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Criminal Procedure such reservation (Rule 111 Section 1).

(Note
(Atty. Daniel D. Mangallay) that it is not enough to simply answer at
anytime before the prosecution starts
Rule 111 presenting its evidence. It must be complete
as to include the phrase under such
Prosecution of Civil Action circumstances that afford the offended party a
reasonable opportunity to make such
General Rule. When a criminal action is reservation. The relevance of this phrase will be
instituted, the civil action for the recovery shown below)
of civil liability arising from the offense
shall be deemed instituted with the What is the reason for the inclusion of the
criminal action. phrase under such circumstances that
afford the offended party a reasonable
Reason for the Rule: Every person criminally opportunity to make such reservation?
liable is also civilly liable (Art. 100, Revised
Penal Code). A criminal action has two aspects- This rule is added to address a situation
the criminal and the civil aspect. One source of where the accused pleads guilty to a non-capital
obligation is delict or acts or omissions offense in order to escape civil liability (as
punishable by law. The law abhors splitting the shown by some cases that have reached the
criminal and civil aspect of a criminal action Supreme Court). In such instance, no trial shall
since it goes against efficient and speedy be made and the prosecution cannot present its
disposition of cases. evidence. Nonetheless, a reasonable
opportunity shall be given for the offended
Exceptions to the General Rule: party to make the reservation of his right to file
1. When the offended party waives a separate action. (In other words, pleading
the civil action. guilty to a non-capital offense in order to
2. When the offended party escape civil liability arising from the offense is
reserves the right to institute a not allowed.)
separate action. Case: A makes a valid plea of guilty for the
3. When the offended party crime of Homicide. The prosecution no
institutes civil action prior to the longer presents evidence to prove As guilt.
institution of a criminal action. B, the offended party, chooses to reserve
In the civil aspect of the criminal action, the right to institute a separate civil action.
the real parties in interest are the offended A objected on the ground that he may not
party and the accused. As a consequence, do so because there will be no presentation
both the offended party and the accused of evidence by the prosecution. Will As
may file an appeal in relation to the civil contention prosper? (Menses v. Luat 12
aspect of the case. While the law and rules SCRA 454: Reyes v. Simpio 141 SCRA 208)
prohibit double recovery, there is no No, A is incorrect. B must be afforded
violation of the right of an accused against reasonable opportunity to reserve his right to
double jeopardy if the offended party files institute a separate civil action.
an appeal to seek an increase in the award
of an accuseds civil liability. The right What if the accused pleads guilty to a
against double jeopardy applies only to capital offense?
criminal cases.
The prosecution still needs to prove
the guilt of the accused along with his civil
liability. There is no rule requiring automatic
Reservation of the Right to Institute a conviction for a capital offense upon a valid
Separate Civil Action guilty plea.
When may an offended party reserve the Are there cases where the offended party
right to file a separate action? cannot reserve his right to institute a
At anytime before the prosecution separate civil action?
starts presenting its evidence but always Yes. These are criminal actions for
under such circumstances that afford the violation of BP 22 and those that fall within the
offended party a reasonable opportunity to jurisdiction of the Sandiganbayan. In cases for
make such reasonable opportunity to make

1
violation of BP 22, the liability is essentially What are the different independent civil
civil. On the other hand, in cases falling within actions?
the jurisdiction of the Sandigandbayan, the
offended party is the State. The following are the different
independent civil actions:
In criminal actions for violation of BP 22,
may the offended party still waive the civil 1. Civil actions arising from Art. 32 of
liability arising from the offense or institute the Civil Code - Violation of
a prior civil action to recover it? Political and Civil Liberties.
2. Civil actions arising from Art. 33 of
Yes. Only reservation of the right to the Civil Code - Defamation, Fraud
file a separate civil action is prohibited by the (including estafa as fraud is used in
rules. its generic sense) and Physical
Injuries (still in generic sense-
Case: A killed her spouse, B. A was includes all offenses resulting to
subsequently charged with parricide for physical injuries)
which she was found guilty. A and B had 3. Civil actions arising from Art. 34 of
common children who are still minors. the Civil Code Failure to render
Prior to the presentation of evidence by the aid by a Peace Officer, Mayor,
prosecution, Bs heirs never made any municipality
reservation to file a separate civil action to 4. Civil Actions arising from Art.
enforce the civil liability arising from the 2176 of the Civil Code Quasi-
offense. Considering that the children are delicts
still minor, the judge ordered a reservation
of their right to institute a separate action
until a guardian for them has been Waiver of Civil Liability
appointed. Nonetheless, despite its prior
order, the trial court awarded damages in What is needed to make a valid waiver?
favor of A and Bs common children. A
A waiver of the civil liability arising
assailed the award on the ground that the
from the offense charged needs a positive
right to institute a separate civil action has
action and must also be personal.
been reserved. Is A correct? (People v.
Samson, 7 SCRA 478)
No, A is incorrect. The reservation to Institution of a Prior Civil Action
institute a separate action is personal. It may
only be done by the offended party. Not even General Rule. Criminal action takes
the court can make such reservation on behalf precedence over civil actions. This means
of the offended party. that all earlier instituted civil actions will
have to be suspended to await judgment on
the criminal actions.
Independent Civil Actions Exceptions to the General Rule:
What is an independent civil action? (Rule 1. Independent civil actions
111 Sec. 3, Art. 32, 33, 34 and 2176 of the 2. Civil Actions that involve
Civil Code) prejudicial questions
3. Consolidation of the prior
They are civil actions that may proceed
instituted civil action with the
independently of the criminal action. They are
criminal action
totally distinct and separate from the civil
4. Civil Actions that do not enforce
liability arising from the criminal action. They
liability arising from the offense
are characterized by the separability of their
charged
juridical cause/cause of action. As a
consequence, the right to bring these actions Independent civil actions and civil
need not be reserved, and the institution of a actions that do not enforce liability
prior civil action or waiver of the civil liability arising from the offense charged
does not extinguish the right to file an shall proceed unaffected by the
independent civil action. criminal action.

2
If there is a consolidation of the public officials in relation to their
prior instituted civil action with the office = Abandonment of the Civil Action
criminal action, there shall be a
joint trial on the civil and criminal Prejudicial Question
aspects of the criminal case.
What is a prejudicial question? (Rule 111
The existence of a prejudicial Sec. 5)
question in an earlier instituted civil
A prejudicial question is an issue
action will suspend the criminal
involved in a civil case which is similar or
action. In this case, it is the civil
intimately related to the issue raised in the
action that truly takes precedence
criminal action, the resolution of which
over the criminal action.
determines whether or not the criminal action
If a civil action has been instituted prior to may proceed.
the criminal action, what happens now to
What are the elements of a prejudicial
the civil aspect of the criminal action?
question? (Rule 111 Sec. 5)
The criminal action no longer has a
The following are the elements of a
civil aspect. It is a purely criminal case.
prejudicial question.
What happens to the prior instituted civil
1. The previously instituted civil
action upon the commencement of the
action involves an issue similar to
criminal action? (Rule 111 Sec. 2)
or intimately related to the issue
It shall be suspended in whatever stage raised on the subsequent criminal
it may be found until judgment on merits to action.
await final judgment to be rendered in the 2. The resolution of such issue
criminal action. determines whether or not the
criminal action may proceed.
Upon a motion for consolidation, there
shall be a joint trial for the civil and criminal In what cases does a prejudicial question
action for a joint judgment. The civil action apply?
shall be consolidated in the same criminal
A prejudicial question applies only to a
action. It may happen that the civil action is in
criminal action and not to civil or
a different court. Upon consolidation, the civil
administrative cases. For it to apply, it is a strict
action shall be transferred to where the
requisite that there must be a prior instituted
criminal action is.
civil action and a criminal action filed
Is a consolidation of the prior instituted thereafter.
civil action and the criminal action
What is the effect of a prejudicial question?
mandatory?
(Rule 111 Sec. 6)
No. It is not a ministerial duty of the
When a prejudicial question exists in an
court trying the criminal action to grant
earlier instituted civil action, the criminal action
application for consolidation of an earlier
shall be suspended until judgment on the civil
instituted civil action.
action.
Is the earlier instituted civil action deemed
What must be done in order to suspend the
abandoned for failure to consolidate it with
proceedings in a criminal case due to a
the criminal action?
prejudicial question? (Rule 111 Sec. 6)
Yes if the civil action is one to recover
The accused must file a motion to
civil liability arising from a criminal action
suspend before preliminary investigation and if
committed by government officials in relation
the criminal action is on trial, the motion to
to their office. For all other cases, there is no
suspend must be filed anytime before the
abandonment of the civil action by reason of
prosecution rests. The court or the
failure to consolidate it with the criminal
investigating prosecutor cannot suspend the
action.
proceedings of criminal action or the
*Effect of failure to consolidate an earlier preliminary investigation on their own.
instituted civil action for crimes committed by

