CRIMINAL PROCEDUREA

ADRIENNE O. ESPARES ----- GENERAL MATTERS -----

JURISDICTION OVER THESUBJECT MATTERJURISDICTION OVER THEPERSON OF THE ACCUSED

It is the authority to hear and determine a particular criminal case.It requires that person charged be arrested, or voluntarily submitted.

It is derived from law.It may be acquired by consent of accused, or by waiver of objections.

An objection that court has no jurisdiction may be made at any stage; right to object can never be waived.If accused fails to object in time, it is waived.

----- JURISDICTION OF CRIMINAL COURTS -----

MTCMeTCMCTC Imprisonment: 6 years & less Fine: P4,000 or less; Criminal cases of government officials, whose imprisonment or fine is same as above, and lower than SG 27; Damage to property through criminal negligence; Summary Procedure (no hearing; only filing of pleadings) for violations of: traffic laws; rental law; municipal/city ordinance; and other criminal cases where penalty is: Imprisonment of not exceeding 6 months; or of fine not exceeding P10,000; and BP 22 cases.

RTC Imprisonment: more than 6 years Fine: more than P4,000; Criminal cases of government officials , whose imprisonment or fine is same as above, and lower than SG 27; RA 9165; Libel; Intellectual Property; Election criminal cases; and Appellate jurisdiction over all cases decided by the MTC, MeTC, and MCTC.

Take Note: Jurisdiction over Complex Crimes Jurisdiction is with the trial court having the jurisdiction to impose the maximum and most serious penalty imposable. Jurisdiction over Continuing Crimes Courts of territories where the essential ingredients took place have concurrent jurisdiction, but the court which first acquires jurisdiction excludes other courts. (ex. Estafa, Libel) Jurisdiction over crimes punishable by Destierro MTC Habitual Delinquency = not considered in determining jurisdiction because it is not a crime. RTC can issue Hold Departure Orders (HDO), while MTC cannot HDO one cannot leave Watch list Order one can leave Look-out Order one can be arrested to aid the authorities to enforce the law

Officials covered: SG 27, and higher Provincial and officials, including Sanggunian and Department Heads Officials of diplomatic service: Consul and higher Philippine Army and Air Force Colonels, Naval Captains, and higher ranks PNP: Provincial Director and Senior Superintendent, or higher Prosecutors: City/Provincial President /Directors /Trustees /Managers of GOCC, state universities or educational institutions/foundations, including student regents Members and officials of Congress: SG 27 and up Members of the Judiciary, without prejudice to Constitutional provisions Chairmen and members of Constitutional Commissions, without prejudice to Constitutional provisions

Sandiganbayan Anti-Graft and Corrupt Practices Act; Offenses/Felonies committed by public officials and employees, simple/complexed, in relation to their office (if absent or if not alleged, the crime is with the regular courts); Bribery, Corruption of Public Officials; Marcos Ill-Gotten Wealth; Violation of Code of Conduct and Ethical Standards; Plunder Law; Anti-Money Laundering, when committed by a public officer; and Gift-giving Decree.

EXEMPTIONS: Election offenses RTC has jurisdiction even if committed by public officials with SG 27, AND in relation to their office Court Martial cases

Take Note: If public officer is not SG 27 but the office was a constitutive element of the offense, regular courts have jurisdiction subject to appeal before the Sandiganbayan. Before the Sandiganbayan, the extent of participation (principal, accomplice, or accessory) does not matter. As long as one of the accused is under the jurisdiction of the SB, even if the other is not a public officer, both can be charged before the SB.

Ombudsman Malfeasance/Misfeasance or omission by a public officer

Take Note: The crime need not be related to official duties. Mere fact that one is a public officer is enough for OMB to exercise jurisdiction. OMB is not a court; it is only an investigative body. It can dismiss a complaint outright. It can file an Information even if there is a pending Motion for Reconsideration. It has primary jurisdiction over cases cognizable by the Sandiganbayan. It can take over at any stage of the investigation by the DOJ. The Office of the Special Prosecutor is under the OMBs authority.

Family Courts Accused is below 18 years old, but not less than 9 years old. Victim is a minor at the time of the commission of the crime, PROVIDED: If the minor is guilty, the sentence shall be suspended without a need of an application.

Court of Tax Appeals Criminal violations of the NIRC, or of the Tariff and Customs Code. Principal amount of taxes and fees, exclusive of charges and penalties, is less than 1M. If no specified amount, jurisdiction is with regular courts; CTA shall only be appellate. Appellate jurisdiction: RTC (original jurisdiction); Petition for Review of RTCs order

----- REQUISITES FOR A VALID EXERCISE OF CRIMINAL JURISDICTION ----

JURISDICTION OVER THE SUBJECT MATTERJURISDICTION OVER THE TERRITORYJURISDICTION OVER THE PERSON OF THE ACCUSED

Conferred: By law, not by the Rules

Determined: By allegations in the Complaint or InformationThe offense or any of its elements should take place within the territorial jurisdiction of the court.

EXCEPTIONS: Transitory or Continuing offenses: on a railroad train, aircraft, public/private vehicle in the course of its trip court of municipality/city where it passed, including place of departure and arrival on board a vessel in the course of its voyage court of the first port of entry or where it passed Art.2 (RPC) where the action is first filed Piracy anywhere Libel SC has the power to change the venue of trial to avoid miscarriage of justice BP 22 cases SandiganbayanIt is acquired by warrant of arrest, or voluntary submission.

It cannot be fixed by the parties.It cannot be waived.GENERAL RULE: Seeking for an affirmative relief is considered submission to the jurisdiction of the court. Examples: filing a MTQ appearing for arraignment participating in the trial posting bailEXCEPTION: Questioning courts jurisdiction is not voluntary appearance.

Applicable Statute: Law in force at the time of institution of the action

To determine jurisdiction, consider the imposable penalty, NOT the actual penalty.

GENERAL RULE: Jurisdiction once vested cannot be withdrawnEXCEPTION: If the statute expressly so provides

GENERAL RULE: Question of jurisdiction may be raised at any stageEXCEPTION: Estoppel by laches

----- PROSECUTION OF OFFENSES -----

INSTITUTION OF CRIMINAL ACTIONS If Preliminary Investigation (PI) is required: By filing a complaint with the proper officer. PI is required for offenses where the penalty prescribed by law is at least 4 years, 2 months, and 1 day, or prision correccional in its medium, without regard to fine. Who conducts PI: Prosecutor; or Ombudsman Take Note: An MTC Judge cannot. For all other offenses: By filing a complaint with the office of the Prosecutor, or Information directly with the MTC/MCTC.

METRO MANILA / CHARTERED CITIESOUTSIDEMETRO MANILA

Requiring PI (at least 4 years, 2 months, and 1 day)ProsecutorProsecutor

Not requiring PIProsecutorProvincial Prosecutor/ MTC

Falling under the Rules on Summary ProcedureProsecutorProvincial Prosecutor/ MTC

Take Note: To determine jurisdiction, do not distinguish between Metro Manila and outside Metro Manila as regards the filing of civil cases. It is only for filing of a criminal case that you must distinguish.

Effects of institution of a criminal action:It interrupts the running of the prescriptive period unless otherwise provided by special laws.

FOR OFFENSES PENALIZEDBY SPECIAL LAWSIF UNDER MEDIATION/CONCILIATION/ARBITRATION WITH THE LUPON

It is the filing of a Complaint/Information in court that interrupts the prescriptive period. It is not the filing in the proper officer for the conduct of a PI.The prescriptive period is suspended from the time of the filing of the Complaint with the Punong Barangay.

The suspension shall not exceed 60 days.

Remedies of offended party if the prosecutor refuses to file an information: Mandamus if there is grave abuse of discretion New Complaint if there is no double jeopardy Take up the matter with the Secretary of Justice File administrative charges against the erring prosecutor File a criminal action against the prosecutor for negligence to prosecute or tolerance of the crime File a civil action for damages for failure to render service Ask for a Special Prosecutor

May an injunction be issued to restrain criminal prosecution?GENERAL RULE: NoEXCEPTIONS: To protect the constitutional rights of the accused. For orderly administration of justice or to avoid oppression or multiplicity of actions. There is a prejudicial question which is subjudice. Acts of officer are without or in excess of authority. Prosecution is under an invalid law, ordinance, or regulation. Double jeopardy is clearly apparent. The court has no jurisdiction over the offense. It is a case of persecution rather than prosecution. The charges are false. There is no prima facie case and a Motion to Quash on that ground is denied. To prevent the threatened unlawful arrest of petitioners.

COMPLAINTINFORMATION

It is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or public officer charged with the enforcement of the law violated.It is an accusation in writing charging a person with an offense, subscribed by the Prosecutor and filed with the court.

