accused-appellant. However, additional penalties cannot be imposed upon a co-accused who did not appeal, but modifications of the judgment beneficial to him are considered in his favor. 9. The offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. Where the trial court convicted the accused, but dismissed the civil action instituted therein, the offended party may appeal the dismissal to the CA. 10. Compromise on civil aspect: The offended party may compromise the civil aspect of a crime, provided that it must be entered before or during the litigation, and not after final judgment. A compromise on the civil aspect is valid even if it turns out to be unsatisfactory either to one or both of the parties. 11. Important!: Section 1, Rule 111 now expressly provides that no counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been subject thereof may be litigated in a separate civil action. Reasons: the counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings; the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime. When separate civil action is suspended Take Note: Article 29 of the Civil Code merely emphasizes that a civil action for damages is not precluded by the acquittal of an accused for the same criminal act or omission. It does not state that the remedy can be availed of only in a separate civil action. When civil action may proceed independently 1. Prior reservation is not necessary to file separate civil action under Arts. 32, 33, 34 and 2176 of the Civil Code. The phrase which has been reserved that has caused conflicting rulings in the past has now been deleted. 2. Actions based on quasi-delict may be filed independently of the criminal action regardless of the result of the criminal action, except that a plaintiff cannot recover damages twice for the same act or omission of the defendant. Effect of death of the accused on civil actions 1. After arraignment and during the pendency of the criminal action:

General Rule: death extinguishes the civil liability arising from delict or the offense

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Except: where civil liability is predicated on other sources of obligations such as law, contract, quasi-contract and quasi-delict.

If such civil action which survives is impliedly instituted in the criminal

action, the legal representative or heir of the deceased shall be substituted for the deceased. The criminal case is reduced to a civil action. However, if the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec.16 Rule 3 of the Rules of Court. 2. Before arraignment: The civil action impliedly instituted in the criminal action shall be dismissed without prejudice to the offended partys filing a civil action against the administrator of the estate of the deceased. 3. Pending appeal of his conviction: extinguishes his criminal liability as well as the civil liability based solely thereon. 4. Prior to final judgment: terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed. Judgment in civil action not a bar The judgment in civil actions based on Arts. 32, 33, 34 and 2176 absolving the defendant from civil liability does not bar the criminal action. Prejudicial question 1. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. 2. The suspension of the criminal case due to a prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused. 3. There is no prejudicial question where one case is administrative and the other is civil.

RULE 112 PRELIMINARY INVESTIGATION

Preliminary investigation defined; when required 1. Preliminary investigation is: not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. subject to the requirements of both substantive and procedural due process. The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice and is a substantive right. a personal right and may be waived expressly or by implication. Lack of PI is not a ground to quash or dismiss a complaint or information, nor does it affect the courts jurisdiction. When there is no preliminary investigation, the accused must invoke it at the first opportunity and the

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court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct PI. 2. The refusal of the court to remand the case for PI can be controlled by certiorari and prohibition to prevent trial. Officers authorized to conduct preliminary investigation 1. No longer authorized to conduct PI: By implication, MTC judges in Manila and in chartered cities have not been granted the authority to conduct PI, as the officers authorized to do so are the prosecutors. Judges of RTCs 2. Two types of offenses may be filed in the MTC for preliminary investigation: a case cognizable by the RTC may be filed with the MTC for PI; even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years 2 months and 1 day.

3. Regarding offenses falling within the original jurisdiction of the Sandiganbayan: Prosecutors or municipal trial court judges conducting PI of offenses falling within the original jurisdiction of the Sandiganbayan shall, after their conclusion, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Moreover, the prosecutor or judge cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an information with the Sandiganbayan without being deputized by, and without prior written authority of, the Ombudsman or his deputy.

4. Regarding election offenses: The exclusive jurisdiction of the Comelec to investigate and prosecute election offenses inheres even if the offender is a private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense, namely, an election offense as defined in the Omnibus Election Code and in other election laws, and not the personality of the offender that matters. 5. Regarding the Ombudsman: The power of the Ombudsman to make investigation extends to any illegal act or omission of any public official, whether or not the same is committed in relation to his office. Preliminary investigation by the Ombudsman is limited to cases cognizable by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman. Section 4(d) of Administrative Order No. 07 disallows the filing of a motion to quash or dismiss a complaint filed with the Ombudsman, except on the ground of lack of jurisdiction. Which remedy may an aggrieved party avail of against resolutions of the Ombudsman in criminal or non-administrative cases? The law is silent. Hence, appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of only if there is a statute to that effect.

