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DOUBLE JEOPARDY

A. General Considerations
7. Abay, Sr. v. Garcia, 162 SCRA 665 (1988)
Keywords:
Direct
assault
Facts: Petitioners were accused of the crime of direct assault. Trial commenced on July 26, 1976,
with Ramiro Garque testifying on direct examination and partly on cross-examination. The trial was
transferred to September 14, 1976. But again the cross-examination was not terminated so the case
was reset to July 1, 197 . At the continuation of the trial on July 1, 1977, both accused appeared
without their counsel. The trial fiscal, Assistant Fiscal Angel Lobaton, was present, but the
complainant, Garque who was still to be cross-examined, failed to appear despite due notice. The
private prosecutor, Atty. Henry Trocino, also failed to appear. Whereupon, City Judge Felino Garcia
verbally ordered, motu proprio, the dismissal of the case. Fiscal Lobaton did not object to the
dismissal. Both accused remained silent and later left the courtroom after the judge dictated the
order of dismissal. At about 10:00 o'clock in the morning of the same day, Atty. Trocino, together
with Garque arrived in court and upon learning that Criminal Case No. 29688 was ordered
dismissed, verbally moved to have the order of dismissal set aside. Atty. Trocino was allowed to
present evidence in support of the verbal motion for reconsideration and to explain the failure of
Garque to appear on time. In his written order of July 1, 1977, Judge Garcia granted the verbal
motion for reconsideration and set aside the verbal order of dismissal. He further ordered the
resetting of the case for hearing on another date. Petitioners invoked double jeopardy, claiming that
the verbal order of dismissal, even if provisional, was rendered without the express consent of the
accused.
Issue: WON the verbal order of dismissal acquitted the petitioners?
Held: No, the court held that the order was merely dictated in open court by the trial judge.
Showing that this verbal order of dismissal was ever reduced to writing and duly signed by him.
Thus, it did not yet attain the effect of a judgment of acquittal, so that it was still within the powers
of the judge to set it aside and enter another order, now in writing and duly signed by him,
reinstating the case.
Doctrine: Order of dismissal must be written in the official language, personally and directly
prepared by the judge and signed by him conformably with the provisions of Rule 120, section 2 of
the 1985 Rules on Criminal Procedure
B. Consented Dismissals
8. People v. Obsania, 23 SCRA 1249 (1968)
Facts: The accused was charged with Robbery with Rape before the Municipal Court of Balungao,
Pangasinan. He pleaded not guilty. The assistant provincial fiscal filed an information for rape
against the accused, embodying the allegations of the above complaint, with an additional averment
that the offense was committed "with lewd designs. His counsel moved for the dismissal of the
charge for failure to allege vivid designs in the info. Said motion was granted. From this order of
dismissal the prosecution appealed. The accused contended that the appeal of the Government
constitutes double jeopardy.
In People vs. Salico, supra, the provincial fiscal appealed from the order of the trial court
dismissing, upon motion of the defendant made immediately after the prosecution had rested its
case, an indictment for homicide, on the ground that the prosecution had failed to prove that the
crime was committed within the territorial jurisdiction of the trial court, or, more specifically, that
the municipality of Victorias in which the crime was allegedly committed was compromised within