It is filed in court, or in the Prosecutors office.It is filed with the court.

It is under oath.It need not be under oath.

It usually refers to private crimes.It usually refers to public crimes.

Who can file? Offended party; Any peace officer; or Other public officer charged with the enforcement of the law violated.Who can file? City/Provincial Prosecutor and their assistants; or Duly appointed Special Investigators.

Take Note:Want of an oath is a mere defect of form; it does not affect the substantial rights of the defendant.Take Note: Prosecution in the RTC is always commenced by an Information, except: Crimes against chastity; and Defamations. An Information not properly signed cannot be cured by silence, acquiescence or even by express consent.

SUFFICIENCY OF COMPLAINT OR INFORMATION Name of the accused (e.g. nickname, John Doe, or Jane Doe). Designation of the offense. Act/Omission complained of. Name of the offended party. Approximate date of commission of offense. Place of commission.

GENERAL RULE: A defective Information cannot support a judgment of conviction.EXCEPTION: If the defect was cured by evidence during trial and no objection was raised.

Take Note: Non-inclusion of eyewitness in the Information does not preclude the Prosecutor from presenting them during trial. Failure to allege the time of commission, the remedy is to file a Motion for Bill of Particulars.

WHO MUST PROSECUTE CRIMINAL ACTIONSAll criminal actions commenced by a Complaint or Information shall beprosecuted under the direction and control of the Prosecutor.

Take Note: Once a case is already filed in court, it can no longer be withdrawn or dismissed without courts approval.

Conditions for a private prosecutor to prosecute a criminal action: The Public Prosecutor has a heavy work schedule, or there is no Public Prosecutor. The Private Prosecutor is authorized in writing. The authority of the Private Prosecutor must be approved by the court. The Private Prosecutor shall continue to prosecute the case until the end. The withdrawal or revocation must be approved by the court.

Take Note: It is only the Solicitor General who may bring or defend actions in behalf of the Republic, except: The prosecution is remiss, and The private offended party questions the civil aspect.

WITHIN THE CONTROL AND DISCRETION OF THE PROSECUTORWITHIN THE CONTROL OF THE COURT AFTER THE CASE IS FILED

What case to file; Whom to prosecute; Manner of prosecution; Right to withdraw an Information before the arraignment even without notice and hearing. Suspension of arraignment; Reinvestigation; Prosecution by fiscal; Dismissal of the case; Downgrading of offense, or dropping of accused even before plea.

Take Note: The Prosecutor who conducted the PI will not be the same Prosecutor who will prosecute the case. If the Prosecutor is absent, the hearing of the case will be cancelled.

CRIMES THAT CANNOT BE PROSECUTED DE OFFICIO (PRIVATE CRIMES)

Private crimes cannot be prosecuted, except upon a Complaint filed by the offended party.

WHO MAY PROSECUTEWHO CAN PARDON OR CONSENT

Concubinage and Adultery Only by the offended spouse. If divorced, not anymore. Only by the offended spouse to both offenders, express or implied.

Seduction, Abduction, and Acts of Lasciviousness Exclusively and successively by: Offended woman; Parents, grandparents or legal/judicial guardians, if offended party is incompetent or incapable of doing so; State. Offended minor if with sufficient discretion, if she has no parents or accused is her father and her mother is dead. Only by express pardon.

Defamation Only by parties defamed.

GENERAL RULE: Pardon should be before filing of the criminal complaint.EXCEPTION: Marriage between the offender and the offended party.

Take Note: Subsequent marriage extinguishes the criminal liability of the offender, together with the co-principals, accomplices, and accessories.EXCEPT: Marriage was invalid, or contracted in bad faith; Private libel; or Multiple rape. The acquittal or death of one of the accused in Adultery will not bar the prosecution of the other accused.HOWEVER: If the offended spouse died before the filing of the complaint for Adultery= it bars further prosecution. If offended spouse died after the filing of the complaint = it will not bar further prosecution. Desistance of the complainant= it will not bar the prosecution as long as the action has been instituted, but it is a waiver to pursue civil indemnity.

DESIGNATION OF OFFENSE It is the statement of the acts or omissions constituting the offense. Whenever possible, the designation given by the statute, or section of the statute. Specific qualifying and aggravating circumstances = cannot be appreciated, even if proved, unless alleged in the Information. Mitigating circumstances need not be alleged.Take Note: Allegations prevail over the designation of the offense in the Information. Accused may be convicted of a crime more serious than that named in the title if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence.

CAUSE OF THE ACCUSATIONGENERAL RULE: Accused cannot be convicted of an offense, unless it is clearly charged in the Complaint or Information.EXCEPTION: There is waiver.

Take Note: Failure to allege aggravating circumstance cannot be cured by an amendment of the Complaint or Information after the accused entered his plea.

DUPLICITY OF THE OFFENSE Joinder of two or more separate and distinct or different offenses. Remedy: Motion to Quash filed before the arraignment, otherwise, there is waiver and the accused may be found guilty of as many offenses as those charged and proved during the trial.

GENERAL RULE: A Complaint or Information must charge only one offense.EXCEPTIONS: Complex crimes; Special complex crimes; Continuous crimes or delito continuado; Crimes that can be committed in various modes; and Crimes of which another offense is an ingredient.Take Note: Mala in se felonies cannot absorb mala prohibita crimes.

AMENDMENT OR SUBSTITUTIONAMENDMENT change in either the form or substance of the same offense in the Information. Kinds: - Formal; or - Substantial.Take Note: In civil cases, amendment is done before an Answer is filed, while here in criminal cases, the reckoning period is before or after plea.RULES IN AMENDMENT

BEFORE PLEAAFTER PLEA

Amendment, formal or substantial, may be made without leave of court.

Only formal amendment can be made.

EXCEPT: Substantial amendment can be made if it is beneficial to the accused.

Requirements: Upon motion by the prosecutor; With notice to the offended party; and With leave of court.Requirements: With leave of court; and Amendment is not prejudicial to the rights of the accused.

Example: Amendment which downgrades the nature of the offense charged, or excludes any accused.

Take Note: An Information which is void ab initio cannot be amended. Since the exclusion happens before plea, there is no double jeopardy. As a result, the accused can still be charged at a later time.Take Note: Doctrine of Supervening Event (the nature of the crime charged is changed or upgraded to a higher crime) amendment is necessary but there is a need for another arraignment of the accused under the amended Information. Substantial amendment in the Information is generally not allowed after plea because: it violates the right of the accused to be informed of the nature and cause of the accusation against him; and it violates the rule on double jeopardy.

Take Note: In substantial amendment = the original Information will be dismissed. In formal amendment = no need for the dismissal of the original Information.

Requisites of Double Jeopardy: Complaint or Information; Valid plea entered; Final judgment, or dismissal; and Subsequent Complaint or Information is filed for: Same offense; or Attempt to commit the same; or Frustration of said offense; or Offense which necessarily includes the first offense; or Offense which is necessarily included in the first offense.

SUBSTITUTION If before judgment, a mistake has been made in charging the proper offense, the court shall dismiss the original Complaint or Information upon the filing of a new one, provided accused shall not be placed in double jeopardy. It is only applicable to original cases, not to appealed cases.

Limitations: No judgment yet rendered; Accused cannot be convicted of offense charged or offense necessarily included therein; and Accused would not be placed in double jeopardy.

AMENDMENTSUBSTITUTION

Formal or substantial.Generally, only substantial.

If before plea, no need for a leave of court.With leave of court.

If as to form only, no need for a Preliminary Investigation and the retaking of the plea.Another Preliminary Investigation and plea is required for the new Information.

When is preliminary investigation needed: There is substitution of Information;- but if only the mode of commission of an offense is changed, there is no need. There is substantial amendment; There is provisional dismissal; Other persons are charged; Under a new Complaint original charge is upgraded; or Under a new Complaint criminal liability is upgraded.

VENUE OF CRIMINAL ACTIONS Venue in criminal actions is jurisdictional (where crime is committed). It cannot be waived or changed by agreement of the parties, or consent of the defendant.

Take Note: What can be transferred is the venue of the trial or hearing, but the place of the institution of the criminal action is still the place where the crime was committed.

GENERAL RULE: Principle of Territoriality (action must be filed in the court of territory where the offense or its elements occurred.EXCEPTION: Transitory and Continuing offenses.

Take Note: Offenses committed abroad but can be filed in the Philippines: Article 2 (RPC); and Terrorism.

INTERVENTION OF OFFENDED PARTYGENERAL RULE: The offended party can intervene by counsel where the civil action for recovery of civil indemnity is instituted in the criminal action.EXCEPTIONS: No civil liability; Waiver of civil indemnity; Reserved right to institute a separate civil action; or Civil action is already instituted.