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However, an aggrieved party is not without remedy, as he can resort to the special civil action of certiorari under Rule 65. The Ombudsman does not have the power: to prosecute before the Sandiganbayan any impeachable officers with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office because by constitutional mandate, they can only be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust to prosecute public officers or employees who have committed election offenses. to file an information for an offense cognizable by the regular courts. 6. Effect of an incomplete PI: does not warrant the quashal of the information does not affect the courts jurisdiction or the validity of the information.

Procedure 1. By reason of the abbreviated nature of PI, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. 2. The accused or respondent in a criminal prosecution may avail himself of discovery remedies either during preliminary investigation or when the information has already been filed in court. 3. A motion to dismiss is now a prohibited pleading during preliminary investigation. 4. The respondent is now required to submit counter-affidavits and other supporting documents relied upon by him for his defense. 5. The respondent now has the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense. Resolution of investigating prosecutor and its review 1. After having filed the information, the prosecutor is called upon to prosecute the case in court. It has been said that at this stage, unlike judges who are mandated to display cold neutrality in hearing cases, the prosecutors are not required to divest themselves of their personal convictions and refrain from exhibiting partiality. But while he may strike hard blows, he is not at liberty to strike foul ones. 2. Effect of exclusion of other persons from the information: If during the trial, evidence is shown that such persons should have been charged, the fact that they were not included in the information does not relieve them of criminal liability, and they can be subsequently prosecuted. The accused who has been charged with the offense is not allowed to escape punishment merely because it develops in the course of the trial that there were other guilty participants in the crime. It does not vitiate the validity of the information. Neither is the same a ground for a motion to quash.

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The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court. If the Secretary reverses the ruling of the prosecutor, the latter has to file the necessary motion to dismiss the complaint or information, the grant or denial of which is subject to the discretion of the trial court.

4. Effect if the information is filed by someone not authorized by law: The court does not acquire jurisdiction. The accuseds failure to assert lack of authority on the part of the prosecutor in filing the information does not constitute a waiver thereof. 5. The prosecutor is required to resolve the complaint based on the evidence presented by the complainant in the event that the respondent cannot be subpoenaed or the respondent, if subpoenaed, does not submit a counter-affidavit within the 10-day period. Resolution of investigating judge and its review Non-judicial function:

When a municipal judge conducts PI, he performs a non-judicial function. Consequently, the findings of the investigating judge are subject to review by the provincial prosecutor whose findings in turn may also be reviewed by the Secretary of Justice in appropriate cases.

When warrant of arrest may issue 1. Invalid: A warrant issued by the judge solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining the existence of probable cause by independently examining sufficient evidence submitted by the parties during the PI 2. Effect of a finding of probable cause: merely binds over the suspect to stand trial. It is not a pronouncement of guilt. 3. What the accused who believes that there is no probable cause to hold him for trial may do: to file with the trial court a motion to dismiss on such ground or for the determination of probable cause.

if the warrant of arrest has been issued, the accused may file a motion to quash the arrest warrant or to recall the same on the ground of lack of probable cause.

4. Where an information has already been filed in court, and the Secretary of Justice reversed the prosecutors finding of probable cause, what should the trial court do upon the prosecutors motion to dismiss? He must make his own assessment of the evidence and not just rely on the conclusion of the prosecutor, otherwise the court becomes a mere rubber stamp. 5. Regarding reinvestigation: Once the complaint or information is filed in court, any motion for reinvestigation is addressed to the sound discretion of the court. While the trial court judge has the power to order the reinvestigation of the case by the prosecutor, he may not, before the prosecutor concluded the

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reinvestigation, recall said order, set the case for arraignment and trial, without gravely abusing his discretion. 6. Municipal judge may issue arrest warrant before conclusion of preliminary investigation if: he finds that probable cause exists and there is a necessity of placing respondent under immediate custody.

7. Important: The rule is now that the investigating judges power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody in order not to frustrate the ends of justice. Thus, even if the judge finds probable cause, he cannot, on such ground alone, issue a warrant of arrest. He must further find there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice. 8. The investigating judge has no power to reduce or change the crime charged in order to justify the grant of bail to the accused. The power belongs to the prosecutor. 9. After the conclusion of his PI, the judge has to transmit to the provincial prosecutor his resolution and entire records of the case, regardless of whether he finds a probable cause or sufficient ground to issue a warrant of arrest. When accused lawfully arrested without warrant 1. General Rule: No complaint or information shall be filed for an offense which is penalized by imprisonment of not less than 4 years, 2 months and 1 day without PI.