3
What kind of issue is needed for prejudicial General Rule. Dismissal of the criminal
question? (Rule 111 Sec. 5) action does not bar the civil action/The
extinction of the criminal action does not
For prejudicial question to exist, the carry with it the extinction of the civil
issues involved in a prior instituted civil action action unless (exception clause) the civil
and the criminal action must be so intimately action is based on the delict and there is a
related as to determine whether the criminal finding in the criminal action that the act
action may proceed or whether the accused is or omission from which the civil liability
guilty or not. may arise did not exist. Such finding may
not be exactly worded as such but it could
Case: A and B are husband and wife,
be impliedly stated. (Rule 111 Sec. 2)
respectively. B filed a case for concubinage
against A. Thereafter, A filed a petition to Dismissal of the criminal action is still not
declare his marriage with B as void ab a bar to the Civil Action in the following
initio. B now files a motion to suspend the cases.
proceedings of the criminal action on the
grounds of the existence of a prejudicial 1. Acquittal is based on reasonable
question. Is there a prejudicial question in doubt.
this case? 2. Finding by the court that the
accuseds liability is civil
No. There is no prejudicial question. 3. If the civil liability is not based
Foremost, for prejudicial question to exist, on the crime that is the subject
there must be a prior instituted civil action and matter of the criminal action.
a criminal case filed thereafter. In this case, it is
the reverse. The civil case is filed after the
commencement of the criminal action. Effect of Death of the Accused
What if in the above case, the petition for Before Arraignment.
declaration of nullity of marriage was filed
earlier prior to the institution of the The criminal action must be dismissed
criminal action for concubinage. Will there but the offended party may file the proper civil
be a prejudicial question? action against the estate of the deceased.

There is still no prejudicial question After Arraignment and During the


even if the civil case has been filed earlier. The Pendency of the Criminal Action.
outcome of a civil case for annulment of
The criminal liability and its
marriage or declaration of a marriage as void ab
corresponding civil liability are extinguished.
initio does not determine the guilt of the
However, the civil liability arising from
accused in concubinage.
independent civil actions and other sources
Suppose the petition for declaration of obligation aside from the delict may proceed
nullity was filed prior to the institution of a against the estate, legal representative or heirs
criminal case for bigamy. Will there be a of the accused.
prejudicial question?
After Conviction but During the Pendency
There is still no prejudicial question. As of an Appeal
a rule, the validity of either the first and second
The criminal liability is extinguished.
marriage is not a prejudicial question in the case
The civil action based on the delict is also
of bigamy. But if the validity of the second
extinguished but if it is not based on delict, it is
marriage is in question due to vitiation of or
not extinguished.
absence of consent, such as when the accused
was made to contract the second marriage
against his will by force, threat, or duress, it
now becomes a prejudicial question. (Merced
v. Diez GR No. L-15315, August 26, 1960;
Zapanta v. Mendoza GR No. L-14534, RULE 112
February 28, 1962) Preliminary Investigation
Nature of preliminary investigation
Effect of Acquittal on Civil Liability
4
It is not a judicial function but an An accused who after his arrest filed
executive one. It is generally inquisitorial. bail and proceeded to trial without previously
While it is an executive function, it is raising the issue or claiming lack of PI waived
considered a judicial inquiry, a judicial the same; however, it is not waived if he also
proceeding, as it involves opportunity to be asked for PI before the bail is approved. (Go.
heard for both parties, the production and V. CA, 206 SCRA 138 (1992).
weighing of evidence and decision thereon and The refusal of the court to remand the
the prosecutor, in the discharge of this case for PI can be controlled by certiorari and
function, acts as a quasi-judicial officer. (Arula prohibition to prevent trial. (Romualdez v.
v. Espino, 28 SCRA 226 (1990) As such, he Sandiganbayan, 244 SCRA 152 (1995).
must exhibit the cold neutrality of an impartial
judge.(Cruz v. People, 52 SCAD 516, 233 Who are not entitled to PI.
SCRA 439 (1994).
General rule: a person accused of a crime
Purpose of preliminary investigation punishable by at least 4 years, 2 months
and 1 day is entitled to PI.
The principal purpose is to determine
whether a crime has been committed and Exceptions:
whether there is probable cause to believe that
the accused is guilty thereof.(Drilon v. CA, 256 1. Those with lower penalty;
SCRA 280 (1996). 2. Special laws provide otherwise;
Salonga v. Cruz Pano, 134 SCRA 438 3. Cities whose charter require PI;
(1985), sums up the purpose and nature of PI 4. Person arrested lawfully without
and the duty of the prosecutor in connection warrant. Inquest or a summary
therewith, thus: investigation is conducted to
The purpose of a PI is to secure the determine whether he should
innocent against hasty, malicious and remain under custody and then be
oppressive prosecution and to protect him charged in court if there is probable
from an open and public accusation of crime, cause. The person arrested may ask
from trouble, expense and anxiety of a public for PI, but he has to sign a waiver
trial, and also to protect the state from useless of Art. 125 of RPC. This, however,
and expensive trials. The right to a PI is a does not preclude him from
statutory grant, and to withhold it would be to applying for bail.
transgress constitutional due process.xxx It is a If prosecutors says that arrest
part of the guarantees of freedom and fair play was not lawful:
which are birthrights of all who live in our a). Recommend release;
country. xxx b). Note down the disposition;
c). Prepare brief memorandum
Right to preliminary investigation of the reasons for the action
taken; and
The right to a PI is not a constitutional d). Forward to city or provl
but merely a statutory right. Nonetheless it is a pros. for action.
component part of due process in criminal If recommendation for release
justice. It is not a mere formal or technical is approved but the evidence warrants
right; it is a substantive right. (Go v. CA, 206 conduct of PI, release order shall be
SCRA 138 (1992). served by officer having custody and
shall direct the officer to serve upon
Waiver of right; when is there or no waiver. detainee the subpoena or notice of PI.

It being a personal right, it can be Who may conduct PI and determine


waived expressly or by implication. (People v. probable cause:
Lazo, 198 SCRA 274 (1991) Nonetheless, lack
of PI is not a ground to quash or dismiss an 1. Provincial or city prosecutors and their
information, nor does it affect the courts assistants;
jurisdiction. Where there is no PI, the accused 2. National and Regional State
must invoke it before or at the time of entering Prosecutors;
a plea or arraignment. 3. Other officers as maybe authorized by
law.

5
Judges of the 1st level courts are no -there is no ground-recommend
longer allowed to conduct PI (Sibulo v. dismissal. BUT the absence of
Toledo-Mupas, A.M. No. MTJ-07- certification does not invalidate the
1686, June 12, 2008) information as it is not an essential part
4. COMELEC-legal officers have of the it.
concurrent (by virtue of RA 9369) 9. Forwarding of records for
powers with other prosecuting arms of action/approval before filing or
the govt re: election offenses under the dismissal
Omnibus Election Code; (Art. IX, Sec. -10 days to approve or reverse SINCE
20, Constitution) no complaint or information may be
5. Ombudsman-on its own or on filed or dismissed by investigating
complaint by any person, any act or prosecutor without the prior written
omission of any public officer or authority of the provincial or city
employee, office or agency, when such prosecutor.
act or omission appears to be illegal, -
unjust, improper or inefficient. It has
primary jurisdiction over cases
cognizable by the Sandiganbayan.
6. PCGG with the assistance of the Sol
Gen and other govt agencies may
investigate, file and prosecute cases
investigated by it. (EO No. 14, May 7,
1986)

Procedure of PI must be strictly followed

1. Filing of complaint with prosecutor;


Hierarchy before whom affidavits may
be subscribed:
- Prosecutor
- Government official
- Notary public
2. Dismissal or issuance of subpoena
a) Dismiss if no ground to conduct
investigation
b) Issue subpoena if there is ground
3. Filing of counter-affidavit
4. Not in the rules but REPLY and
REJOINDER may be filed;
5. If no counter-affidavit, pros to resolve
6. Clarificatory hearing, if necessary; no
right of cross-examination (NOT
INDISPENSABLE). Questions
should be coursed through the
prosecutor.
7. Determination by prosecutor-within
10 days from termination of
investigation-whether there is ground
to hold respondent for trial.
8. Resolution:
-there is ground for trial- prepare both
the resolution and information with
certification that: a) he has examined
the complainant and witnesses b) there Rule 113. Arrest
is ground to say that a crime was
committed; c) accused probably guilty; What is arrest? (Rule 113, Sec. 1)
accused informed; d) given
opportunity to controvert

6
Arrest is the taking of a person into accused of his authority and the cause
custody in order that he may be bound to answer for the arrest.
for the commission of an offense 4. Duty to apprise the accused of his
Constitutional Rights.
How is arrest made? (Rule 113, Sec. 2)
5. Duty to deliver the accused to the
An arrest is made by an actual restraint nearest police station or jail without
of a person to be arrested, or by his submission necessary delay.
to the custody of the person making the arrest.
Rights of an Arresting Officer.
No violence or unnecessary force shall
be used in making an arrest. The person arrested 1. Summon assistance in effecting
shall not be subject to a greater restraint than is arrest.
necessary for his detention. 2. Right to break into a building or
In the issuance of a warrant of arrest, is a judge enclosure.
required to personally examine the 3. Right to break out from a building or
complainant and witnesses he may produce? enclosure.