----- PROSECUTION OF CIVIL ACTION -----

RULES ON IMPLIED INSTITUTION OF CIVIL ACTION WITH CRIMINAL ACTIONGENERAL RULE: When a criminal action is filed, the civil action for the recovery of civil indemnity arising from the offense shall be deemed instituted.Take Note: Civil liability arising from other source of obligations (law, contract, quasi-contract, and quasi-delict) are no longer deemed instituted.EXCEPTIONS: The offended party Waives the civil action; Reserves the civil action = it must be done before the prosecution commences to present evidence; or Civil action is filed prior to the criminal action. Civil action is suspended. There is an option to consolidate the civil action with the criminal action. It must be done before the judgment on the merit is rendered.

Take Note: Counterclaims, cross-claims and Third-party complaint these are not allowed in a criminal proceeding; claims which could be the subject thereof may be litigated in a separate civil action. Offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. Offended party may compromise the civil aspect of a crime, provided it is entered into before or during the litigation, not after the final judgment. Reservation of civil action is not allowed in: BP 22 cases; Cases before the Sandiganbayan; and Tax cases.

Rules on filing fees of civil action deemed instituted in a criminal action: For actual damages = no filing fees. For moral, nominal, temperate, or exemplary damages, if specified = filing fees required.

Take Note: If the amount of damages is not specified, the fees will be a lien on the judgment. For BP 22 cases, the filing fees are needed on all kinds of damages (including actual damages).

WHEN SEPARATE CIVIL ACTION IS SUSPENDEDAfter the filing of the criminal actionThe civil action reserved cannot be instituted until the final judgment is rendered in the criminal action.

The civil action is filed before the criminal action.The pending civil action shall be suspended in whatever stage until the final judgment in the criminal action.

Take Note: The acquittal in a criminal action does not bar the filing of the civil case. The extinction of the penal action does not carry with it the extinction of the civil action, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist. Where the criminal case was dismissed before the trial because the offended party executed an affidavit of desistance, the civil action thereof is also dismissed.

GENERAL RULE: Primacy of the criminal action over the civil action.EXCEPTIONS: Independent civil actions (Articles 32, 33, 34, and 2176, NCC); Civil action presents a prejudicial question; Civil action is not one intended to enforce the civil liability arising from the offense; and Civil action is consolidated with the criminal action.Take Note: The consolidation must be in the criminal court, irrespective of the nature of the offense and the amount of the civil claim. The evidence in the civil case is deemed automatically reproduced in the criminal action without prejudice to the admission of additional evidence, and the right to cross-examination. Consolidation is done through a motion.

KINDS OF ACQUITTALEFFECT ON CIVIL LIABILITY

Based on reasonable doubt.Civil liability lies.

Did not commit the crime.No more civil liability based on delict.

Purely civil.Civil liability arises.

Acts from which civil liability arises from were not committed.No civil liability.

The extinction of criminal liability = extinction of civil liability, IF

The accused is innocent; The act or omission does not exist; or The death of the accused.

The extinction of criminal liability extinction of civil liability, IF

Acquittal is based on reasonable doubt, if the civil case is reserved; The liability of the accused is only civil; The civil liability is not based on act which the accused is acquitted; The statute declares that there is only civil liability; Justifying circumstances; or Exempting circumstances.

WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY(These are not suspended, even if filed before the criminal action, or is reserved.) Article 32: Violation of rights; Article 33: Defamation, fraud, and physical injuries; Article 34: Failure to aid by police force; and Article 2176: Quasi-delicts.

Take Note: The recovery of civil liability here arising from the same act or omission may be prosecuted separately, even without a reservation.

EFFECTS OF DEATH OF THE ACCUSED OR CONVICT ON THE CIVIL ACTIONBefore the arraignment.The case shall be dismissed without prejudice to any civil action that the offended party may file against the estate of the accused.

After the arraignment, and during the pendency of the criminal action.The criminal liability and the civil liability arising from the delict are extinguished, but: Independent civil actions continue; Civil liability on other sources subsists; and Civil action reserved and subsequently filed or such civil action has been instituted when accused died.

The accused or convict dies after final appeal.The pecuniary liabilities of the accused are not extinguished.

PREJUDICIAL QUESTION (PQ) It arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance thereof pertains to another tribunal. It suspends the criminal action. Elements: The civil action is instituted prior to the criminal action; The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and The resolution of such issue determines whether or not the criminal action may proceed. Time to plead: By filing a motion in the Office of the Prosecutor during the preliminary investigation, or in the court conducting the preliminary investigation; or in the court before prosecution rests its case.

Take Note: Civil and administrative = no PQ. Both civil = no PQ. Both criminal = no PQ. Civil and criminal = there may be a PQ.

----- PRELIMINARY INVESTIGATION -----

PRELIMINARY INVESTIGATION (PI) It is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof, and should be held for trial. It is merely inquisitorial. The presence of the accused or the offended party = not mandatory. Respondent is the proper term; not accused. It is a personal right which can be waived, by: Failure to claim it before the accused pleaded; His silence; or Failure to request it within 5 days. GENERAL RULE: PI is required before the filing of a Complaint or Information for an offense, the penalty thereof is at least 4 years, 2 months, and 1 day, without regard to fine.EXCEPTION: No PI when a person is lawfully arrested without a warrant (instead, there can be an inquest).

INSTANCES WHEN PRELIMINARY INVESTIGATION MAY BE ASKED BY THE ACCUSED AFTER ARRESTED

Take Note: The absence of a PI does not affect the courts jurisdiction or invalidate the Information, if no objection was raised by the accused; if an objection was raised, the court should order the fiscal to conduct a PI, instead of dismissing the Complaint or Information.

REMEDIES OF ACCUSED IF NO PRELIMINARY INVESTIGATION Refused to enter a plea upon arraignment, and object to further proceedings; Insist on a PI; File a certiorari, if refused; Raise the lack of PI as error on appeal; or File for prohibition.

Take Note: PI is not part of the trial. The dismissal of the case by the Prosecutor will not constitute double jeopardy, and it will not bar the filing of another complaint for the same offense. But if the case is re-filed, the accused is entitled to another PI.

WHO MAY CONDUCT PRELIMINARY INVESTIGATION Provincial/City prosecutors, and their assistants; National and regional state prosecutors; and Ombudsman, Special Prosecutor (if authorized by the Ombudsman), COMELEC, PCGG.

Take Note: The NBI cannot conduct a PI. First level court judges cannot. The jurisdiction of the prosecutors is based on territory.

Effects of an incomplete PI: It will not warrant the quashal of the Information; and It will not affect courts jurisdiction or the validity of the Information.

Take Note: The complaint-affidavit must be subscribed before the prosecutor or government official where the case will be filed. Do not file a notarized affidavit; instead, bring your client before the prosecutors office, except: There is no available prosecutor or government official; or Complainant is abroad.

PROCEDURE OF PRELIMINARY INVESTIGATION

Take Note: A Motion for Reconsideration can be filed with the Prosecutor. There is no need for service of subpoena (and receipt thereof) for the Office of the Prosecutor to obtain jurisdiction over the respondent because no case yet.

RESOLUTION OF INVESTIGATION PROSECUTOR (IP) If he finds cause to hold respondent for trial, he shall prepare the resolution and Information.

Take Note: No Complaint or Information may be filed or dismissed by an IP without prior written authority or approval of the provincial/city Prosecutor or Chief State Prosecutor, or of the Ombudsman. Exclusion of others from the Information does not relieve them from criminal liability; it is not a ground for a Motion to Quash.Information is filed by someone not authorized by law the court does not acquire jurisdiction. The determination of the Assistant Fiscal or State Prosecutor is only recommendatory; their findings may be reversed or modified by the provincial/city fiscal, in which case it is the latter who may directly file the Information without need of another preliminary investigation. Posting of bail does not bar the accused from questioning the conduct (or absence) of a preliminary investigation, or the legality of the arrest.

WHEN WARRANT OF ARREST MAY BE ISSUEDPROBABLE CAUSE (PC) It is a reasonable ground for belief in the existence of facts warranting the proceedings complained of.

Take Note: While the judge may rely on the fiscals certification, the same is not conclusive upon the judge; the latter may require the submission of affidavits of witnesses, or may require fiscal to conduct further preliminary investigation or reinvestigation.

FOR THE ISSUANCE OF A WARRANT OF ARRESTFOR THE ISSUANCE OF A SEARCH WARRANT

Judges of the RTC and inferior courts need not personally examine the complainant and witnesses to determine probable cause. Why? Because a preliminary investigation has been done prior.Judges are required to personally examine the complainant and witnesses. Why? Because no preliminary investigation has been previously conducted.