Exception: when the accused has been lawfully arrested without warrant, in which case, an inquest must be conducted by an inquest prosecutor who will determine whether his arrest without warrant is lawful. The inquest prosecutor may order the release of the arrested person if he finds no sufficient ground to hold him without prejudice to conducting further investigation, or file complaint or information within the period specified in Art. 125 of the RPC.

2. In case a person is arrested without a warrant, a complaint or information may only be filed after an inquest conducted in accordance with existing rules.

Provided: that in the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

3. Before the filing of a complaint or information, the person arrested without a warrant may ask for a preliminary investigation by a proper officer, but he must sign a waiver of the provisions of Art. 125 of the RPC. 4. If the accused allows himself to be arraigned without asking for a preliminary investigation, he is deemed to have waived the right to such PI. Cases not requiring preliminary investigation nor covered by the Rule on Summary Procedure The respondent or accused is not entitled to preliminary investigation in the following cases: cases governed by the Rules on Summary Procedure; cases where the punishment does not exceed 4 years 2 months and 1 day.

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RULE 113 ARREST

Definition of arrest Application of actual force, manual touching of the body, physical restraint or formal declaration of arrest is not required. Arrest includes submission to the custody of the person making the arrest. Execution of warrant 1. The judge issues a warrant of arrest in 2 instances:

(1) Upon the filing of the information by the prosecutor. In issuing this kind of warrant, the judge does not personally examine the complainant and the witnesses he may produce, but he merely evaluates personally the report and supporting documents and other evidence adduced during the preliminary investigation and submitted to him by the prosecutor, and if he finds probable cause on the basis thereof he issues the warrant for the arrest of the accused. (2) Upon application of a peace officer. In this kind of warrant, the judge must personally examine the applicant and the witnesses he may produce, to find out whether there exists probable cause, otherwise the warrant issued is null and void. He must subject the complainant and the witnesses to searching questions. The reason for this is there is yet no evidence on record upon which he may determine the existence of probable cause.

2. A warrant of arrest has no expiry date. It remains valid until arrest is effected or the warrant is lifted.

However, Sec. 4 of Rule 113 requires the head of the office who applied for warrant to execute the same within 10 days from receipt thereof and for the arresting officer assigned to execute the same to submit, within 10 days from the expiration of the first 10-day period, a report to the judge who issued the warrant. Arrest without warrant; when lawful 1. In a citizens arrest, the person may be arrested and searched of his body and of his personal effects or belongings, for dangerous weapons or anything which may be used as proof of the commission of an offense, without need of a search warrant. 2. Sec. 5(a) refers to arrest in flagrante delicto while Sec. 5(b) refers to hot pursuit. 3. Sec. 5(b) authorizes warrantless arrest when an offense has in fact just been committed. The word just implies immediacy in point of time. 4. Delivery of the detained person to the proper judicial authorities means the filing of the complaint or information with the municipal trial court or with the inquest fiscal or prosecutor who shall then decide either to order the release of the detained person or to file the corresponding information in court. Method of arrest by officer without warrant 1. Custodial investigation

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Involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate. Embraced in custodial investigation: invited for questioning re-enactment

Not embraced in custodial investigation: police line-up ultraviolet ray examination normal audit examination by the COA of the accountability of a public officer

2. When the threat or promise was made by, or in the presence of, a person in authority, who has, OR is supposed by the accused to have power or authority to fulfill the threat or promise, the confession of the accused is inadmissible. 3. Presumption of regularity in the performance of duties: Does not apply during in-custody investigation, nor can it prevail over the constitutional right of the accused to be presumed innocent. 4. The arresting officer may be held civilly liable for damages under Art. 32 of the Civil Code. The very nature of Art. 32 is that the wrong may be civil or criminal. It is not necessary that there should be malice or bad faith. 5. On Civil Procedure:

Section 20 Rule 14 of the 1997 Rules of Civil Procedure provides in part that the inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. Section 8 Rule 15 provides that subject to the provisions of Section 1 Rule 9, a motion attacking a pleading, order, judgment or proceeding shall include all objections then available, and all objections not so included shall be deemed waived. These changes in the 1997 Rules of Civil Procedure are applicable to criminal cases as Section 3 Rule 1 thereof provides that these rules shall govern the procedure to be observed in actions, civil or criminal, and special proceedings. Moreover, the omnibus motion rule applies to motions to quash.

6. Section 26 of Rule 114 of the New Rules of Criminal Procedure provides that bail is not a bar to objection on illegal arrest, lack of or irregular preliminary investigation. This is an abandonment of the Cojuangco, Jr. v. Sandiganbayan ruling.