the province of Negros Occidental. Rejecting the claim of the accused that the appeal placed him in
double jeopardy, this Court held that the dismissal was erroneous because the evidence on record
showed that the crime was committed in the town of Victorias and the trial judge should have taken
judicial notice that the said municipality was included within the province of Negros Occidental and
therefore the offense charged was committed within the jurisdiction of the court of first instance of
the said province. In ruling that the appeal by the Government did not put the accused in peril of a
second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon
motion of the defendant, the latter has not been in jeopardy," and "assuming, arguendo, that the
defendant had been already in jeopardy in the court below and would be placed in double jeopardy
by the appeal, the defendant has waived his constitutional right not to be put in danger of being
convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority,
reasoned that when the case is dismissed with the express consent of the defendant, the dismissal
will not be a bar to another prosecution for the same offense; because, his action in having the case
dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby
prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction
against him.
In People vs. Clolibel, a dismissal upon the defendant's own motion is a dismissal consented to by
him and, consequently, will not be a bar to another prosecution for the same offense, because, his
action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for
the reason that he thereby prevents the court from proceeding to the trial on the merits and
rendering a judgment of conviction against him. (People v. Salico, 84 Phil. 772) But, this authority
has long been abandoned and the ruling therein expressly repudiated.
Issue: WON the present appeal places the accused in Double Jeopardy?
Held: No, The complaint filed with the municipal court in the case at bar was valid; the court a quo
was a competent tribunal with jurisdiction to hear the case; the record shows that the accused
pleaded not guilty upon arraignment. Hence, the only remaining and decisive question is whether
the dismissal of the case was without the express consent of the accused. The court held that he
converted dismissal was ordered by the Trial Judge upon the defendant's motion to dismiss. The
doctrine of double jeopardy as enunciated in P.vs. Salico applies to wit when the case is dismissed
with the express consent of the defendant, the dismissal will not be a bar to another prosecution for
the same offense because his action in having the case is dismissed constitutes a waiver of his
constitutional right/privilege for the reason that he thereby prevents the Court from proceeding to
the trial on the merits and rendering a judgment of conviction against him.
In essence, where a criminal case is dismissed provisionally not only with the express consent of the
accused but even upon the urging of his counsel there can be no double jeopardy under Sect. 9 Rule
113, if the indictment against him is revived by the fiscal.
Doctrine: 1. the dismissal must be sought or induced by the defendant personally or through his
counsel; and second, such dismissal must not be on the merits and must not necessarily amount to
an acquittal. Indubitably, the case at bar falls squarely within the periphery of the said doctrines
which have been preserved unimpaired in the corpus of our jurisprudence.
2. In order that the accused may invoke double jeopardy, the following requisites must have
obtained in the original prosecution, a) valid complaint, b) competent court, c) the defendant had
pleaded to the charge, d) defendant was acquitted or convicted or the case against him was
dismissed or otherwise terminated without his express consent.

Note: The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for
the first time in 1949 in People vs. Salico.
9. Ong v. People, 342 SCRA 372 (2000)
Keywords: paper bag-making machine
Facts: Zeny Alfonso purchased a paper bag-making machine from the Solid Cement Corporation.
When she went to the corporation's Antipolo plant, however, no machine could be given to her, it
appearing that the machine sold had been earlier mortgaged to a creditor, who, unfortunately,
refused to release the mortgage. Herein petitioners offered to return the money paid by Mrs.
Alfonso but she refused and instead filed a criminal complaint with the City Prosecutor of Makati.
The City Prosecutor dismissed the complaint on the ground that liability, if any, would be civil and
not criminal in nature. This dismissal was, however, reversed by the Department of Justice. An
Information for estafa and other deceit based on the Revised Penal Code was filed with the MeTC
of Makati City. After pre-trial, the prosecution presented as its sole witness complainant Zeny
Alfonso. The prosecution then formally offered its documentary evidence and rested its case. The
admissibility of these documents was questioned by petitioners. Petitioners filed a motion for leave
to file demurrer to evidence but the MeTC denied the petitioner. RTC reversed the MeTC decision
and and granted the demurrer to evidence but the CA reversed the decision of RTC and reinstated
the decision of MeTC. The appellate court held that petitioners could not avail of their
constitutional right against double jeopardy, allegedly because the regional trial court's reversal of
the MeTC denial of their demurrer to evidence is a "fruit" emerging from grave abuse of discretion.
It declared that Judge Guadiz could not decide in the special civil action filed before him whether or
not the evidence adduced by the prosecution had established beyond reasonable doubt the guilt of
petitioners, factual matters not being proper for consideration in certiorari proceedings.
Issue: WON the RTC resolution was an acquittal?
Held: Yes, the court held that the grant by the RTC of the demurrer to evidence, the same
constituted a valid acquittal and any further prosecution of petitioners on the same charge would
expose them to being put twice in jeopardy for the same offense. A dismissal of a criminal case by
the grant of a demurrer to evidence is not appealable as the accused would thereby be placed in
double jeopardy
10. People v. Declaro, 170 SCRA 142 (1989)
Keywords:
Aklan
Facts: The accused was charged for slight physical injuries through reckless imprudence due to
traffic accident. Upon the arraignment of the accused in Criminal Case No. 1028-N before the
inferior court on October 7, 1981, he entered a plea of not guilty. The case was first set for hearing
on January 19, 1983. Both the offended party and the prosecuting fiscal, however, failed to appear
at the scheduled hearing despite due notice. Counsel for the accused thus verbally moved for the
dismissal of the case for lack of interest on the part of the prosecution. This motion was granted. A
motion for reconsideration of the said order was filed by the fiscal on January 27, 1983. The motion
for reconsideration was granted in an order dated May 27, 1983. The case was, therefore, set for
trial. However, upon a motion for reconsideration filed by the accused, the inferior court issued
another order dated August 30, 1983, dismissing the case anew.
In the meanwhile, considering that the said case had been dismissed on January 19, 1983, counsel
for the accused filed a motion to dismiss Criminal Case No. 1421 on the ground that the dismissal
of the prior case is a bar to the prosecution of the latter. In an order dated March 23, 1983, the trial