PROCEDURE (REGIONAL TRIAL COURT)

PROCEDURE (MUNICIPAL TRIAL COURT)

DETERMINATION OF PROBABLE CAUSE

BY THE PROSECUTOR(Executive determination of PC)It is done by the Prosecutor during the Preliminary Investigation.Take Note: The court can compel the Prosecutor, by Mandamus, to conduct a Preliminary Investigation (because its the Prosecutors ministerial duty); but, the court cannot compel the Prosecutor to determine Probable Cause as it is discretionary upon him.

BY THE JUDGE(Judicial determination of PC)It is done by the Judge to ascertain whether or not a Warrant of Arrest should be issued.Take Note: The Judge is not required to read the entire records of the case to determine Probable Cause.

When can you file a motion for the determination of probable cause: After the filing of the Information, and before the Judge has acted on it.Take Note: It cannot be filed after the issuance of a Warrant of Arrest.

Warrant of arrest is not necessary: The accused is already under detention; The Complaint/Information is filed pursuant to a lawful warrantless arrest; or The offense is penalized only by a fine.

Remedies of the accused if he believes that there is no probable cause to hold him for trial: Motion to Dismiss; or Motion to Quash (if a Warrant of Arrest has already been issued).

MTC Judge may issue a Warrant of Arrest before the conclusion of the Preliminary Investigation, if: If he finds that probable cause exists; and There is a necessity of placing the respondent under immediate custody.

CASES NOT REQUIRING PRELIMINARY INVESTIGATIONIf a Complaint is filed with the Prosecutor The Prosecutor will determine PC and then file the Information in court.

If a Complaint/Information is filed with the MTC/MCTC The Judge will determine PC, and in its discretion issue either a Warrant of Arrest, OR Summons (if no necessity of placing under custody).

INQUEST It is an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without warrant of arrest. It is applicable only if: There is warrantless arrest; or The offense requires a PI.

Take Note: You can file for bail during inquest. Even if there is waiver under Rule 125, you can still apply for bail.

PROCEDURE FOR INQUEST

Take Note: If warrantless arrest, but the offense does not require PI? Information will be directly filed with the Prosecutor, or with the MTC. Records of PI shall not automatically form part of the records of the case; it must be introduced as evidence. The courts are not compelled to take judicial notice thereof.

----- ARREST -----ARREST It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Essential requisites for a valid Warrant of Arrest: Issued upon PC, determined personally by a Judge; After evaluation of prosecutors report and evidence adduced during PI; Warrant must particularly describe the person to be arrested; and In connection with a specific offense or crime.

Who may issue? Judges of all levels. BID Commissioner may issue a Warrant of Arrest of an undesirable alien sought to be deported.

Remedy for warrants improperly issued: Petition to quash it; not a petition for habeas corpus.

Take Note: The accused is not required to be handcuffed or be placed in jail in order to be considered arrested. Invitations are not arrest.

ARREST HOW MADE Actual restraint; or Voluntary submission.

Take Note: Reasonable and necessary amount of force may be used. Upon arrest, these may be confiscated: Object subject of the offense or used or intended to be used; Fruits of the crime; May be used to commit violence or to escape; Dangerous weapons; and Objects, possession of which is illegal per se. Arrest must precede the search; it cannot be reversed. Reliable information alone is not sufficient to justify a warrantless arrest. Validity of a Search Warrant 10 days, after which it becomes void. Validity of a Warrant of Arrest No time limit for its validity. When can you make an arrest? Any day, any time of the day or night

ARREST WITHOUT WARRANT, WHEN LAWFULGENERAL RULE: No authority to arrest without a warrant.EXCEPTIONS: Lawful warrantless arrests: In flagrante delicto (e.g. buy-bust operation); Doctrine of Hot Pursuit; Evasion of service of sentence; Escapes; By bondsman for purpose of surrendering the accused; and Accused attempts to leave the country without permission of the court.

Take Note: Flight per se is not synonymous with guilt.

Rules on illegality of arrest:1. Objection must be raised before arraignment; otherwise, it is deemed waived.2. Illegality of warrantless arrest may be cured by filing of an Information in court and the subsequent issuance by the Judge of a Warrant of Arrest.3. Once already charged in court, the remedy is to quash the Information, not habeas corpus.

METHODS OF ARRESTWith a warrantArrest may be made even if the police officer is not in possession of the Warrant of Arrest. However, if the person arrested so requires, the warrant shall be shown to him as soon as possible.

EXCEPTIONS: Person to be arrested flees; He forcibly resists before officer could do so; or Giving of information will imperil the arrest.

Without a warrantArresting officer must state his authority to arrest, and the cause of his arrest.

EXCEPTIONS: Engaged in the commission of the offense; Pursuit immediately after its commission; Escapes, flees, or forcibly resists before officer could do so; or Giving of information will imperil the arrest.

By a private personState the cause of the arrest, and the intention to arrest.

EXCEPTIONS: (same as without a warrant)

----- BAIL -----

Bail It is the security given for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the conditions specified by the rule. It is applicable whenever there is deprivation of liberty, or there is voluntary surrender. It is available to those detained persons but not yet formally charged. It is available in extradition proceedings (proof required: clear and convincing evidence). Bail is wholly discretionary in deportation proceedings, since it is not a criminal action. Kinds of bail: Corporate surety; Property bond; Cash deposit; and Recognizance.

Take Note: Persons under custody of Military Courts are not entitled to bail.

Prosecution witnesses may also be required to post bail to ensure their appearance at the trial, where: There is a substitution of Information, and The court believes that a material witness may not appear at the trial.

Conditions of bail:1. The undertaking shall remain in force at all time, until promulgation of judgment of the RTC.2. The accused shall appear in court when ordered to do so.3. Failure to appear in court without justification = there is waiver; trial in absentia will proceed.4. Bondsman shall surrender the accused for execution of the final judgment.

Take Note: Requiring arraignment before grant of bail is not valid. The trial court may impose other conditions in granting bail where likelihood of jumping bail or of committing other harm is feared. Filing of a fake bail bond = appellant is deemed to have escaped. The accused who absconded after posting bail does not lose his right to bail. The remedy of the court is to increase the amount of bail.

BEFORE CONVICTIONAFTER CONVICTION

Bail as a matter of right(The Judge cannot deny bail, but he has discretion on the amount.)MTC and RTC

EXCEPT, in offenses punishable by reclusion perpetua, life imprisonment, or death penalty, where evidence of guilt is strong. (If not strong, it is a matter of right)MTC

RTC, provided: imprisonment is less than 6 years, and no disqualifiers: Recidivist, habitual delinquent, reiteracion; Previously escaped from legal confinement; Committed offense while under probation/parole/pardon; Flight-risk; or Undue risk that he may commit another crime during the pendency of the appeal.

Bail as a matter of discretionRTC, provided: it is not a capital offense, or is not punishable by reclusion perpetua, or life imprisonment, and it is not accompanied by any bail disqualifiers if the penalty exceeds 6 years.

Bail is not allowed in: Capital offense, or offense punishable by reclusion perpetua, or life imprisonment; and The evidence of guilt is strong.

WHERE DO YOU APPLY FOR BAIL

RTC if appealed, and before the transmission of records to the appellate court.Appellate court if appealed, and the RTCs conviction changed the nature of the offense from non-bailable to bailable.

WHERE TO APPLY

If arrested in the place where the case is pending In the court where the case is pending; or If the Judge of said court is absent or unavailable, with any Judge in the province/city/municipality.

If the arrest is in a place different from where the case if pending In the court where the case is pending; or In the RTC where the accused was arrested; or If no RTC Judge, with the MTC Judge.

If there is a case pending, but no arrest yet (meaning, the accused voluntary surrenders) Only where the case is pending.

If there is an arrest, but no case is pending (meaning, warrantless arrest) Any court where the accused is held.

Illustrations:Arrested in Brgy. Bitano, Legazpi City, and the case was filed in Legazpi City= apply in court where the case is pending; if the Judge is not available, apply in any court in the area.Arrested in Legazpi City, but the case was pending in Daraga= apply in Legazpi City, not in Daraga.Wandering freely in Legazpi City, but the case is pending in Daraga= you are not yet arrested so do not apply for bail;= but if you decide to voluntarily surrender, do it in Daraga, and post bail there.

Take Note: If bail is filed in court other than where the case is pending, the Judge who accepted the bail shall forward it together with the order of release to the court where the case is pending. But the Judge may order a new bail. Warrant of Arrest without recommendation for bail is a violation of constitutional right of accused to bail, except if charged with offenses punishable by reclusion perpetua, or higher, and the evidence of guilt is strong.