RULE 114 BAIL

Bail defined 1. Purpose:

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to honor the presumption of innocence until his guilt is proven beyond reasonable doubt to enable him to prepare his defense without being subject to punishment prior to conviction.

2. Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal. 3. As bail is intended to obtain or secure ones provisional liberty, the same cannot be posted before custody over him has been acquired by the court.

Rationale: it discourages and prevents resort to the pernicious practice whereby an accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements thereof.

Conditions of the bail; requirements 1. The suretys liability covers all these 3 stages: trial promulgation the execution of the sentence. Unless the court directs otherwise, the bail bond posted by an accused remains in force at all stages of the case until its final determination. 2. If the accused presents his notice of appeal, the trial court will order the accused to be taken into custody in the absence of a new bail bond on appeal duly approved by the court. If the accused does not appeal, the bondsman must produce the accused on the 15th day from promulgation of sentence for service of sentence. Bail, as a matter of right; exception 1. When bail is a matter of right: before or after conviction by the MTC before conviction, for all offenses punishable by lower than reclusion perpetua prosecution does not have the right to oppose or to present evidence for its denial. 2. When bail is a matter of discretion: before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment

after conviction by the RTC of a non-capital offense prosecution is entitled to present evidence for its denial.

3. Right to bail may be waived. 4. Bail in court-martial offenses: The right to bail of an accused military personnel triable by courts-martial does not exist, as an exception to the general rule that an accused is entitled to bail except in a capital offense where the evidence of guilt is strong.

Rationale: The unique structure of the military justifies exempting military men
from the constitutional coverage on the right to bail.

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5. Notice of hearing required: Whether bail is a matter of right or of discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal or at least he must be asked for his recommendation because in fixing the amount of bail, the judge is required to take into account a number of factors such as the applicants character and reputation, forfeiture of other bonds or whether he is a fugitive from justice. 6. Summary of the evidence for the prosecution The courts order granting or refusing bail must contain a summary of the evidence for the prosecution, otherwise the order granting or denying bail may be invalidated because the summary of the evidence for the prosecution which contains the judges evaluation of the evidence may be considered as an aspect of procedural due process for both the prosecution and the defense. 7. It would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed. Bail, when discretionary 1. Not entitled to bail: An accused who has been convicted of an offense which carries a penalty of more than 20 years is not entitled to bail during the pendency of his appeal. An accused who is convicted of a capital offense is no longer entitled to bail on appeal since his conviction imports that the evidence of guilt is strong.

2. Trial court may grant bail before appeal is perfected Whether bail is a matter of right or discretion, the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal, appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof.

However if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Even if there is no notice of appeal, if the decision of the TC convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

3. After appeal is perfected, the trial court loses jurisdiction to grant bail and to approve bail bond.

However, the accused may apply for bail or provisional liberty with the appellate court.

Capital offense defined The capital nature of an offense is determined by the penalty prescribed by law, and not by the penalty that may be imposed after trial and on the basis of the evidence adduced and the presence of aggravating or mitigating circumstance. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable 1. Distinction between life imprisonment and reclusion perpetua, insofar as bail is concerned, is not important.

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Why? because in both cases, the grant of bail before conviction by the trial court is a matter of discretion when evidence of guilt is strong.

2. The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt is strong. 3. Meaning of conviction The word conviction in Section 13, Article III of the 1987 Constitution refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court.

Burden of proof in bail application 1. Evidence of guilt in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. 2. Regarding minors charged with a capital offense:

If the person charged with a capital offense, such as murder, admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death.

3. Duty of judge to conduct hearing:

Where the prosecution agrees with the accuseds application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should make a finding that the evidence against the accused is strong.

Corporate surety The term of the bail bond is not dependent upon faithful payment of the bond premium. Justification of sureties Before accepting a surety or bail bond, the following requisites must be complied with: photographs of the accused; affidavit of justification; clearance from the Supreme Court; certificate of compliance with Circular No. 66 dated September 19, 1996; authority of the agent; and current certificate of authority issued by the Insurance Commissioner with a financial statement showing the maximum underwriting capacity of the surety company. Deposit of cash as bail

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The trial judge has no authority to strictly require that only cash bond, instead of a surety bond, be deposited for the provisional release of the accused. Recognizance 1. The release of the accused may be on his own recognizance, which means that he has become his own jailer. It may be to a responsible person. Persons charged with offenses falling under the Rule on Summary Procedure may be released either on bail or on recognizance of a responsible citizen acceptable to the court. 2. In Espiritu v. Jovellanos (280 SCRA 579, 1997), the Court held that the release on recognizance of any person under detention may be ordered only by a court and only in the following cases: when the offense charged is for violation of an ordinance, a light, or a criminal offense, the imposable penalty of which does not exceed 6 months imprisonment and/or P2000 fine, under the circumstances provided in RA No. 6036 where a person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance, in which case the court, in its discretion, may allow his release on his own recognizance where the accused has applied for probation, pending resolution of the case but no bail was filed or the accused is incapable of filing one in case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under circumstances envisaged in PD No. 603 as amended.