No. He only has to personally evaluate What is the duty of an officer executing a
the resolution (from the prosecutor) and the warrant? (Rule 113, Sec. 3)
supporting evidence.
It shall be the duty of the officer
What is the lifetime of a warrant of arrest? executing the warrant to arrest the accused and
deliver him to the nearest police station or jail
There is no definite lifetime of a warrant
without unnecessary delay. This is also the same
of arrest. It remains valid and effective until it has
duty of a person making a valid warrantless
been executed or otherwise recalled by the court
arrest in case of under Sec. 5, of this rule,
issuing it.
paragraphs a and b.
What is the lifetime of a search warrant?
*If a question asks for the duty of an officer
A search warrant has a definite 10-day executing a warrant, simply state this. But if it is
lifetime from its date of issue. asking for the duties of an arresting officer in a
generic sense, enumerate the list above.
What is the remedy of a peace office if the
warrant of arrest was lost? Is there a duty by the arresting officer not
included by the Rules?
An arresting officer shall apply for an
alias warrant if the warrant of arrest is lost. Yes. It is the duty to apprise/inform the
accused of his Constitutional Rights.
Duties and Rights of an Arresting Officer
Note: Expanded Miranda Rights under the
Note: for the Duties and Rights of a Peace Officer Mahinay Doctrine. 11 Rights
Just read the codal.
What must an arresting officer inform the
Duties of an Arresting Officer. accused upon his arrest? (People v Mahinay,
1999)
1. Duty to execute warrant of arrest within
10 days from receipt. Under the Mahinay doctrine, an
2. Duty to make a report to the judge arresting officer must inform the accused of his
expanded Miranda rights as follows.
within 10 days from the expiry of the 10
day period to execute the warrant. 1. The person arrested,
3. A) In case of arrest by virtue of a warrant detained, invited or under custodial
duty by the arresting officer to inform investigation must be informed in a
the accused of his authority and the fact language known to and understood by
him of the reason for the arrest and he
that a warrant has been issued for his
must be shown the warrant of arrest, if
arrest. any; Every other warnings, information
B) In case of warrantless arrest - duty by or communication must be in a language
the arresting officer to inform the known to and understood by said
person;

7
2. He must be warned that he process that he does not wish to be
has a right to remain silent and that any questioned with warning that once he
statement he makes may be used as makes such indication, the police may
evidence against him; not interrogate him if the same had not
yet commenced, or the interrogation
3. He must be informed that he must ceased if it has already begun;
has the right to be assisted at all times
and have the presence of an 10. The person arrested
independent and competent lawyer, must be informed that his initial waiver
preferably of his own choice; of his right to remain silent, the right to
counsel or any of his rights does not bar
4. He must be informed that if him from invoking it at any time during
he has no lawyer or cannot afford the the process, regardless of whether he
services of a lawyer, one will be provided may have answered some questions or
for him; and that a lawyer may also be volunteered some statements;
engaged by any person in his behalf, or
may be appointed by the court upon 11. He must also be
petition of the person arrested or one informed that any statement or
acting in his behalf; evidence, as the case may be, obtained
in violation of any of the foregoing,
5. That whether or not the whether inculpatory or exculpatory, in
person arrested has a lawyer, he must be whole or in part, shall be inadmissible in
informed that no custodial investigation evidence.
in any form shall be conducted except in
the presence of his counsel or after a Warrantless Arrests
valid waiver has been made;
Never forget Rule 113 Sec. 5.
6. The person arrested must be
informed that, at any time, he has the Arrest without warrant; when lawful. A peace
right to communicate or confer by the officer or a private person may, without a
most expedient means telephone, warrant, arrest a person:
radio, letter or messenger with his
(a) When, in his presence, the person to be
lawyer (either retained or appointed),
arrested has committed, is actually committing,
any member of his immediate family, or
or is attempting to commit an offense;
any medical doctor, priest or minister
chosen by him or by any one from his (b) When an offense has just been committed,
immediate family or by his counsel, or be and he has probable cause to believe based on
visited by/confer with duly accredited personal knowledge of facts or circumstances
national or international non- that the person to be arrested has committed it;
government organization. It shall be the and
responsibility of the officer to ensure
that this is accomplished; (c) When the person to be arrested is a prisoner
who has escaped from a penal establishment or
7. He must be informed that he place where he is serving final judgment or is
has the right to waive any of said rights temporarily confined while his case is pending,
provided it is made voluntarily, or has escaped while being transferred from one
knowingly and intelligently and ensure confinement to another.
that he understood the same;
In cases falling under paragraph (a) and (b)
8. In addition, if the person above, the person arrested without a warrant
arrested waives his right to a lawyer, he shall be forthwith delivered to the nearest police
must be informed that it must be done station or jail and shall be proceeded against in
in writing AND in the presence of accordance with section 7 of Rule 112
counsel, otherwise, he must be warned
that the waiver is void even if he insist on Remedies
his waiver and chooses to speak;
1) If no case has been filed against
9. That the person arrested the arrested person and he remains detained, his
must be informed that he may indicate remedy is to file a petition for habeas corpus on
in any manner at any time or stage of the

8
the ground that his arrest and detention is illegal. What is recognizance?
Bail may also be posted.
When is one allowed to be released on
2) If a case has been filed against
recognizance?
the arrested person, his remedy is to file a
motion to quash the complaint or information on Recognizance is allowed in the following
the ground that the court has no jurisdiction over instances.
his person. 1. If the charge against the accused is
3) If a person has not yet been for violation of a city or municipal
arrested or detained, but there is a standing ordinance, light offense, or if the
warrant for his arrest, his remedy is to file a penalty does not exceed 6 months of
motion to quash the warrant of arrest on the imprisonment.
2. If the accused is detained for a
ground that it was improperly issued.
period equal to or more than the
4) If a person has already been
minimum imposable penalty. In such
arrested by virtue of a warrant of arrest yet he case, the accused must be released
claims that the warrant was improperly issued, immediately even without
his remedy is to file a motion to quash the recognizance.
complaint or information on the ground that the 3. If the accused is a youthful offender.
court has not acquired jurisdiction over his 4. If accused files application for
probation and he is unable to post
person.
bail
In all these cases, the accused must What are the Conditions of Bail? (Rule 114,
claim that the arrest and detention is illegal. Sec. 2)
When must the accused assail the validity of his The following are the conditions of bail.
arrest?
1. Once approved, the bail shall be
Any objection involving the arrest or the effective and remain in force at all stages
procedure in the courts acquisition of of the case unless cancelled or until
jurisdiction over the person of an accused must promulgation of the RTC whether the
be made before he enters his plea. Otherwise, case was originally filed in or appealed to
the objection is deemed waived. it.
2. That the accused shall appear in court
whenever required by court or the rules
Rule 114. Bail of court.
3. Failure to appear in court
What is bail? (Rule 114 Sec. 1) notwithstanding any waiver shall
constitute trial in absentia.
Bail is the security given for the release of a 4. That accused shall surrender him self to
person under the custody of law to guarantee
court for execution.
his appearance when required by the rules of
court or the court. When is appearance by the accused required by
the Rules of Court?
What are the forms of Bail?
The presence of the accused is required
Bail may be given in the following forms. by the rules in his arraignment and entry of plea.
(and promulgation of judgment as opined by
1. Cash deposit other authors.)
2. Property Bond a) Arraignment and Entry of Plea
3. Corporate Surety
Accused must personally enter his
4. Recognizance
plea. Without a valid plea, any
May the court insist that bail shall only be cash subsequent proceedings are void.
bond? Nonetheless, an invalid plea will bar
No. The court can never insist that only the application of Double Jeopardy.
one type or form of bail shall be posted. Doing so
violates the right of the accused to bail.

9
b) Promulgation Some authors insist What is the quantum of proof for bail
that the presence of the accused is application?
important in promulgation. The
The quantum of proof to show that the
absence of the accused during evidence of guilt for the accused is strong is clear
promulgation will not invalidate the and convincing evidence. The burden of proof
proceedings. However, it will cause belongs to the prosecution.
him to lose his remedies against a
Bail as Matter of Right, Court Discretion, or
judgment of conviction such as
Neither
reconsideration, appeal, and new
trial. Bail as a Matter of Right (Rule 114, Sec. 4)

When is appearance by the accused required by The accuseds application for bail will
the Court? always be granted by the court.