RULES

CONVICTED BY:YEARS OF IMPRISONMENTBAIL DISQUALIFIERRESULT

RTC> 6 yearsBail is denied

RTC> 6 yearsXBail is discretionary

RTC< 6 yearsBail is a matter of right

RTC< 6 yearsBail is discretionary, but the court will impose a higher amount of bail

Take Note: Although bail is discretionary, bail hearing is still mandatory. In order to grant bail as a matter of discretion, there must be no final judgment yet.

GENERAL RULE: Capital offenses (those punishable by reclusion perpetua, life imprisonment, or death) are not bailable when evidence of guilt is strong.EXCEPTION: Accused is a minor.

GUIDELINES IN FIXING THE AMOUNT OF BAIL (not exclusive) Financial ability; Nature and circumstances of the offense; Penalty; Character and reputation of the accused; Age and health of the accused; Weight of evidence; Probability of the accused appearing at the trial; Forfeiture of other bail; Accused is a fugitive when arrested; and Pendency of other cases.

BAIL WHEN NOT REQUIRED(Reduced bail on recognizance) Violation of ordinance; Light felony; Penalty does not exceed 6 months, and/or fine of 2,000; Youthful offender; In custody for a period equal to or more than the possible maximum imprisonment prescribed; and Failure to appear.

Take Note: Under the Rules on Summary Procedure, generally, there is no bail, except, when a Warrant of Arrest is issued for failure to appear when required by the court.

INCREASE OR REDUCTION OF BAILIf increased but the accused does not give bail = he may be committed into custody.

FORFEITURE AND CANCELLATION OF BAILForfeiture- When the accused fails to appear.

Remedy: Motion for Reconsideration to reinstate the bail.

Within 30 days from failure to appear, the bondsman must: produce the accused or give reason for non-production; and explain why accused did not appear.

Take Note: If bondsman fails to do the above, an order of confiscation shall be rendered against him.

Cancellation- It is automatic when: Accused is acquitted; Dismissal of the case; or Execution of judgment of conviction.- Or upon application of bondsman when: Surrender of accused; or Proof of his death.

APPLICATION FOR OR ADMISSION TO BAIL SHALL NOT BAR THE ACCUSED FROM CHALLENGING: Validity of his arrest; Legality of the Warrant of Arrest; or Regularity, or questioning the absence of preliminary investigation.

They must be raised before entering plea (arraignment).

Take Note: A Motion to Quash the amended Information can be filed during the pendency of a petition for bail.

HOLD DEPARTURE ORDER (HDO) It can be issued only by the RTC in criminal cases. MTC Judges have no authority to issue, or to cancel the HDO.

----- RIGHTS OF THE ACCUSED -----

Rights of the accused during trial1. To be presumed innocent.2. To be informed of the nature and the cause of the accusation against him.GENERAL RULE: The accused cannot be convicted of an offense, unless the offense is clearly charged in the Complaint/Information.EXCEPTION: The accused fails to object to its sufficiency during trial and the deficiency was cured by competent evidence presented; a waiver of his constitutional right.3. To be present and defend in person and by counsel at every stage of the proceeding.GENERAL RULE: The presence of the accused during criminal action is not required and shall be based on his sole discretion.EXCEPTIONS: During arraignment; During promulgation of sentence, except for light offenses; and If ordered by the court for purposes of identification.

Take Note: Private complainant does not need to be present always. He is only required to be present during arraignment.

Effects of waiver by the accused of his right to appear: Waiver of the right to present evidence and to cross-examine the witnesses; The prosecution can present evidence if the accused fails to appear; and The court can decide the case without the accuseds evidence.

Trial in Absentia Absence of the accused = waiver of his right to meet the witnesses face to face, but not a waiver of his duty to the court. Requirements for trial in absentia: The accused has been arraigned; He has been duly notified of the trial; and His failure to appear is unjustified.

Right to Counsel This right is absolute and may be invoked at all times, even on appeal. But the right to counsel de parte is not absolute.RIGHT TO COUNSEL

DURING ARRAIGNMENTDURING TRIAL

It is the courts duty to inform the accused of his right to counsel, and to provide him if he cannot afford.Mandatory only during arraignment.

It is the accused who must assert his right to counsel.

DURING CUSTODIAL INVESTIGATIONDURING TRIAL

What is required is a competent and independent counsel, preferably the choice of the accused.

Take Note: These are not independent counsel: Legal officer of the city; Public/private prosecutor; Counsel for the police; and Municipal Attorney.What is required is an effective counsel.

Take Note: Confessions made without the assistance of a counsel are not admissible, but they may be used to impeach the credibility of the accused. Retrial of the case can be ordered on the ground of denial of the constitutional right to counsel. The offended party cannot waive the assistance of a counsel.

GENERAL RULE: The negligence of the counsel binds the accused.EXCEPTION: Gross negligence of the counsel.4. To testify as witness in his own behalf. This is a waivable right. The silence of the accused will not prejudice him. The accused can testify for the prosecution if he wants, but he cannot be compelled to do so.AMERICAN RULEENGLISH RULE

The accused may be cross-examined only on matters covered by his direct examination.The accused may be cross-examined as to any matter.

5. To be exempt from being compelled to be a witness against himself (Right against Self-Incrimination). This only applies to testimonial compulsion. This right may be waived by failure to invoke after an incriminating question is asked and before his answer.ORDINARY WITNESSACCUSED

He may be compelled to take the witness stand and claim the privilege as each question requiring an incriminating answer is asked.He may altogether refuse to take the witness stand and refuse to answer any and all questions.

Take Note: If the accused testifies in his own behalf, he may be cross-examined. Furnishing of specimen of signature is covered by this right. This right is available in: Criminal proceedings; Civil proceedings; Administrative proceedings, where a penal sanction is involved; and Government proceedings.6. To confront and cross-examine the witnesses against him at trial. This right may be waived.7. To have compulsory process (subpoena ad testificandum, and subpoena duces tecum). This right may be waived. If a witness refuses to testify when required, he can be cited in contempt of court. The court may order a witness to give bail, or to be arrested. Other processes to compel the attendance of a person: Warrant of Arrest; Contempt; Perpetuation of testimony; and Modes of discovery. For witness for the accused: Sick/infirm/unavailable; or Lives more than 100 km. from the court. For witness for the prosecution: Sick/infirm/unavailable; or Witness is about to depart.8. To have a speedy, impartial, and public trial. This right cannot be waived. There is no violation of this right if the delay if imputable to the accused.Right to a speedy trial(criminal)It can be invoked at any time before trial.

Remedy: Motion to Dismiss.

Speedy disposition of the case(quasi-judicial/administrative)It can be invoked at any time as long as the action is pending.

Remedy: Habeas Corpus.

Relevant periods: Arrest to pre-trial and arraignment: 30 days Arraignment to trial: 80 days Entire period of trial: 180 days

Take Note: Dismissal for violation of accuseds right to a speedy trial is equivalent to an acquittal. An attempt to prosecute for the same offense is equal to double jeopardy. Excluded from the determination of delay: Mental/Physical examination of the accused; Other criminal charges; Extraordinary remedies against interlocutory orders; Pre-trial proceedings, not exceeding 30 days; Orders of inhibition or change/transfer of venue; Any period not exceeding 30 days when the accused is actually under advisement; Absence of witness; Mental incompetence/physical inability of the accused to stand trial; Co-accused over whom the court has no jurisdiction or for whom the time for trial has not run and no motion for a separate trial is granted; The prosecution dismissed the Information upon motion and then filed another charge for the same case; and Continuance granted by the court motu proprio, or on motion of either the accused or the prosecution.

Right to public trial:GENERAL RULE: Trial should be public.EXCEPTION: When evidence to be produced is offensive to decency or public morals.9. To appeal on all cases allowed by law and in the manner prescribed by law. This right may be waived. The right to appeal is not a natural right.

----- ARRAIGNMENT AND PLEA -----

ARRAIGNMENT AND PLEA, HOW MADEARRAIGNMENT It is the formal mode of implementing the constitutional right of the accused to be informed of the nature of the accusation against him. Where: In the court where the Complaint/Information was filed, or assigned for trial. How: Read by the Judge or clerk; In a language/dialect known to the accused; and Accused must be asked whether he pleads guilty or not (meaning, arraignment first before plea). When: Accused is not under preventive suspension: 30 days from the date the court acquires jurisdiction over the person of the accused (meaning, from the filing of the Information).Take Note: The time of the pendency of a Motion to Quash, or of a Bill of Particular, or of other causes justifying suspension, is not counted. Accused is under preventive suspension:

Take Note: Arraignment cannot be waived. The accused must be present and must personally enter his plea. The offended party must also be present. If he does not appear, the accused can plea to a lesser offense with the conformity of the prosecution.PLEA OF NOT GUILTY IS ENTERED1. If the accused so pleaded;2. If the accused refuses to plea;3. If the accused enters a guilty plea but offers exculpatory evidence;4. If the accused makes a conditional plea; and5. If the plea entered is indefinite or ambiguous.