Bail, where filed A judge presiding in one branch has no power to grant bail to an accused who is being tried in another branch presided by another judge who is not absent or unavailable, and his act of releasing him on bail constitutes ignorance of law which subjects him to disciplinary sanction. Forfeiture of bail 1. When bail bond forfeited: only in instances where the presence of the accused is specifically required by the court or the Rules of Court and, despite due notice to the bondsmen to produce him before the court on a given date, the accused fails to appear in person as so required.

2. To justify exemption from liability on a bail bond or reduction thereof, two requisites must be satisfied: production or surrender of the person of the accused within 30 days from notice of the order of the court to produce the body of the accused or giving reasons for its non-production satisfactory explanations for the non-appearance of the accused when first required by the trial court to appear. Compliance with the first requisite without meeting the second requisite will not justify non-forfeiture of a bail bond or reduction of liability. Arrest of accused out on bail

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1. The bondsmen who put the bail bond for the accused become the jailers and they or the police officer to whom authority is endorsed may arrest the accused for the purpose of surrendering him to the court. The accused cannot leave the country without the permission of the bondsmen and the court. 2. Regarding hold-departure orders:

Supreme Court Circular No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the RTCs in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue holddeparture orders, following the maxim, express mention implies the exclusion. Neither does he have authority to cancel one which he issued.

No bail after final judgment; exception General Rule: no bail shall be allowed after the judgment has become final, as what is left is for him to serve the sentence.

Exception: when he has applied for probation before commencing to serve sentence, the penalty and the offense being within the purview of the Probation Law. Exception to the exception: the accused shall not be allowed to be released on bail after he has commenced to serve his sentence.

Bail is not a bar to objections on illegal arrest, lack of or irregular preliminary investigation Important: An application for admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall observe the matter as early as practicable but not later than the start of the trial of the case.

RULE 115 RIGHTS OF ACCUSED

Rights of the accused at the trial 1. Is the constitutional presumption of innocence violated by the presumption of guilt established by law arising from certain facts proved and by shifting to the accused the burden of proof to show his innocence? No. The state having the right to declare what acts are criminal, within certain defined limitations, has a right to specify what act or acts shall constitute a crime, as well as what proof shall constitute prima facie evidence of guilt. The constitutional presumption of innocence will not apply as long as there is some rational connection between the fact proved and the ultimate fact presumed, and the inference of one fact from proof of another shall not be so unreasonable as to be purely arbitrary. 2. Equipoise rule:

If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction of the accused. Hence, where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt the scales in favor of the accused and he must be acquitted.

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3. If the judgment of conviction had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by counsel, where he has been denied the right to counsel during the hearing. 4. Where an accused was represented in the RTC by a person who claimed to be a lawyer and was thereafter convicted, but it was later discovered that his counsel was not really a lawyer, he is entitled to have his conviction set aside and a new trial undertaken. 5. Transactional and Use immunity distinguished:

Transactional immunity is broader in the scope of its application. By its grant, a witness can no longer be prosecuted for any offense whatsoever arising out of the act or transaction. In contrast, by the grant of use-and-derivative-use immunity, a witness is only assured that his or her particular testimony and evidence derived from it will not be used against him or her in a subsequent prosecution.

6. The right against self-incrimination is a protection only against testimonial compulsion. 7. The accuseds right to meet the witnesses face to face is limited to proceedings before the trial court, during trial, and not during custodial or preliminary investigation. 8. Requests by a party for the issuance of subpoenas do not require notice to other parties to the action. 9. The sanctions of arrest and contempt in respect to disobedience to subpoena are not applicable to a witness who resides more than 100 kilometers from the residence to the place where he is to testify, or if he is a detention prisoner no permission of the court in which his case is pending was obtained. 10. Public trial should not be confused with trial by publicity which is proscribed. 11. Requisites for valid waiver of right: existence of right knowledge of existence thereof intention to relinquish such right, which must be shown clearly and convincingly where the law or the Constitution so provides, the waiver must be with the assistance of counsel, to be valid.