Appearance by the accused is required Bail is a matter of right in the following


by the court in the following. instances:

a) In-court Identification In a criminal 1. Before or after judgment of conviction


action, the identity of the accused by the MTC.
*thus all light offenses and correccional
just like the crime itself must be
offenses are bailable.
proven beyond reasonable doubt.
b) Trial in absencia trial in absencia 2. Before judgment of conviction by the
may proceed provided the accused RTC of offenses not punishable by death,
was given due notice for the date of reclusion perpetua or life imprisonment.
trial. *thus, during trial or before conviction
of all offenses punishable by prision
*Therefore, if a question is asked calling for the mayor and reclusion temporal are
instances when the accuseds presence is bailable.
essential, enumerate arraignment and entry of
plea, in-court identification, trial in absencia. 3. Before judgment of conviction by RTC
(promulgation may be included) for an offense punishable by death,
reclusion perpetua, or life imprisonment
Application for Bail and Determination of when the evidence of guilt is not strong.
Strength of Evidence of Guilt
Bail as a Matter of Discretion (Rule 114, Sec. 5)
Procedure:
The accuseds application for bail may or may not
1. Accused applies for bail. be granted by the court upon its discretion.
2. The court notifies the prosecution.
Bail is a matter of discretion in the following
3. Bail hearing - The prosecution presents
instances:
evidence in opposition to bail.
4. The court makes a resolution whether 1. After judgment of conviction by the RTC
the evidence of guilt is strong or not. If and the penalty is less than death,
the evidence of guilt is strong, the reclusion perpetua, and life
imprisonment provided judgment has
application is denied. Otherwise, the
not become final.
application is granted.
*An application for bail when it is a matter of
What is the remedy when the application for discretion must be filed with the RTC before the
bail is denied? records has been transmitted to the appellate
court. If the records of the case were transmitted
The remedy is to file a petition for
to the appellate court, the application for bail
certiorari under Rule 65 on the ground that the
must be filed with it.
court committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in *Thus, perfection of an appeal for offenses
denying the application for bail. punishable by prision mayor and reclusion
temporal will make the case bailable upon the
courts discretion.

10
Bail is Neither a Matter of Right nor Discretion 5 is absent or unavailable, the accused
may file bail in other MTCs or RTCs of
There is no bail allowed as it is not a matter of Baguio City. If A is arrested in Cebu, he
right or within the courts discretion. may also post bail in the RTC (first) or
MTC (secondarily) of Cebu.
1. After judgment of conviction by the RTC
of an offense punishable by death,
2. If bail is a matter of discretion or the
reclusion perpetua, or life imprisonment
accused desires recognizance, then the
and the evidence of guilt is strong.
application therefrom must be filed with
2. After judgment of conviction by the RTC
the court where the case is pending.
and the penalty imposed is death,
reclusion perpetua, or life
3. If the accused is arrested or held without
imprisonment.
any charge having been brought against
3. After judgment of conviction by the RTC
him, then the accused shall file bail in
and the penalty imposed is more than 6
any court of the city or province where
years but less than death, reclusion
he is detained. He may choose this
perpetua, or life imprisonment and the
remedy aside from petition for habeas
following bail negating circumstances
corpus.
are present:
a. The accused is a recidivist, quasi-
4. If bail is a matter of discretion, then bail
recidivist, habitual delinquent or
may be filed with the RTC that rendered
that he committed the offense with
the decision/judgment of conviction
the aggravating circumstance of
notwithstanding that a notice of appeal
reiteracion.
has been filed, provided the records of
b. The accused has escaped
the case has not yet been
confinement, evaded sentence, or
transferred/filed with the appellate
violated any of the conditions of his
court.
bail without justifiable reasons.
c. The accused is under probation,
Note: Perfection of an appeal.
parole, or conditional pardon.
An appeal is deemed perfected
d. The accused has undue risk of
if a notice of appeal has been filed within
committing another offense.
the time period for perfecting an appeal,
e. The accused has probability of flight
which is 15 days from the date of
if released on bail.
judgment by the RTC and the
Bail negating circumstances determine bail corresponding docket fees were paid.
as a matter of discretion from total denial of bail.
Significance of Perfecting an
Is the absence of any bail negating circumstance Appeal.
an assurance for the grant of bail? The moment the records of the
case have been transmitted to the
No. A finding that none of the said appellate court, the court loses its
circumstances is present will not automatically jurisdiction over the case. Once that
result in the grant of bail. Such finding will simply happens, the trial court has no authority
authorize the court to use the less stringent to rule upon the bail application of the
sound discretion approach. accused.
Where to post bail (Rule 114, Sec. 7)
5. Where the judgment of conviction
1. Bail may be filed in the court where the changes the nature of the offense from
case is pending and if the judge of that non-bailable to bailable, the bail may
court is absent or unavailable, then the only be filed with the appellate court.
bail may be filed in the RTC or MTC of the
Is bail a bar to objections on illegal arrest or
same place. If the accused is arrested in
lack of or irregular of preliminary investigation?
another place other than in which the
(Rule 114, Sec. 26)
case is pending, then bail may be filed in
the RTC or MTC of that place. No, bail is not a bar to objections on the
Eg. A is charged with Homicide. An validity of an arrest, warrant of arrest, or lack of
information was filed before the RTC or irregular preliminary investigation. This is a
Branch 5 in Baguio. If the judge of Branch deviation from the old rule where posting bail

11
cures all defects in the arrest, warrant of arrest, Cancellation by Application of bondsman:
and preliminary investigation. However, all of
those must be assailed before the accused Upon application of the bondsman with
enters his plea, otherwise their defects are due notice to the prosecution, bail may be
deemed waived. cancelled by motion or petition upon surrender
of the accused or proof of his death.
Other instances where Bail is Available
Automatic Cancellation:
Deportation Proceedings.
Cancelation of Bail is automatic upon the
For aliens undergoing deportation following:
proceedings, bail is discretionary upon the
Commissioner of Immigrations. 1. Acquittal of the accused
2. Dismissal of the case
Extradition Proceedings. 3. Execution of the judgment of
conviction
An extradite must apply for bail. He must
prove that he is not a flight risk by clear and
convincing evidence. The Extradition Court
decides whether or not to grant the bail.

Note: No bail is allowed for cases pending in


Military Tribunals.

Forfeiture of Bond (Rule 114, Sec. 21)

What happens if the accused fails to appear in


court when required?

If the accused fails to appear in court


when required by the court or by the rules of
court, the bail is ordered forfeited in favor of the
government but his bondsmen are given 30 days
to present the accuseds body in court and to
explain why no final judgment shall be rendered
against the bond and why the accused failed to
appear when first required to do so. If the
bondsmen do not comply, the bail is confiscated
in favor of the government.

Procedure:

1. The accused fails to appear in court. 2014 UPDATES IN CRIMINAL PROCEDURE - BAIL
2. The court orders forfeiture of the bond APPLICATION and MODES OF SERVICE OF
though such order is not yet final. SUBPOENA
3. The bond shall be forfeited in favor of
the government. What are the requirements for motion for bail
4. The bondsmen is given 30 days within in offenses punishable by death, reclusion
which to: perpetua, or life imprisonment? (Section 6,
a) Produce the body of their A.M. No. 12-11-2-SC, March 14, 2014)
principal
b) Explain why the accused did not As provided for in Section 6, A.M. No. 12-
appear before the court when 11-2-SC, March 14, 2014, but took effect May 1,
required to do so. 2014 (Guidelines for Decongesting Holding Jails
5. If the bondsman complies, the order of by Enforcing the Rights of Accused Persons to
forfeiture is set aside. Bail and to Speedy Trial), the requirements are:
6. If the bondsman does not comply, the
court will issue an order of confiscation a) the hearing of the motion for bail
which makes the earlier order final. shall be summary;

Cancellation of Bail (Rule 114, Sec. 22)

12
b) the prosecution has the burden of a) printouts of sent email and the
showing that the evidence of guilt is acknowledgment of the recipient;
strong;
b) printouts of electronic messages
c) if the accused wants the court to transmitted through the courts
consider his evidence, he may equipment or device and the
submit the affidavits of his witnesses acknowledgment of the recipient;
attesting to his innocence; or

d) at the hearing of the motion for bail, c) reports of phone calls made by the
the prosecution shall present its court.
witnesses with the option of
examining them on direct or
adopting the affidavits they
executed during the preliminary
investigation as their direct
testimonies;

e) the court shall examine the


witnesses on their direct
testimonies or affidavits to ascertain
if the evidence of guilt is strong;

f) the court shall then allow counsel


from both sides to examine the
witnesses as well;

g) afterwards, the court shall hear the


oral arguments of the parties on
whether the evidence of guilt is
strong;

h) within 48 hours after hearing, the


court shall issue an order containing
a brief summary of the evidence
adduced before it, followed by its
conclusion of whether the evidence
of guilt is strong.