GENERAL RULE: Unconditional plea of guilt admits the crime.EXCEPTIONS: Compelled by violence or intimidation; Accused did not fully understand the meaning and consequences of his plea; The Information is insufficient to sustain conviction; The Information does not charge any offense; and The court has no jurisdiction.

Take Note: When there is a defect in the Information, the Judge has no obligation to point out the defect. The obligation to file a Motion to Quash belongs to the accused, whose failure to do so constitutes a waiver. A mere written manifestation is not a valid plea.

WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE1. There is consent of the offended party;2. The prosecutor also consented to the plea of guilty; and3. The plea is to a lesser offense which is necessarily included in the offense charged.

If the accused entered a plea to a lesser offense without the consent of the offended party and the prosecutor, and he was convictedThe accuseds subsequent conviction of the crime charged would not place him in double jeopardy.

After arraignment but before trialThe accused may still be allowed to plead to a lesser offense after withdrawing his plea of not guilty. No amendment of the Complaint/Information is necessary.

Take Note: A plea of guilty to a lesser offense after prosecution rests, is allowed only when the prosecution does not have sufficient evidence to establish guilt for the crime charged.

During trial, a plea of guilty to a lesser offense is no longer allowed.

ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE; WHAT THE COURT SHOULD DO1. Conduct a searching inquiry into the Voluntariness of the plea; and Full comprehension of the consequences of his plea.2. Require the prosecution to prove his guilt; and3. Ask the accused if he desires to present evidence and allow him to do so if he desires; but proof of self-defense to exonerate him is not allowed.

SEARCHING INQUIRY

IMPROVIDENT PLEA It refers to a plea of guilty without fully understanding its consequences. Effects: Conviction will be set aside if plea of guilty is the sole basis of the judgment. If not, the court may validly convict based on independent adequate evidence. Can an improvident plea be withdrawn? YES!When: At any time before judgment of conviction becomes final and executory.Effect of withdrawal: The judgment of conviction is set aside, and there is re-opening for new trial.

Take Note: Withdrawal of a plea of guilty is not a matter of right to the accused but of sound discretion to the trial court.

BILL OF PARTICULARS It is filed before arraignment.

GROUNDS FOR SUSPENSION OF ARRAIGNMENT The accused suffering from unsound mental condition; Prejudicial question exists; A Petition for Review is pending with the DOJ or with the Office of the President; and It should not exceed 60 days from filing. There are pending incidents, like: Motion to Quash; Motion for Inhibition; Bill of Particulars.

----- MOTION TO QUASH -----

Motion to Quash (MTQ) It is filed by the defendant before entering his plea, which hypothetically admits the truth of the facts in the Complaint/Information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings. It must be in writing.

GENERAL RULE: MTQ is filed before entering plea.EXCEPTIONS: (meaning, MTQ may be filed after plea) Failure to charge an offense; Lack of jurisdiction over the offense charged; Extinction of offense or penalty; or Defendant would be placed in double jeopardy.

Take Note: MTQ only belongs to the accused. MTQ is not a responsive pleading. What is quashed is the Information, not the Complaint-Affidavit. Filing a MTQ results in the submission of the accused to the jurisdiction of the court.

MOTION TO QUASHDEMURRER TO EVIDENCE

It is filed before defendant enters his plea.It is filed after prosecution rested its case.

It does not go into the merits of the case.It is based on inadequacy of evidence by the prosecution.

Rule 117Rule 119

GROUNDS FOR MOTION TO QUASH1. The facts charged do not constitute an offense. Why? Because the elements of the offense are not alleged. Matters aliunde are not considered. If the facts alleged constitute a different crime No MTQ; instead, the court will order an amendment. If amendment is not followed, then, the court will grant MTQ. Is there double jeopardy? None, because there is no arraignment yet.2. More than one offense was charged in the Information. GENERAL RULE: 1 offense = 1 InformationEXCEPTION: Complex crimes3. It does not conform substantially to prescribed form.4. The officer who filed the Information had no authority to do so. It cannot be cured by silence, acquiescence, or consent.5. Lack of jurisdiction over the person of the accused. Either because the accused is not yet arrested, or has not yet voluntarily surrendered.6. Lack of jurisdiction over the offense charged. The court can consider even without alleging in the MTQ.7. The criminal action or liability is extinguished (Article 89, RPC).8. It contains averments, which if true, would constitute a legal excuse or justification, such as: Justifying circumstances; Exempting circumstance; and Absolutory causes.9. The accused has been previously convicted or acquitted of an offense charged, or the case against him was dismissed without his express consent.10. Double jeopardy. Requisites: Complaint or Information; Valid plea entered; Final judgment, or dismissal; and Subsequent Complaint or Information is filed for: Same offense; or Attempt to commit the same; or Frustration of said offense; or Offense which necessarily includes the first offense; or Offense which is necessarily included in the first offense. Requisites to raise double jeopardy:1. First jeopardy must have attached;2. First jeopardy must have been terminated;3. Second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first Information or is an attempt or frustration thereof.

Take Note: There is no double jeopardy when: Supervening event; The facts constituting graver charge are only discovered after a plea was entered; or The plea of guilty to a lesser offense was made without the consent of the prosecutor and the offended party, except when the offended party did not appear during the arraignment.

GENERAL RULE: Dismissal must be without the express consent of the accused.EXCEPTIONS:Even if there is express consent of the accused, still, they are tantamount to dismissal or acquittal.

There is violation of right to a speedy trial; or Demurrer to evidence

Take Note: The discharge of the defendant on a preliminary investigation is not an adjudication in his favor as will bar subsequent prosecution for the offense; preliminary investigation is not part of the trial.

EFFECTS OF SUSTAINING A MOTION TO QUASHGENERAL RULE: It results to dismissal.EXCEPTIONS:

If based on alleged defect which can be cured by amendment.The court will order amendment.

If based on ground that the facts charged do not constitute an offense.The court will allow amendment; if the prosecution fails to amend, then, it will result to the dismissal.

Can there be a re-filing of the Information? GENERAL RULE: Yes. The accused will not be discharged, unless admitted to bail. But, if still no new Complaint/Information is filed within the specific period ordered by the court, the accused can be discharged.EXCEPTIONS: Prescription; or Double jeopardy.EFFECTS OF SUSTAINING OR DENYING MOTION TO QUASH

PROVISIONAL DISMISSAL Requisites:1. There is express consent of the accused;2. Notice to the offended party; and3. The court granted the motion. Effects of provisional dismissal: The case is temporarily dismissed. It can later on be revived (not refiled). GENERAL RULE: Double jeopardy cannot be invoked.EXCEPTION: Dismissal was actually an acquittal based on: Lack or insufficiency of evidence; or Denial of right to a speeding trial. There is no form required for a provisional dismissal. Who can ask for a provisional dismissal? The prosecution It must be with the consent of the accused (so that there will be no double jeopardy) If there is no consent, the hearing will be reset If there is no consent, and it was dismissed, double jeopardy will already set in. The accused There is no need for the consent of the prosecution. When can you ask for a provisional dismissal? At any time while the case is pending. What are sample grounds for provisional dismissal? The witness is not available for quite some time; The victim became insane; or There is lack of material evidence. Why move for a provisional dismissal instead for a continuance? So that you will not get trapped by the accused saying that his right to a speedy trial has been violated. Asking for multiple continuances and rests may piss the Judge.HOW CAN PROVISIONAL DISMISSAL BECOME PERMANENT

The offense is punishable by imprisonment not exceeding 6 years1 year after the issuance of the order

The offense is punishable by imprisonment beyond 6 years2 years after the issuance of the order

Take Note: In provisional dismissal, there is no need for a new preliminary investigation, EXCEPT if the witness: Recanted; Died; or A new one emerged.MOTION TO QUASHPROVISIONAL DISMISSAL

It is filed by the accused.It is filed by the accused, or by the prosecutor.

A form is required.No form is required.

It assails the Information.It is grounded on reasons other than the defects in the Information.

It is available before plea.It is available at any time.

MOTION TO DISMISS(CIVIL)MOTION TO QUASH (CRIMINAL)

Court actionEither to grant, deny, or order amendment.Either to grant, deny, or order amendment.Limited grounds: Defects that can be cured, or facts charged do not constitute an offense.

Re-filingYes.

EXCEPT: Prescription; Res judicata; Unenforceable under the Statute of Fraud; and Extinguished claim or demand.Yes.

EXCEPT: Prescription; and Double jeopardy.

Objections not raisedWaived.