court dismissed Criminal Case No. 1421 on the ground of double jeopardy. A motion for
reconsideration was filed by the prosecution but this was denied on May 11, 1983.
It is the contention of petitioner that the dismissal of the case was at the instance and with the
consent of the accused and his counsel which constitutes a waiver of his constitutional right against
double jeopardy and, therefore, such dismissal will not bar another prosecution. On the other hand,
private respondent, citing several cases, maintains that although the dismissal was at the instance
and with the consent of the accused, it was in reality an acquittal by reason of the prosecution's
failure to prove his guilt, thus barring another prosecution for the same offense.
Issue: WON there is double jeopardy?
Held: No, the accused was duly notified that the case was set for hearing on January 19, 1983. On
said date of hearing neither the complainant nor the fiscal appeared despite due notice. This was the
first date of hearing after arraignment. The court a quo should not have dismissed the case and
should have instead reset the case to another date to give the prosecution another day in court. the
complaining witness and the prosecutor failed to appear only in the first hearing. Even if the court
did not dismiss the case but merely postponed the hearing to another date, there would not have
been a denial of the right of the accused to a speedy trial. The right of the accused to have a speedy
trial is violated when unjustified postponements of the trial are asked for and secured, or when,
without good cause or justifiable motive, a long period of time is allowed to elapse without his case
being tried. None of said situations exists in the present case. Surely, it cannot be said that there
was a violation of the constitutional right of the accused to a speedy trial. As we observed, the more
prudent step that the court a quo should have taken was to postpone the hearing to give the
prosecution another opportunity to present its case. The court a quo had in fact reconsidered its
order of dismissal of Criminal Case No. 1028-N and reset it for trial. lt should have maintained said
action instead of granting the motion for reconsideration of the accused. The dismissal of the case
by the trial court on the ground that the accused is entitled to a speedy trial is unwarranted under the
circumstances obtaining in this case.
Doctrine: Double jeopardy will apply even if the dismissal is made with the express consent of the
accused, or upon his own motion, only if it is predicated on either of two grounds, i.e., insufficiency
of the evidence or denial of the right to a speedy trial. In both cases, the dismissal will have the
effect of an acquittal. Since the dismissal in this case does not fall under either of these two
instances and it was made with the express consent of the accused, it would not thereby be a bar to
another prosecution for the same offense.
11. Almario v. Court of Appeals, 355 SCRA 1 (2001)
Keywords:
Facts: Petitioner is one of the accused in Criminal Case No. 91-6761, for estafa thru falsification of
public document, and Criminal Case No. 91-6762, for estafa, with respondent RCBC as the
offended party in both cases. The informations were filed on October 22, 1992. After petitioners
arraignment on March 18, 1992, pre-trial was held, which was terminated on October 21, 1994.
Thereafter, the cases were scheduled for continuous trial in December 1994, and in January and
February 1995, but the hearings were cancelled because the Presiding Judge of the court was
elevated to this Court and no trial judge was immediately appointed/detailed thereto.The hearing set
for June 21, 1995, was postponed for lack of proof of notice to all the accused and their counsel.
The hearing on July 17, 1995, upon request of private prosecutor, and without objection on the part
of petitioners counsel, postponed to July 24, 1995. However, for lack of proof of service of notice
upon petitioners three co-accused, the hearing set for July 24, 1995, was likewise cancelled and the