What are the modes of service of subpoena?

Under Section 6, Rule 21 of the 1997 Rule 115. Rights of the Accused.
Rules of Civil Procedure, service of subpoena
shall be made in the same manner as personal (Just read the provision. They are better taken in
or substituted service of summons. Constitutional Law and Human Rights subjects)

However, in criminal cases, the following Note: Be sure to cite the Proper Rights.
are the additional modes of service of subpoena Just simple changes in the use of articles will
as provided for in Section 11, A.M. No. 12-11-2- change the concept of the Rights- eg. The proper
SC, March 14, 2014: right is Right Against Double Jeopardy and not
Right to Double Jeopardy; Right Against Self-
a) electronic mail (e-mail); Incrimination and not Right to Self-Incrimination;
Freedom from Arbitrary Detention not Freedom
b) mobile phone, either through
to Arbitrary Detention; Right to Confront and
phone calls or through short
Cross-examine Witnesses against him and not
messaging service.
Right against Confrontation and Cross-
How may service of subpoena be proved? examination of Witnesses presented against
him; etc.
When served by electronic mail or
mobile phone, service of subpoena may be For purposes of Criminal Procedure,
proved by: focus on the order or reverse order of trial, right

13
against double jeopardy, the right to appeal, the commit the offense or a frustration thereof
right to be informed of the charges and
accusations against the accused, freedom from
arbitrary detention, and the right to bail. The Requisites for first kind:
other rights are better discussed in political and 1. There is valid complaint or information
constitutional law subjects and evidence and 2. The complaint is filed in a court of
other remedial law subjects validity of competent jurisdiction.
extrajudicial admission, admissibility of
3. The accused is validly arraigned and has
evidence, qualification of witnesses to testify,
etc. entered his plea
4. The accused was either acquitted,
Presumption of Innocence and Order of Trial convicted, or the case against him was
The constitutional presumption of dismissed without his express consent.
innocence dictates the order of trial. It is the
prosecution that has the burden of proof to Note: For purposes of criminal procedure,
show the guilt of the accused beyond reasonable always check the first 3 requisites when a
doubt. Consequently, it is the prosecution that question on double jeopardy is raised. The fourth
starts presenting its witnesses and evidence first. requisite is a better focus in political law as it may
There can only be a reverse order of trial once involve the accuseds right to a speedy
the accused claims any of the justifying, disposition of his case. In criminal procedure, just
exempting, or any extenuating circumstances. remember that the granting of a demurrer to
All of these are in the nature of confession and evidence and discharge of an accused as a state
avoidance. witness is equivalent to acquittal.

Right to Be Informed of the Nature of the Note: IVLER DOCTRINE: A 2014 Bar Question on
Charges; Complaint/Information, Arraignment, Remedial Law is based on this case. This is a rich
and Plea source of questions in Criminal, Remedial, and
Political Law.
The right of an accused to be informed
of the nature of the charges against him dictates Facts: Jason Ivler while carelessly driving his car
the rules regarding the validity of a complaint or rammed another car, wrecking it and killing its
information, arraignment, and plea. passenger A while seriously injuring another
passenger, B. Upon the victims complaints, the
The Right Against Double Jeopardy. prosecutor filed two criminal informations
first, one for Reckless Imprudence Resulting In
Two kinds under 1987 Constitution Article III, Damage to Property and second, one for
Section 21: Reckless Imprudence Resulting In Homicide and
1. 1st kind- No person shall be twice put in Serious Physical Injuries. Ivler pleaded guilty to
the first charge upon arraignment. He was meted
jeopardy of punishment for the same
the penalty of public censure, and ordered to pay
offense. damages. When Ivler was arraigned for the
second charge, he invoked his right against
2. 2nd kind- If an act is punished by a law
double jeopardy and moved for the dismissal of
and an ordinance, conviction or acquittal the case. Ivler argued that the two crimes
under either shall constitute a bar to charged against him before the court arose from
another prosecution for the same act. only one act. The State Prosecutor argued that
the crimes of Damage to Property, Homicide,
Requisites to validly invoke Double Jeopardy: and Serious Physical Injury are different and
distinct from each other.
1. A first jeopardy must have
validly attached prior to the second May the second case proceed?
2. The first jeopardy must have
Answer: No, the second case may not proceed.
been validly terminated
There is only one crime of Reckless Imprudence
3. The second jeopardy must be for or Negligence no matter how many resulting
the same offense or the second offense includes crimes may be produced. In a case for
or is necessarily included in the offense charged imprudence or negligence, the complaint or
in the first information or is an attempt to information is for the act of negligence or
imprudence and not for its effects. Allowing

14
charges to prosper based on its effects Double Jeopardy sets in. Errors or
effectively splits a single cause of action. This irregularities, which do not render the
violates the accuseds right against double proceedings a nullity, will not defeat the
jeopardy. judgement of acquittal. These are errors of law
and not errors of jurisdiction.
(2014 Bar Question) McJolly Bee Do is a trouble-
maker of sorts, always getting into brushes with Case: (People vs Judge Hernando, 108 scra 121)
law. In one incident, he drove his Humvee The accused were charged and convicted of
recklessly, hitting a pedicab which sent its driver frustrated murder. When a new evidence and
and passengers into different directions. The witness was allegedly found out which would
pedicab driver died while two of his passengers prove the accuseds innocence, a new trial was
suffered slight physical injuries. Two (2) held. The prosecution then contended that the
informations were then filed against McJolly. facts sought to be established by the proposed
One, for Reckless Imprudence resulting in testimonies of new witnesses were not newly
Homicide and Damage to Property, and two, for discovered evidence, having been known to the
Reckless Imprudence resulting in Slight Physical accused even during the trial, and that they
Injuries. The latter case was scheduled for would not in any way alter the judgment of
arraignment earlier, on which occasion, McJolly conviction. Under the facts of the case, the Court
pleaded guilty. He was meted out the penalty of should have sustained the prosecutors
public censure. A month later, the case for argument and never had a new trial. The court
Reckless Imprudence Resulting in Homicide was proceeded to acquit the accused. On the SC
also set for arraignment. Instead of pleading, level, the SC dismissed the judge but the
McJolly interposed the defense of Double judgement of acquittal, though erroneous, was
Jeopardy. Resolve deemed valid.

Answer: Same as the earlier question.

Note: The focus of the answer depends on what


subject this question was asked. If the question
is asked in Remedial Law, the focus is on the
splitting of cause of action. If the question is
asked in Criminal and Political Law, focus on
Double Jeopardy, its concept and requisites.

By way of another example take, this question


May one foreclose a mortgage and at the same
time, file an action to recover sum of money
based on the mortgage?

Answer: (Civil Law) No, one may not avail of the


aforesaid remedies simultaneously. Availing of Rule 116. Arraignment and Plea
one is a waiver of the other. These remedies are
Rationale for Arraignment: To comply with the
in the alternative and not cumulative.
Constitutional Right of the Accused to be
Answer: (Remedial Law) No, one may not avail of informed of the nature and cause of accusations
the aforesaid remedies simultaneously. Both against him. This right may not be waived.
actions are based on a single cause of action, Arraignment is the stage where the accused is
which is the indebtedness secured by the formally informed of the charges against him.
mortgage. Splitting a single cause of action is not Due to this, strict compliance with the rules on
allowed. arraignment is needed.

*Memorize Sec. 1 of Rule 116.

Rule 116. Sec. 1: Arraignment and plea; how


made.
Judgment of Acquittal Attained Through Errors
of Law Will Attain Finality a) The accused must be arraigned before
the court where the complaint or
What if the judgement of acquittal is information was filed or assigned for
erroneous? trial. The arraignment shall be made in
open court by the judge or clerk by