EXCEPT: Prescription; Res judicata; Litis pendentia; and Lack of jurisdiction over the subject matter.Waived.

EXCEPT: Prescription; Double jeopardy; Lack of jurisdiction over the offense; and Facts do not constitute an offense.

----- PRE-TRIAL -----

Pre-trial This is mandatory in criminal cases (MTC, MCTC, MeTC, RTC, & Sandiganbayan). When should it occur? 30 days from the date the court acquires jurisdiction over the person of the accused, and after arraignment.

PRE-TRIAL IN CIVIL CASEPRE-TRIAL IN CRIMINAL CASE

The presence of the defendant is required, unless duly represented by his counsel; otherwise, the case shall proceed as if the defendant is in default.The presence of the accused is not indispensable, unless required by the court. The accused may waive his presence at all stages, except at arraignment, promulgation, or when required to appear for identification.

The presence of the plaintiff is required, unless excused; otherwise, the case may be dismissed with or without prejudice.The presence of private offended party is not required, except during arraignment.

Pre-trial brief is required.Pre-trial brief is not required; but it requires attendance at pre-trial conference.

Pre-trial is mandatory.Pre-trial is mandatory.

GENERAL RULE: No compromise in a criminal action (offer of compromise is a sign of criminal liability).EXCEPTION: Compromise is allowed as regards the civil aspect.

MATTERS TO BE CONSIDERED DURING PRE-TRIAL Plea bargaining; Stipulation of facts; Marking for identification of evidence; Waiver of objections to admissibility of evidence; Modification of the order of trial if accused admits the charge but interposes a lawful defense (reverse trial); and Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case.

PRE-TRIAL AGREEMENTThese are not required in civil cases.

It must be in writing; Signed by both accused and his counsel; and Subject to approval of the court.

Take Note: Omission of signature of the accused and his counsel renders the stipulation of facts inadmissible in evidence.

NON-APPEARANCE DURING PRE-TRIALOffended party, or the witness is absent.The court can either reset the pre-trial, or rely on compulsory processes.

Counsel if absent.The court may impose sanctions or penalties.

Accused is absent.Forfeiture of bail, and/or warrant of arrest.

PRE-TRIAL ORDER It is issued after pre-trial, reciting actions taken, facts stipulated, and evidence marked. Purposes: Binds the parties to issues raised therein. Limits the trial to matters not disposed of. Controls the course of the action during trial.

----- TRIAL -----

Trial should not exceed 180 days from the first day of trial, except as otherwise provided by the Supreme Court.

REQUISITES BEFORE TRIAL CAN BE SUSPENDED ON ACCOUNT OF ABSENCE OF WITNESS1. Witness is material;2. Party who applies is not negligent;3. Witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained; and4. An affidavit showing the existence of the above circumstances must be filed.

TRIAL IN ABSENTIA Absence of the accused = waiver of his right to meet the witnesses face to face, but not a waiver of his duty to the court. Requirements for trial in absentia: The accused has been arraigned; He has been duly notified of the trial; and His failure to appear is unjustified.

REMEDY WHEN ACCUSED IS NOT BROUGHT TO TRIAL WITHIN THE PRESCRIBED PERIOD Motion to Dismiss (due to denial of right to a speedy trial) Failure of the accused to move for the dismissal prior to the trial = waiver of his right to dismiss.

REQUISITES FOR DISCHARGE OF ACCUSED TO BECOME A STATE WITNESS1. There is no direct evidence;2. Absolute necessity for the evidence;3. Testimony could be substantially corroborated in material points;4. Accused does not appear to be the most guilty; and5. Accused is not convicted of a crime involving moral turpitude.

When to apply? Before the prosecution rests its case.

What does the applicant needs to submit? A sworn affidavit.

EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS Evidence adduced in support of the charge shall automatically form part of the trial; and It operates as an acquittal and bar to further prosecution for the same offense.

Take Note: If the court denies the motion to discharge the accused as state witness, his sworn statement shall be inadmissible in evidence.

ORDER OF TRIAL1. Prosecution;2. Defense;3. Rebuttal;4. Surrebuttal; and5. Submission of memoranda.

Take Note: The order can be reversed when self-defense or other exculpatory defenses are raised.

DEMURRER TO EVIDENCE (DTE) This is a motion to dismiss due to insufficiency of evidence presented by the prosecution.

DTE IN CRIMINAL CASEDTE IN CIVIL CASE

When to fileAfter the prosecution rests.After the plaintiff has completed presenting his evidence.

Leave of court (LoC)It is not really needed, but: If you file with LoC, and it is denied, accused can still present evidence. If no LoC, and it is denied accused will not be able to present evidence; judgment shall be rendered.No need for LoC.

Effect of grant of LoCAcquittal, but the civil aspect should still be heard, unless the court rules that the fact from which the civil liability would arise does not exist.Final disposition of the case.

Take Note: The court can move for a demurrer on its own, as long as it gives the prosecution a chance to be heard.

Take Note: If criminal demurrer is denied, is there a remedy? None. Why? Because it is an interlocutory order, which is not reviewable by appeal, or by certiorari, before judgment. Just wait for the judgment, then if there is GADALEJ, file Certiorari under Rule 65.

----- JUDGMENT -----

REQUISITES OF A JUDGMENT1. In writing;2. In the official language;3. Personally and directly prepared and signed by the Judge; and4. With a concise statement of the fact and signed by the Judge.

Take Note: There can be no oral judgment. Remedy if the judgment is not put into writing = file a Petition for Mandamus to compel the Judge to put it in writing. It is not necessary that the Judge who tried the case be the same judicial officer to decide it. It is sufficient if he be apprised of evidence already presented.

CONTENTS OF THE JUDGMENTIf for conviction1. The offense;2. Participation of the accused;3. Penalty imposed; and4. Aggravating/mitigating circumstances.

If for acquittal1. Whether there is complete non-liability;2. Reasonable doubt; and3. Facts from which civil liability might arise were not committed.

Take Note: The judgment of acquittal is considered a final and executory order. There is no more remedy for it.

PROMULGATION OF JUDGMENTIn civil cases=Judgment is served.In criminal cases=Judgment is promulgated.

Presence of counsel=Not necessary.Presence of accused=Required, except for light offenses.

Take Note: If the accused is absent without justifiable case, he loses the remedies available in the Rules, and he shall be arrested; but, he can explain within 15 days. The Judge is not required to promulgate the judgment personally.Who may promulgate the judgment? The Judge of the court in which it was rendered; The clerk of said court, in the absence of the Judge; or The executive Judge of the RTC having the jurisdiction over the place of confinement or detention.

Take Note: The appellate courts can do promulgation. Notice of promulgation should be served to the accused personally (as much as possible).EXCEPTIONS: If in jail = to the warden. If out on bail = to the bondsman. If at large = to his last known address.

Promulgation in absentia (without the presence of the accused):1. Judgment is for a light offense; and2. Where despite notice, accused failed to appear.

WHEN JUDGMENT BECOMES FINAL No appeal is filed; Waiver of the right to appeal; Probation; or Service of sentence.

----- NEW TRIAL OR RECONSIDERATION -----

New Trial or Reconsideration The accused can file a Motion for New Trial, or a Motion for Reconsideration at any time before judgment of conviction becomes final (meaning: 15 days (Neypes Rule is applicable) The prosecution cannot file a Motion for New Trial, or a Motion for Reconsideration.

GROUNDS FOR NEW TRIAL1. Errors of law or irregularities prejudicing the substantive rights of the accused during trial; or2. Newly discovered evidence.Requisites:a. It is material;b. It could not have been discovered and produced with reasonable diligence; andc. Would probably change the judgment.

Take Note: If a Motion for New Trial is granted, the court should commence a new trial within 30 days from notice of such order. the thirty-day period is extendable up to 180 days from notice. A Motion for New Trial can be filed in the Court of Appeals, but only based on newly discovered evidence. When? At any time from the perfection of the appeal, until the court loses jurisdiction.

GROUNDS FOR MOTION FOR RECONSIDERATION1. Errors of law; or2. Errors of fact in the judgment.

Take Note: The grant of the court of the reconsideration should require no hearing (such as taking of additional proof). A Motion for Reconsideration can be filed in the Court of Appeals; but just once.

EFFECTS OF GRANTING THE NEW TRIAL OR RECONSIDERATIONIf a New Trial is granted on the ground of errors of law, or irregularities during trial.Everything will be set aside and taken anew; but, those not affected shall stand (meaning: not all evidence previously adduced shall stand).

If a New Trial is granted on the ground of newly discovered evidence.Evidence already taken shall stand, and newly discovered evidence will be considered (meaning: all evidence previously adduced shall stand).