RULE 116 ARRAIGNMENT AND PLEA

Arraignment and plea; how made 1. Definition: Arraignment is the stage where the issues are joined in criminal action and without which the proceedings cannot advance further or, if held, will otherwise be void. 2. No trial in absentia can be validly held without first arraigning the accused, and he cannot be arraigned without his personal appearance in court. 3. Presence of offended party required

The presence of the offended party is now required at the arraignment and also to discuss the matter of accuseds civil liability. In case the offended party fails to

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appear despite due notice, the trial court may allow the accused to plead guilty to a lower offense with solely the conformity of the trial prosecutor. 4. Accused under preventive detention

While RA 8493, or the Speedy Trial Act, provides that the accused shall be arraigned within 30 days from the time a court acquires jurisdiction over his person, Rule 116 section 1(e) provides for a shorter time within which an accused who is under preventive detention should be arraigned. When an accused is detained, his case should be raffled within 3 days from the filing of the information or complaint against him, and the judge to whom his case is raffled shall have him arraigned within 10 days from receipt by the judge of the records of the case. The pre-trial conference shall be held within 10 days after the arraignment.

5. The arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided by special law or by SC Circular. Certain laws and SC Circulars provide for a shorter time within which the accused should be arraigned:

RA 4908 in criminal cases where the complainant is about to depart from

the Philippines with no definite date of return, the accused should be arraigned without delay and his trial should commence within 3 days from the arraignment and that no postponement of the initial hearing should be granted except on the ground of illness on the part of the accused or other grounds beyond the control of the court.

RA 7610 (Child Abuse Act) the trial shall be commenced within 3 days from
arraignment Dangerous Drugs Law

SC AO 104-96, i.e., heinous crimes, violations of the Intellectual Property

Rights Law these cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case Plea of guilty to a lesser offense 1. The new rule provides that the accused may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged, and deleted the phrase, regardless of whether or not it is necessarily included in the crime charged, or is cognizable by a court of lesser jurisdiction than the trial court. It should be noted, however, that the amendment did not say that an accused may be allowed to plead to a lesser offense only if the same is necessarily included in the offense charged. The provision employs the word may, which is permissive and implies that the court may still allow an accused to plead guilty to a lesser offense, even if the latter is not included in the offense charged.

2. Consent of offended party required:

The consent of the offended party to allowing the accused to plead guilty to a lesser offense is necessary. It has been held that if the plea of guilty to a lesser offense is made without the consent of the prosecutor and the offended party, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former information.

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3. Change of plea

After the prosecution has rested its case, a change of plea to a lesser offense may be granted by the judge, with the approval of the prosecutor and the offended party and only when the prosecution does not have sufficient evidence to establish the guilt of the crime charged. The judge cannot on its own grant the change of plea.

Plea of guilty to capital offense; reception of evidence 1. An improvident plea means a plea without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information or advice. 2. Conviction in a capital offense cannot rest alone on a plea of guilty, a free and intelligent plea. It is mandatory for the trial court to require the prosecution to present its evidence and, if the accused so desires, to allow him to submit his evidence. This is so even if the accused formally manifests that he waives presentation of evidence by the prosecution. Plea of guilty to non-capital offense; reception of evidence, discretionary 1. What a plea of guilty includes: The plea of guilty covers both the crime as well as its attendant circumstances alleged in the complaint or information, qualifying and/or aggravating the crime. Such plea removes the necessity of presenting further evidence and for all intents and purposes the case is deemed tried on its merits and submitted for decision. It leaves the court with no alternative but to impose the penalty prescribed by law.

2. Mitigating circumstances: The trial court may allow an accused to plead guilty and at the same time allow him to prove other mitigating circumstances. However, if what the accused would prove is an exempting circumstance, which would amount to a withdrawal of his plea of not guilty, the trial court may not allow him to take the witness stand.

3. If the accused is permitted to present evidence after his plea of guilty to a non-capital offense and such shows that the accused is not guilty of the crime charged, the accused must be acquitted, for there is no rule which provides that simply because the accused pleaded guilty to the charge that his conviction automatically follows. Additional evidence independent of the plea may be considered to convince the judge that it was intelligently made. Withdrawal of improvident plea of guilty 1. When it may be done: at any time before the judgment of conviction becomes final. 2. Effect: change of the accuseds plea from guilty to that of not guilty is the setting aside of the judgment of conviction and the re-opening of the case for new trial. 3. The withdrawal must at least have a rational basis. The accused should state that he has a meritorious defense to the charge. The motion should be set for hearing and the prosecution heard thereon.