15
furnishing the accused with a copy of the shall be excluded in computing the
complaint or information, reading the period.
same in the language or dialect known to
him, and asking him whether he pleads Note: Always remember that a valid arraignment
guilty or not guilty. The prosecution may and plea will cure defects in the complaint or
call at the trial witnesses other than information, preliminary investigation, and
those named in the complaint or illegality of arrest. These issues must be raised
information. before the accused is arraigned and enters his
plea.
b) The accused must present at the
What are the two parts of arraignment? / How
arraignment and must personally enter
is arraignment done? (Rule 116 Sec. 1)
his plea. Both arraignment and plea shall
be made of record, but failure to do so The two parts of arraignment are the following:
shall not affect the validity of the / Arraignment is done in the following manner:
proceedings.
1. The complaint or information furnished
c) When the accused refuses to plead or and read to the accused in an open court in a
makes a conditional plea, a plea of not language or dialect known by him.
guilty shall be entered for him.
*This may not be waived. Any defect may be
d) When the accused pleads guilty but a ground to impugn the validity of arraignment.
presents exculpatory evidence, his plea
2. The accused personally enters his plea.
shall be deemed withdrawn, and a plea
of not guilty shall be entered for him. *The presence of the accused during
arraignment is required by the Rules of Court.
e) When the accused is under preventive
detention, his case shall be raffled and Case: The accused was charged with 20 counts of
its records transmitted to the judge to estafa. Upon his arraignment, the first
whom the case was raffled within three information was read in its entirety, and the
(3) days from the filing of the accused was asked whether he pleads guilty or
information or complaint. The accused not to the charge. The accused pleaded not
shall be arraigned within ten (10) days guilty. To save time, as the other informations
from the date of raffle. The pre-trial were all substantially the same, the accused
conference of his case shall be held was simply asked whether he pleads guilty or
within ten (10) days after arraignment. not to the charge of estafa while referring to the
19 other criminal case docket numbers. The
f) The private offended party shall be contents of the subsequent 19 criminal
required to appear at the arraignment informations were never read to the accused. In
for purposes of plea bargaining, all of the charges, the accused pleaded not
determination of civil liability, and other guilty. Is the arraignment and plea valid?
matters requiring his presence. In case
of failure of the offended party to Suggested Answer which is in conformity with
appear despite due notice, the court the rules: (There is no Supreme Court Decision
may allow the accused to enter a plea of on this matter yet, but this is a prevailing practice
guilty to a lesser offense which is to save the time of Courts.) The arraignment and
necessarily included in the offense plea as to the first charge is valid while that of
charged with the conformity of the trial the succeeding 19 charges for estafa are void.
prosecutor alone. Arraignment shall be made by furnishing the
accused with a copy of the complaint or
g) Unless a shorter period is provided by information, reading the same the language
special law or Supreme Court circular, and dialect known to him, and asking whether
the arraignment shall be held within he pleads guilty or not. Strict compliance with
thirty (30) days from the date of the the Rules on Arraignment is needed since this is
court acquires jurisdiction over the the stage where the accused is formally
person of the accused. The time of the informed of the nature and cause of accusations
pendency of a motion to quash or for a against him.
bill of particulars or other causes
Strict Compliance with the Rules on
justifying suspension of the arraignment
Arraignment and Plea is Needed

16
Note: *Any defect in the arraignment and plea Answer: Yes. The presence of the accused is
will make the subsequent proceedings void. But required by the Rules during Arraignment. As
even so, without a valid plea and arraignment, such, he may not waive his right to be present at
the right against double jeopardy may not set in. all stages of the proceedings.

Note: *In order to have a valid trial in absencia, *Refer to earlier discussions on when is the
the accused must have been validly arraigned accuseds presence required by Court or by the
and his plea validly entered. Rules of Court.

But an Accuseds Constitutional Right to Due The Offended Partys Presence is Needed
Process and Right to be Informed of the Nature During Arraignment and Plea
and Cause of Accusation Against Him May be
Satisfied even without Strict Compliance to the Note: It is not just the accused that must be
Rules of Arraignment and Plea. present during the arraignment and plea. The
offended party must also be present during
Note: *While as a rule, strict compliance with the arraignment and plea for purposes of plea
rules of arraignment and plea is required, there bargaining, determination of the accuseds civil
are exceptional instances when the Supreme liability, and other matters requiring his
Court ruled that compliance with the presence. When an accused pleads not guilty, it
Constitutional Right of the Accused to be constitutes a joinder of issues in the criminal
informed of the nature and cause of accusation action.
against him and to due process has been
sufficient despite errors in the arraignment and But absence of the Offended Party
plea. during Arraignment and Plea will not render
subsequent proceedings void.
Case: The accused is arraigned after trial when
the prosecution has rested its case and the Accused Must Personally Enter His Plea
defense presented is evidence. In this case, the
General Rule: The accused must personally
defense counsel actively participated in the trial
enter his plea.
and the Supreme Court ruled that by such act,
the accused was aware of the nature and charges Instances where the Court enters a plea of not
against him and he was given his day in Court. guilty.
(People v Pangilinan, 518 SCRA 358)
1) The accused refuses to enter a plea,
This is a very exceptional case so caution such as in cases where the accused
must be taken in answering questions presenting wants to quash the information or
situations where one is required to look into the hold in abeyance the proceedings to
validity of the arraignment and plea. Wait for the conduct preliminary investigation.
circumstances justifying the exceptions to arise 2) The accused enters a conditional
before ruling that the arraignment is valid. plea of guilty. A conditional plea of
guilty is not a valid plea.
In what court must arraignment be made?/
Eg. of a conditional plea - I admit
Where is arraignment made? (Rule 116 Sec. 1)
raping the victim but she seduced
The accused must be arraigned before me.
the court where the complaint or information - I killed the victim but it was
was filed or assigned for trial. in self-defense.
- Pleading guilty to an offense
Effect of Accuseds Nonappearance During charged but asking for a
Arraignment on his Bail Bond. lesser penalty to be
imposed.
Question: May his bond be forfeited if the
accused does not appear during trial? 3) The accused pleads guilty but
presents exculpatory evidence.
Answer: Not necessarily. The accused may waive
Eg.- The accused admits the killing
the right to be present at court so that failure to
but the defense asks that the court
appear in court does not automatically lead to
allow them to prove the
forfeiture of bail.
circumstance of incomplete self-
Question: May his bond be forfeited if the defense.
accused does not appear during arraignment?

17
Case: Accused was charged with homicide Plea of Guilty in a Capital Offense
wherein he pleaded guilty with condition to
prove incomplete self defense. The judge found Note: (Rule 116 Sec. 3) *There is no rule
evidence for complete self defense and thus requiring automatic conviction upon plea of
acquitted the accused. In the present case, it is guilty for a capital offense. Instead, the court
true, the accused had first entered a plea of shall conduct a searching inquiry into the
guilty. Subsequently, however, he testified, in voluntariness and full comprehension of the
the course of being allowed to prove mitigating consequences of his plea and shall require the
circumstances that he acted in complete self- prosecution to prove his guilt and the precise
defense. Said testimony, therefore as the degree of culpability. The accused may present
court a quo recognized in its decision had the evidence in his behalf.
effect of vacating his plea of guilty and the court
Plea of Guilty to a Non-Capital Offense
a quo should have required him to plead anew
on the charge, or at least direct that a new plea (Rule 116 Sec. 3) When the accused
of not guilty be entered for him. Acquittal in pleads guilty to a non-capital offense, the court
such manner deprives the prosecution of due may receive evidence from the parties to
process. If a subsequent case is filed, it may determine the penalty to be imposed.
proceed. There will be no double jeopardy as he
was not validly arraigned. (People v Balisacan, Plea Bargaining
17 SCRA 1119)
In a plea bargaining, the accused pleads
Effect of Entering Plea guilty to a lesser offense necessarily included in
the offense charged or pleads guilty to an
*Entering a plea of not guilty constitutes account involved in multiple accounts.
joinder of issues in the criminal case.
Eg. An accused is charged of rape. He
*Entering a plea of guilty is a judicial pleads guilty to seduction or acts of
confession of guilt. All the material facts alleged lasciviousness.
in the information, including aggravating
circumstances are admitted. However, What are the requisites of a valid plea bargain?
conclusions of law are not admitted. (Note: This (Sec. 2, Rule 116)
is the same effect as that of filing a demurrer to
evidence.) The requisites of a valid plea bargain are
the following.
Voluntary Plea and Involuntary Plea
a. Consent of the offended party.
Voluntary Plea: A voluntary plea will always cure b. Consent of the prosecutor.
defects in the complaint or information, c. Approval of the court.
preliminary investigation, or illegality of arrest.
May a plea for a lesser offense with the consent
Involuntary Plea: The plea was not made by the of the prosecutor be valid even without the
accused but by the Court. consent of the offended party? (Rule 116 Sec. 1
[f])
The accused, who claims that he was illegally
arrested, refused to enter a plea when Yes, provided the offended party is duly
arraigned; whereupon, the court entered a plea notified of the arraignment but notwithstanding
of not guilty for him. May he still question the the notice, he failed to appear for arraignment.
validity of his arrest? (Dean Agras lectures and
2014 Q and A) When is plea bargaining allowed?