cases were reset for trial on September 8 and 25, 1995. On September 8, 1995, private complainant
failed to appear despite due notice. Hence, upon motion of petitioners counsel, respondent court
dismissed the case of the petitioner. Upon motion of the private prosecutor and despite the
opposition of petitioner, respondent court held that The dismissal in the Order dated September 8,
1995, did not result in the acquittal of the accused since the right of the accused to speedy trial has
not been violated, and its dismissal having been made upon the motion of the accused there is no
double jeopardy. Petitioner sought a reconsideration of the above order.
Issue: WON there is double jeopardy?
Held: No, the court held that the petitioners right to speedy trial was not transgressed, this exception
to the fifth element of double jeopardy that the defendant was acquitted or convicted, or the case
was dismissed or otherwise terminated without the express consent of the accused was not met. The
trial courts initial order of dismissal was upon motion of petitioners counsel, hence made with the
express consent of petitioner. That being the case, despite the reconsideration of said order, double
jeopardy did not attach.
Doctrine:
C.
Acquittal,
Motions
for
Reconsideration
and
Appeals
12. Bustamante v. Maceren, 48 SCRA 155 (1972)
Keywords:
re-opening
Facts: The petitioner was accused of murder. Petitioner entered a plea of guilty, and after proving
the privileged mitigating circumstance of incomplete self-defense and three ordinary mitigating
circumstances, the trial was had and judgment promulgated on March 17, 1972 by now respondent
Judge that bustamante is guilty of the crime of murder.
On the same day, the judgment above-quoted was promulgated to the petitioner, who thereupon
made an express waiver of his right to appeal. Provincial Fiscal of Laguna filed a motion for
Modification of Penalty and upon receipt of said motion, counsel for the petitioner on the same day
filed a Motion for Withdrawal of Plea of Guilty and Waiver of Commitment. On December 21,
1970, the Hon. Judge Jorge Coquia issued the following order: "Submitted for resolution is the
motion for modification of penalty filed by the Assistant Provincial Fiscal. Or the other hand
accused through counsel in view of the motion of the prosecution filed a motion for withdrawal of
plea of guilty and waiver of commitment. But in view of the motion of accused, the motion of the
prosecution has become moot and academic and the motion filed by the accused is hereby granted
and the judgment in this case dated December 14, 1970 is hereby set aside and the case shall be
tried on the merit on January 18, 1970. Subsequently, Judge Coquia was transferred to Manila, and
the case against petitioner was reassigned to the sala presided over by the Honorable Maximo
Maceren, before whom petitioner was re-arraigned on February 1, 1971; and after petitioner entered
a plea of not guilty, said judge held a new hearing of the case on the merits and thereafter, Judge
Maceren rendered a new judgment against petitioner on February 28, 1972 that the petitioner is
guilty of the crime of homicide.
Petitioner filed a Motion for Reconsideration. in which motion petitioner questioned the jurisdiction
of the trial court to try his case anew after he had fully served the judgment rendered by Judge
Coquia against him on December 14, 1970. Petitioner, in said motion, argued that the judgment of
December 14, 1970 against him had already become final when he started serving his sentence
thereunder and that therefore, the Court thereafter lost jurisdiction over his case; and that no amount
of waiver or consent on his part could bestow on said court jurisdiction that it had already lost.

Issue: WON the reopening the case is valid?


Held: Yes, Petitioner is entitled to the relief prayed for. With the judgment of conviction not only
promulgated but actually carried out with petitioner having started to serve his sentence, no such
order re-opening the case should have been issued by Judge Coquia. That was not in accordance
with the controlling doctrine on the constitutional right against being twice put in jeopardy. It is true
that petitioner had in fact contributed to bringing about such judicial deviation from the correct
norm. That did not forfeit though, his right to a remedy to which he is entitled. There should not
have been any approval of such a move. The Constitution does not countenance such a step. The
judgment was rendered. On the very same day, he was committed to jail and actually started serving
sentence. There was no valid justification then for the order of Judge Coquia setting aside a decision
already in the process of execution. That amounted to a defiance of a constitutional command
Doctrine: No re-opening of a case may be ordered of a criminal case after accused has started
serving his sentence; a judgment in a criminal case becomes final after the lapse of the period for
perfecting an appeal or when the sentence has been partially or totally satisfied or served or the
defendant ha waived in writing his appeal; withdrawal of plea of guilty does not constitute waiver
of defense of double jeopardy timely invoked.
A judgment in a criminal case becomes final after the lapse of the period for perfection appeal, or
when the sentence has been partially or totally satisfied or served, or the defendant has expressly
waived in writing his right to appeal.
A final and executory judgment is not appealable and the appellate court has no jurisdiction to
review,
reverse,
or
modify
it.