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Time for counsel de officio to prepare Express demand: Counsel for the accused must expressly demand the right to be given reasonable time to consult with the accused. Only when so demanded does denial thereof constitute reversible error and a ground for new trial.

Bill of particulars 1. Rule 12 of Civil Procedure on bill of particulars is applicable in criminal proceedings. 2. It is not the office of the bill of particulars to: Supply material allegation necessary to the validity of a pleading Change a cause of action or defense stated in the pleading, or to state a cause of action or defense other than the one stated. Set forth the pleaders theory of his cause of action or a rule of evidence on which he intends to rely Furnish evidentiary information whether such information consists of evidence which the pleader proposes to introduce or of facts which constitute a defense or offset for the other party or which will enable the opposite party to establish an affirmative defense not yet pleaded.

3. The filing of a motion for bill of particulars suspends the period to file a responsive pleading. If the motion is granted, the moving party has the remaining period or at least 5 days to file his answer from service of the bill of particulars. If the motion is denied, he has the same period to file his responsive pleading from receipt of the order denying the motion.

Suspension of arraignment Tests to determine insanity: the test of cognition (which is used in this jurisdiction) or the complete deprivation of intelligence in committing the criminal act the test of volition or that there be a total deprivation of freedom of the will.

RULE 117 MOTION TO QUASH

Time to move to quash 1. Quashal and nolle prosequi distinguished: The quashal of complaint or information is different from a nolle prosequi, although both have one result, which is the dismissal of the case. A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused. A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of its judicial discretion. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution. It is not

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an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense. 2. General Rule: A MTQ may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court.

Exception: under the circumstances mentioned in Sec. 9, Rule 117, which adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground that the facts alleged in the information charge no offense, that the offense or penalty has prescribed, or that the doctrine of double jeopardy precludes the filing of the information.

3. The right to file a MTQ belongs only to the accused. There is nothing in the rules which authorizes the court or judge to motu propio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in said order. Form and contents Factual and legal grounds must be stated This provision requiring that the factual and legal grounds be stated in the motion allows that facts outside the information itself may be introduced to prove any of the grounds of a MTQ, enumerated in Sec. 3. Such inquiry into outside facts may also be allowed even when the ground invoked is that the allegation in the information does not constitute the offense charged. Grounds 1. In a MTQ based on the ground that the facts alleged in the information do not constitute the offense charged, the trial court should limit its inquiry to: the averments in the information, as hypothetically admitted; facts admitted by the prosecution; and indubitable facts.

2. Where ground for MTQ is illegal arrest: If the accused believes that the arrest, with or without warrant, is illegal, he should move to quash the information on such ground, along with other grounds as otherwise such other grounds will be deemed waived if not included in the MTQ, except no offense charged, lack of jurisdiction over the offense, prescription of offense or liability, or double jeopardy. 3. The prosecutor who signed the information must have territorial jurisdiction to conduct the preliminary investigation of the offense, otherwise the information filed by him would be invalid and can be quashed on such ground. 4. The fact that the allegations in the complaint or information are vague or broad, is not generally a ground for a motion to quash, the remedy being to file a motion for bill of particulars. 6. The period of prescription of violation of special laws or offenses not penalized by the Revised Penal Code but by special laws, and municipal ordinances is governed by Act No. 3326 which took effect on December 4, 1926. 7. Doctrine of Presidential Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto, 317 SCRA 272 (1999): If the commission of the crime is known, the prescriptive period shall commence to run on the day it was committed, otherwise on the date of its discovery.

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In the very nature of things, acts made criminal by special laws are frequently not immoral or obviously immoral in themselves. For this reason, the applicable statute requires that if the violation of the special law is not known at the time, the prescriptive period begins to run only from the discovery thereof, that is, discovery of the unlawful nature of the constitutive act or acts, in connection with which there should be evidence.

8. Regarding prescriptive periods:

Where an accused has been found to have committed a lesser offense includible within the offense charged, he cannot be convicted of the lesser offense if it has already prescribed. To hold otherwise would be to sanction the circumvention of the law on prescription by the simple expedient of accusing the defendant of the graver offense. The rule that if the last day falls on a Sunday or a holiday, the act can still be done the following day does not apply to the computation of the period of prescription of a crime, in which the rule is that if the last day in the period of prescription of a felony falls on a Sunday or legal holiday, the information concerning said felony cannot be filed on the next working day, as the offense has by then already prescribed. The period of a continuing crimes prescription is counted from the latest or last act constituting the series of acts continuing the single crime. The prescriptive period of offenses penalized by special laws and ordinances is interrupted only by the filing of complaint or information in court. This is without distinction as to whether the cases are covered by the Rule on Summary Procedure. The period of prescription does not run when the offender is absent from the Philippines.