Yes. The principle that the accused is Plea bargaining is allowed in the
precluded from questioning the legality of his following instances.
arrest after arraignment is true only if he
1. During arraignment, and
voluntarily enters his plea and participates
2. After arraignment but before trial
during the trial, without previously invoking his
objections thereto. (Borlongan Jr. v. Pena, et al. May plea bargain be allowed even after the trial
G.R. No. 143591, Nov. 23, 2007). Thus, the has begun? (Daan v. Sandiganbayan GR No.
accused may still question the legality oh his 163972-77, March 28, 2008 citing People v.
arrest, etc. where, at the arraignment, it is the Villarama, GR No. 99287, June 23, 1992, 210
court that entered the plea of not guilty for him. SCRA 4266)

18
Yes, plea bargaining is valid even after *Note: The material matter is averred but it is
the prosecution rested its case provided that not averred with sufficient definiteness or
the prosecution does not have sufficient particularity. In other words, the material
evidence to convict the accused of the crime averment is complete but unclear. If the material
charged. This is an exception to the rule that matter is not averred, the complaint or
plea bargaining is only allowed during information may or may not be defective.
arraignment or after arraignment but before
trial. What is the purpose of a Bill of Particular in a
Criminal Case?
Is there Double Jeopardy in Plea Bargaining?
A bill of particular in a criminal case
None. enables the accused to properly plead and
prepare for trial. In civil case, its purpose is to
Is there a need to amend the complaint or enable a party to properly prepare his responsive
information in Plea Bargaining? (Rule 116 Sec. pleading.
2)
Is a bill of particular a mode of discovery?
No, amendment of the complaint or
information is not necessary. No, a bill of particular is not mode of
discovery.
Suspension of Arraignment
May a bill of particular cure any defects in the
May arraignment be suspended? (Rule 116 Sec. complaint or information?
11)
No. It is not the office of a bill of
Yes, arraignment may be suspended on particulars to supply material allegations
the following grounds. necessary to the validity of a pleading, or to
change a cause of action or defense stated in the
a. The accused appears to be suffering
pleading, or to state a cause of action or defense
from an unsound mental condition
other than the one stated.
which effectively renders him unable to
fully understand the charge against him Mode of Discovery in Criminal Case:
and to plead intelligently thereto. Production or Inspection of Material Evidence
b. Existence of a prejudicial question in Possession of the Prosecution. (Rule 116 Sec.
c. Pendency of a petition for review of the 10)
resolution of the prosecutor either at
the DOJ of the Office of the President. Upon motion of the accused showing
The period of suspension shall not good cause and with notice to the parties, the
exceed sixty (60 days) counted from the court, in order to prevent surprise, suppression
filing of the petition with the reviewing or alteration, may order the prosecution to
office. produce and permit the inspection and copying
or photographing of any written statement given
Bill of Particular (Rule 116 Sec. 9) by the complainant and other witnesses in any
investigation of the offense conducted by the
If the complaint or information is vague,
prosecution or other investigating officers as
the accused may move/file a motion for bill of
well as any designated documents, papers,
particulars to enable himself to properly plead
books, accounts, letters, photographs, objects or
and prepare for trial.
other tangible things, not otherwise privileged,
When may a bill of particular be filed? which constitute or contain evidence material to
any matter involved in the case and which are
A Bill of particular is filed before under the possession or control of the
arraignment. prosecution, police, or other law investigating
agencies.
What is the ground for filing a bill of particular?
Is it necessary that the accused allege that he
A bill of particular is filed when the intends to use as evidence the material
complaint or information is vague, or any matter evidence in possession of the prosecution,
is not averred with sufficient definiteness or police, or other law investigating agencies?
particularity to enable the accused to properly
plead and prepare for trial. No. There is no rule requiring that the
accused must aver and intend to use the pieces

19
of evidence he intends to be produced by the 3) The court trying the accused has no
prosecution. In fact, he may not even use or copy jurisdiction over the person of the accused; (Lack
any of the material evidence that he moves to be of jurisdiction over the person of the accused)
produced by the prosecution.
4) The officer who filed the information had no
Are there evidence that the prosecution, police, authority to do so.
or other law investigating agencies may not
produce despite motion by the accused and 5) The complaint or information does not
order of the court? conform substantially to the prescribed form.

Yes. These are documents, papers, 6) More than one offense is charged except
books, accounts, letters, photographs, objects, when a single punishment for various offenses is
or tangible things which are privileged. The prescribed by law.
prosecution, police, or other law investigating
7) The criminal action or liability has been
agency though must show the nature of such
extinguished. (Extinction of penal action)
evidence as privileged.
8) The complaint or information contains
Note: The other modes of discovery available in
averments which, if true, would constitute a
a civil case may be availed of in a criminal case.
legal excuse or justification, and;

Eg. The information avers that the


accused is insane or a minor.

Rule 117 Motion to Quash 9) The accused has been previously convicted or
acquitted of the offense charged, or the case
*Note: When to file a motion to quash and against him was dismissed or otherwise
effect of not filing a motion to quash (refer to terminated without his express consent. (Double
earlier discussions) jeopardy)

What is the form of a motion to quash? (Rule


117, Sec. 2)
Test for Sufficiency of the Complaint or
It is in writing. Information

Who files it? (Rule 117, Sec.2) By way of Jurisprudence: An information is


sufficient if its averments, if hypothetically
It is only the accused or his counsel who admitted, whether the facts alleged would
files the motion. establish the essential elements of the offense as
defined by law without considering matters
What is the nature of a motion to quash?
aliunde.
A motion to quash is a class by itself/sue
Note: This is very similar to the test to determine
generis. It is filed only upon the grounds
the sufficiency of a petition or complaint in a civil
mentioned in Rule 117, Sec. 3. There can never
action.
be any other grounds for a motion to quash
criminal informations except those provided Only the ultimate, and not evidentiary
under Rule 117, Sec. 3. facts are considered. Ultimate facts are those
that allege the cause of action or elements of a
Grounds for Filing a Motion to Quash (Rule 117,
crime. Evidentiary facts are those that support
Sec. 3)
the allegations of the ultimate facts.
*Note: These grounds are exclusive. Memorize
Eg. In a petition for declaration of nullity
these grounds.
of marriage for absence of essential requisites,
1) The facts charged do not constitute an the following will be the ultimate facts:
offense;
a) The parties were married.
2) The court trying the case has no jurisdiction b) At the time the parties were
over the offense; (Lack of jurisdiction over the married, either or both of them do
offense) not possess all the essential
elements for marriage ie consent,
contracting capacity such as legal

20
age, former marriage that has not What is the remedy of an accused whose
been nullified or annulled, etc. motion to quash has been denied?
If applicable, the following are
added: The accused whose motion to quash has
c) Allegations as to having children and been denied must enter his plea and go for trial.
their custody;
What if the accused still wants to question the
d) Allegations as to acquisition of
order of the Court denying his Motion to
property;
Quash?
The evidentiary facts will be the
The accused must resort to a Rule 65
following:
petition/ Petition for Certiorari under Rule 65.
a) How the parties met;
Note: Appeal is not the proper remedy in case
b) Making allegations as to
the motion to quash is denied. There being no
psychological incapacity;
appeal, if the accused still wants to question the
c) Describing their life and feelings
order denying the motion to quash, he must
before and after the marriage;
resort to a Rule 65 Petition/Petition for Certiorari
Simply said: under Rule 65. Nonetheless, before such petition
may be acted upon, two things need to be
Sufficiency of Criminal Information: A criminal alleged and shown:
information is complete, if by just looking at it, a
judgment of conviction may be had. / It can a) first, there is no appeal, or any
sustain a judgment of conviction. other plain, adequate, and speedy
remedy provided for by law and;
Sufficiency of a Complaint/Petition in a Civil b) second, the grounds for the
Action/ Special Proceeding: A complaint is petition must be alleged and shown
sufficient, if just by itself, judgment may be grave or abuse of discretion resulting to
rendered in favor of the plaintiff and granting the lack or excess of jurisdiction or lack or
prayers therein. excess of jurisdiction.

Note: Courts are given a wide array of discretion.


It is only grave abuse of discretion amounting to
Are there grounds for a motion to quash that lack or excess or jurisdiction that is condemned
may not be waived? by the rules.
Yes. As a rule, failure to file a motion to By simply alleging and invoking the grounds and
quash constitutes a waiver over its grounds. requisites for a Rule 65 petition, is the Court
However, the following grounds may not be mandated to entertain such petition?
waived:
No. Claiming that the court acted with
1) The facts averred do not constitute grave abuse of discretion amounting to lack or
an offense. excess of jurisdiction, lack or excess of
2) Jurisdiction over the offense is jurisdiction, or invoking substantial justice,
absent. liberal application or rules are never magic words
3) Extinction of Criminal Liability that will automatically warrant the Courts to
4) Double Jeopardy review its findings.
Is a court mandated to grant a motion to quash?

No. A court may always grant or deny a Granting a Motion to Quash


motion to quash upon its discretion.
What is the prosecutions remedy in case a
Denial of a Motion to Quash motion to quash is granted?
What is the implication of a courts denial of a The following are the remedies
motion to quash? available to the prosecution when a motion to
quash has been granted.
The Court is not persuaded by the
accuseds argument. 1) Amend the complaint or information if
such cures the defect.