In all cases (granting of New Trial, or Reconsideration)Original judgment shall be set aside or vacated and a new judgment rendered accordingly.

Take Note: The effect of granting a New Trial is not to acquit the accused, in which he is guilty, but to set aside the judgment so that the case may be tried de novo as if no trial had been before. An order granting or denying a New Trial is appealable.

----- APPEAL -----

Appeal There is no record of appeal in criminal cases; it is only applicable in civil cases. Only notice of appeal is allowed in criminal cases.

Who may appeal? Accused; Offended party (but only as regards the civil aspect); or People of the Philippines.Example:When a Motion to Quash was granted, the State can appeal since no double jeopardy yet (a Motion to Quash is filed before arraignment).

EFFECT OF AN APPEALCIVIL=the court will only consider the assignment of errors.CRIMINAL=the entire case is open for review(penalty can be increased on appeal).

WHERE TO APPEALCourt where to appealRequirement

MTC/MeTC/MCTCto the RTCvia Notice of Appeal filed in the MTC/MeTC/MCTC.

(In civil cases, record of appeal).

Take Note: There is no hearing in the RTC since acting in its appellate jurisdiction.

RTCif acting originally, to the CAvia Notice of Appeal filed in the RTC (R.41) Same is penalty imposed by the RTC is reclusion perpetua or life imprisonment. If the penalty is death, straight to CA (but no need for notice of appeal).

(In civil cases, record of appeal).

Procedure: Appellants brief within 30 days Appellees brief within 30 days Reply brief within 20 days

(In civil cases, 45-45-20 days).

if acting as an appellate court, to the CAvia Petition for Review (R.42)

directly to the SCif based purely on questions of law (R.45) Neypes Rule applies

CAto the SCvia Petition for Review on Certiorari (R.45) Neypes Rule applies

Except: CA decides penalty is reclusion perpetua, or life imprisonment, the remedy is by notice of appeal with the CA. CA decided death, it will render but not enter a judgment and certify the case to the SC. automatic review by the CA (it would minimize the possibility of an error of judgment).

Sandiganbayan decides (same level as CA)to the SC if penalty is less than death, life imprisonment, or reclusion perpetua Petition for Review on Certiorari (R.45). if penalty is death automatic review. if penalty is life imprisonment, or reclusion perpetua Notice of Appeal.

Take Note: When the decision is raised to the SC on Notice of Appeal (reclusion perpetua, or life imprisonment), both questions on facts and law can be raised. R.41, Sec.1 (when appeal is prohibited) does not apply to criminal appeals. Thus, you can appeal a MTQ, regardless of the ground availed of. Even if the ground can lead to a simple re-filing, appeal is still available. If accused uses the wrong mode for appeal, the judgment will become final and executory because the running of the appeal period will not be tolled.Except: If the interest of justice would allow.

When appeal to be taken? 15 days from promulgation of judgment, or from notice of the final order appealed from. It is interrupted from MNT/MR is filed, until the notice of the order overruling it has been served upon the accused or upon his counsel. The balance of the period begins to run.

Effect of perfection of appeal The court a quo loses jurisdiction over the case, both over the record and over the subject of the case.

Take Note: The fresh 15-day period to appeal from the dismissal of a Motion for New Trial, or Motion for Reconsideration to the RTC is counted from the receipt of the order dismissing the MNT/MR. (NEYPES RULE). It applies to both criminal and civil cases.

Modes of Review: Ordinary appeal; Petition for Review; Petition for Review on Certiorari; and Automatic appeal.EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSEDOnly one or several of them (but not all) appealIt does not affect those who did not appeal, unless favorable and applicable to them.

Appeal by offended party of the civil aspectIt does not affect the criminal aspect.

Upon perfection of appealThe execution shall be stayed, but only as to the appealing party.

Example:A,B, C were all convicted for Homicide.A and B appealed using the correct mode.C appealed but used the wrong mode.Cs case was dismissed.A and B were acquitted on appeal.

Result: C will not benefit because he appealed; if not, it would have benefited him.

GROUNDS FOR DISMISSAL OF APPEAL Failure of appellant to file a brief within the reglementary period, except when he is represented by a counsel de officio; Escape of appellant from prison or confinement; Appellant jumps bail; and Flight of appellant to a foreign country during the pendency of appeal.

----- SEARCH AND SEIZURE -----WARRANT OF ARRESTSEARCH WARRANT

It is an order directed to the peace officer to execute the warrant by taking the person stated therein into custody that he may be bound to answer for the commission of the offense.It is an order in writing in the name of the Republic of the Philippines signed by the judge and directed to the peace officer to search personal property described therein and to bring it to the court.

It does not become stale.It is valid only for 10 days.

It may be served on any day and at any time of the day or night.It is to be served only in day time, unless the affidavit alleges that the property is on the person or in the place to be searched.

Searching examination of witnesses is not necessary.It is a must to personally conduct an examination of the complainant and the witnesses.

NATURE OF SEARCH WARRANT It is in the nature of criminal process akin to a writ of discovery and may be invoked only in furtherance of public prosecutions. It has no relation to civil process or trials. It is not available to individuals in the course of civil proceedings. It is not for the maintenance of any mere private right. It is interlocutory in character it leaves more to be done, which is the determination of the guilt of the accused.

WHERE TO APPLY FOR SEARCH WARRANTGENERAL RULE: In the court within whose territorial jurisdiction the crime was committed.EXCEPTIONS: For compelling reasons, any court within the judicial region the offense was committed, or where the warrant is to be served. Or in any court where the warrant will be enforced.

Take Note: If the criminal action had already been filed, apply only in that court where the case is pending.

GENERAL RULE: A search warrant cannot be applied for in QC or in Manila and be implemented outside of its territorial jurisdiction.EXCEPTIONS: R.A. 9165;Apply a search warrant before an executive judge in Manila/QC; then, it will be effective anywhere

Intellectual Property Code; Illegal possession of firearms; Illegal gambling; Heinous crimes; AMLA; and Violation of Tariff and Customs Code.Take Note: The application for a search warrant is not a criminal action; it is a special judicial process.

PERSONAL PROPERTY TO BE SEIZED BY VIRTUE OF A WARRANT Subject of the offense; Stolen or embezzled or fruits of the offense; and/or Used or intended to be used for committing the offense.

Take Note: It is not required that the property to be seized should be owned by the person against whom the search warrant is directed; it is sufficient that he has control or possession of it. The search warrant does not have to specify the quantity of drugs.

REQUISITES FOR ISSUANCE OF A SEARCH WARRANT1. It must be issued upon probable cause. Probable Cause facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense is in the place sought to be searched. Who determines probable cause? It is personally determined by the Judge (not by the prosecutor). Exception: Deportation of illegal and undesirable aliens, whom the President/Commissioner of Immigration may order be arrested, following a final order of deportation for the purpose of deportation.2. The place to be searched must be described with particularity.3. The things or persons to be seized must also be described with particularity.

Take Note: 1 Search Warrant = 1 specific offense. If the search warrant is already implemented the thing seized must only be confined to those described therein. If the search warrant is not yet implemented illegal in plain view can be seized.

EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT Search incidental to lawful arrest; the arrest must come before, or contemporaneous with the search and seizure. Consented search; Search of moving vehicle; Check points; body checks in airport; Plain view situation; Stop and frisk situation; and Enforcement of custom laws.

Remedies from unlawful search and seizure: MTQ (before the implementation of the search warrant); Motion to Suppress Evidence (as to the objects illegally taken Exclusionary Rule); and after the implementation of the search warrant and before the presentation in court. Replevin (if the objects are illegally possessed).

WHERE IS PROBABLE CAUSE NEEDED Preliminary investigation; Warrantless arrest (crime just been committed); Warrant of Arrest; and Search and seizures.

----- PROVISIONAL REMEDIES -----

NATURE OF PROVISIONAL REMEDIES Those to which parties litigant may resort for the preservation or protection of their rights or interests and for no other purposes during the pendency of the action; They are applied to a pending litigation for securing the judgment or preserving the status quo, and in some cases after the judgment for preserving or disposing of the subject matter.

GENERAL RULE: Provisional remedies in civil procedure are applicable to criminal procedure.EXCEPTION: Replevin (it can only be filed before an Answer; there is no answer in criminal procedure).

GROUNDS FOR ATTACHMENT Accused is about to abscond; Accused concealed, removed, or disposed of his property (or is about to do so); Claim for money or property that has been embezzled with abuse of trust (Estafa); and Accused resides outside the Philippines.

Take Note: Attachment can be availed of when civil action is properly instituted in the criminal action.KINDS OF PROVISIONAL REMEDIES1. Attachment;2. Injunction;3. Receivership;4. Delivery of personal property;5. Support pendent lite.