9. Regarding pardon:

Unless grounded on the persons innocence, a pardon by the President cannot bring back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his eligibility for appointment to public office which was forfeited by reason of the conviction of the offense. But since pardon does not necessarily result in automatic reinstatement because the offender has to apply for reappointment, he is not entitled to back wages.

10. Contentious motions:

Contentious motions in criminal cases must comply with the requirements that they be set for hearing at a specified date with prior notice to the adverse party or the prosecutor at least 3 days before the hearing, the notice of hearing should be addressed to adverse counsel or the prosecutor, and proof of service of the motion upon the adverse party or prosecutor at least 3 days prior to such hearing. This is mandatory.

11. Remedy of aggrieved party While an order granting a motion to quash, unlike a denial thereof, is appealable, as the proper remedy, this rule does not preclude the aggrieved party from filing a special civil action of certiorari, as a substitute for the remedy of a lost appeal, where there is a patent, capricious and whimsical exercise of discretion by a trial judge or where an appeal will not promptly relieve the aggrieved party from the

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injurious effect of the disputed order, as in the quashal of an information for incomplete preliminary investigation. Amendment of complaint or information 1. An information does not charge an offense if one or more of its essential elements have not been alleged therein. The amendment of the information to allege the element(s) not stated in the information is a material amendment, but the same can be done because the accused has not been arraigned, nor can a dismissal of the information on such ground put the accused twice in jeopardy. 2. A good tactical move may require that the accused should first plead to the information and thereafter file a motion to quash either before or after the prosecution has presented its evidence. Pursuant to Sec. 9 of Rule 117, an accused, even after he has entered his plea, may still move to quash the information on the ground that it does not charge an offense. If the case is dismissed on such ground, the prosecution may not be permitted to correct the information because the accused has already pleaded and to allow such amendment may place the accused twice in jeopardy. Former conviction or acquittal; double jeopardy 1. Double jeopardy will apply... when the complaint or information is dismissed by a court of competent jurisdiction after the prosecution has presented its evidence even if the dismissal is in the mistaken ground of lack of jurisdiction. even if the dismissal is made with the express consent of the accused, or upon his own motion, if it is predicated on insufficiency of the prosecution evidence or denial of the right to a speedy trial. In both instances, the dismissal has the effect of acquittal.

2. Double jeopardy will not apply in case of a conviction of a crime under a special law, which also constitutes an offense under the Revised Penal Code. Reason: the former is malum prohibitum, while the latter is malum in se. Thus, it has been held that conviction for the crime of illegal recruitment under the Labor Code does not preclude punishment for the offense of estafa under the RPC. where 2 informations are filed charging the same accused with 2 different elements, as in the issuance of bouncing check for estafa under the RPC and violation of BP 22. where after trial of a charge of serious physical injuries, the municipal trial court dismissed the case to give way to the filing of a complaint for frustrated murder, as it believed that what was proved was frustrated murder, the dismissal was null and void because the trial court should have rendered judgment based on the charge alleged in the information and the evidence adduced during the trial. Since the dismissal was null and void, it did not place the accused twice in jeopardy for the continuation of the proceedings for serious physical injuries. where the accused has been sentenced to suffer a wrong penalty by the trial court, the petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed does not place the accused twice in jeopardy because it would shorten the penalty and is favorable to the accused. where one case is administrative in nature and the other criminal. Neither does it apply in preliminary investigations.

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REMEDIAL LAW (CRIMINAL PROCEDURE) REVIEWER

Provisional dismissal 1. Important!: A trial court may not order a provisional dismissal of the case without the express consent of the accused and prior notice to the offended party. The trial court, cannot, on its own, provisionally dismiss the case, nor can it dismiss it provisionally without the express consent of the prosecutor. 2. Important!: The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount, or both, shall become permanent 1 year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than 6 years, their provisional dismissal shall become permanent 2 years after issuance of the order without the case having been revived. Failure to move to quash or to allege any ground therefor The accused may still file a motion to dismiss the information based on the following grounds even if he has already pleaded not guilty: the information charges no offense; the trial court has no jurisdiction over the offense charged; the penalty or the offense has been extinguished; and double jeopardy has attached.

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