21
Eg. Duplicity of complaint or accused cannot be said to be in second jeopardy
information; The facts charged do not if indicted for the second offense.
constitute an offense.
2) Refile the complaint or information. A new fact supervenes which, would
Eg. Lack of jurisdiction over the offense. change the nature of the crime.
3) Appeal from the order granting the
Origin of the Rule
motion to quash. This is applicable only
if the motion to quash is sustained on (P vs. Tarok, 73 Phil. 260; P vs. Villasis, 46 O.G.
the grounds of extinction of criminal 268; Melo vs. People, 85 Phil. 766; P vs. Buling,
liability and double jeopardy. 107 Phil. 712; P vs. Adil, 76 SCRA 462; P. vs. Tac-
Sustaining a motion to quash over the an, 182 SCRA 601; and P vs. City Court of Manila,
said grounds constitutes a final order or 121 SCRA 637)
an adjudication over the merits of the
case, which is the proper subject of an This present rule was brought about as a
appeal. Appeal is available only for a result of jurisprudence.
final order or an adjudication by merits,
and not for interlocutory orders. Prior to this rule, there is this case where
a former charge of grave physical injuries was
not allowed to be amended to Homicide. In this
case, the charge for Grave Physical Injuries was
Void and Defective Information filed while the victim is still in the hospital. The
accused was arraigned, and he entered a plea of
A void information may be assailed
not guilty. Subsequently, the victim died of his
anytime while a defective information may only
injuries. When the prosecutor expressed his
be assailed before arraignment. A void
desire to upgrade the former charge, the Court
information does not confer any jurisdiction to
ruled that it may not be allowed as Double
the courts over the offense while the defects in
Jeopardy has set in. In another case, an accused
a defective information may be waived and the
was charged with serious physical injuries, for
courts may still acquire jurisdiction over the
which he was convicted. When the victim, who
offense.
happens to be his own wife, died from meningitis
Rule on Supervening Facts (Rule 117 Sec. 7) contracted from her injuries, the Court did not
allow the second charge of parricide to prosper
*Rule 117 Sec 7 is otherwise known as the (People v Taroc, 73 Phil 260).
Supervening Fact Doctrine
These doctrines were later abandoned,
The conviction of the accused shall not wherein in one case, the accused was initially
be a bar to another prosecution for an offense charged with frustrated homicide. After his
which necessarily includes the offense charged arraignment, the victim died, and the
in the former complaint or information under information was amended into one for
any of the following instances. consummated homicide. The Court abandoned
its former rulings and allowed the second charge
a) The graver offense developed due to to prosper (Melo v People, 85 Phil 766).
supervening facts arising from the same
act or omission constituting the former In another similar case, an accused was
charge. charged for Grave Physical Injuries. His
b) The facts constituting the graver charge arraignment was scheduled in the afternoon. On
become known or were discovered only the morning of the day of his arraignment, the
after a plea was entered in the former victim died and the accused was informed of it.
complaint of information; or The accused kept silent and never informed the
c) The plea of guilty prosecutor or the court. The prosecutor and
court were unaware that the victim died.
Note: that this is an exception to the general rule Arraignment and plea proceeded as scheduled.
on Double Jeopardy. Upon learning that the victim died, the
prosecutor expressed his desire to upgrade the
Note: Where after the first prosecution, a new
offense from Grave Physical Injuries to
fact supervenes for which the defendant is
Homicide. This time, the Court allowed it. It
responsible, which changes the character of the
pointed out that the accused knowingly pleaded
offense and, together with the facts existing
to the lesser offense. (People v Espino, 69 Phil
at the time,
471)
constitutes a new and distinct offense, the

22
This was reiterated in another case jeopardy for the same offense or for an offense
(People v City Court of Manila 121 SCRA 637 necessary included therein.
compare this with the Ivler Doctrine). The
accused was charged with Reckless Imprudence May the Offended Party oppose the granting of
Resulting In Serious Physical Injuries and the a Provisional Dismissal?
accused pleaded to such. However, the victim
No. In fact, provisional dismissal is
died on the day that the first information was
favorable to the offended party especially for
filed. The information was amended into a
purposes of locating witnesses for the
charge for Reckless Imprudence Resulting In
prosecution. Provisional Dismissal is designed to
Homicide. On the issue whether double jeopardy
counter the possibility of an accused invoking his
has set in preventing the amended charge to
Constitutional Right to Speedy Trial.
prosper, the Court ruled that there will be
double jeopardy if the accused is unaware that May a provisional dismissal become
the victim is dead while entering the plea. But if permanent?
the accused is aware that the victim died and
still he entered a guilty plea, there will be no Yes, provided the case has not been
double jeopardy. revived and after the lapse of one or two years
from the issuance of the order granting
People v City Court of Manila, 121 SCRA 637 provisional dismissal, as the case may be. (This is
known as the Time Bar rule)
The victim died on the day that the first
information for Reckless Imprudence Resulting Penalty of the Number of Years
in Serious Physical Injuries was filed. 2 days later, Offense Charged before provisional
the accused was arraigned, pleaded guilty, and dismissal becomes
was sentenced. The prosecutor though, received final
information that the victim died. He moved to Imprisonment of not 1 year
hold in abeyance the arraignment and more than 6 years
proceedings in the first charge to allow Fine only 1 year
amendment of the information. The court did Imprisonment of 2 years
not allow it. When the amended information was more than 6 years
filed, the Court dismissed it. It made this
pronouncement, the accused was arraigned,
pleaded guilty and sentenced accordingly. Thus, Distinctions Between Motion to Quash and
jeopardy had attached and no new fact Provisional Dismissal
supervened after the arraignment and
conviction of the accused. Motion to Provisional
Quash Dismissal
Form Should be in May be in any
writing form
Provisional Dismissal (Rule 117 Sec. 8)
Who Files Filed by the Either filed by
A provisional dismissal is one where the Accused the accused,
dismissal is merely temporary. prosecution,
or both.
What are the requisites of a valid provisional When to File Before Entering Anytime
dismissal? Plea
Grounds for Exclusive- only Any ground
A case shall not be provisionally Filing those found in will do
dismissed except with the express consent of the Rule 117, Sec. 3
accused and with notice to the offended party. Effect Bars Shortens the
Why is the express consent of the accused Continuation of period of
needed? (People v Lacson GR No. 149453, April Proceedings Prescription
1, 2003)

The raison d etre for the requirement of *Note: Another exceptional case of People v.
the express consent of the accused to a Lacson, GR No. 149453, April 1, 2003 (When the
provisional dismissal of a criminal case is to bar Ivler case was penned in 2010, reviewers and
him from subsequently asserting that the revival authors all claimed that it will be asked sooner or
of the criminal case will place him in double later. It has been asked in the 2014 Bar. The

23
Lacson case is considered as a potential bar arrested, or be placed under the custody of law
question as well ever since it was penned. before his petition will be acted upon.

In Lacson, Lacson filed a motion to 2014 Bar Question: A was charged before the
determine probable cause in the arrest warrants Sandiganbayan with a crime of plunder, a non-
and information filed against him in connection bailable offense, where the court had already
with the Kuratong Baleleng Shoot outs. The issued a warrant for his arrest. Without A being
prosecution moved for provisionary dismissal of arrested, his lawyer filed a Motion to Quash
the cases. No notices of the court orders were Arrest Warrant and to Fix Bail, arguing that the
given to the victims heirs. allegations in the information did not charge the
crime of plunder but a crime of malversation, a
(Patalastas- Allegedly, the heirs were paid blood bailable offense. The court denied the motion on
money amounting to 400 thousand pesos each, the ground that it had not yet acquired
a huge sum at the time the shootout took place. jurisdiction over the person of the accused and
Hehe) that the accused should be under the custody of
the court since the crime charged is non-bailable.
Doctrines in Lacson:
The accuseds lawyer counter-argued that the
- A motion to determine probable cause court can rule on the matter even if the accused
filed by the accused is not equivalent to his was at large because it had jurisdiction over the
express consent. case. According to the said lawyer, there was no
need for the accused to be under the custody of
- The State may revive a criminal case the court because what was filed was a Motion
beyond the one-year or two-year periods (of the to Quash Warrant of Arrest and to Fix Bail, not a
time bar rule) provided that there is a justifiable Petition for Bail.
necessity for the delay.
A) If you are the Sandiganbayan, how will
- Lacson construed the phrase after the you rule on the motion?
issuance of the order of provisional dismissal to B) If the Sandiganbayan denies the motion,
mean as after service of the order of dismissal what judicial remedy should the accused
on the public prosecutor who has control of the undertake?
prosecution without the criminal case being
revived. Answers:

Note: In another case involving Lacson, A) As the Sandiganbayan, I will


(Secretary v Lacson, 1999) it was held that entertain the motion, denying or granting it as
Criminal Laws may not be given retroactive the case maybe depending on whether the
effect even if they favor the accused who is not ground sought for is meritorious. I may not deny
a habitual delinquent, and even if the law does it solely on the basis the court has yet to acquire
not prohibit retroactive effect if doing so will jurisdiction over the person of the accused.
result into grave injustice. There is no rule requiring that the accused must
surrender, be arrested, or be placed under the
Some authors and reviewers actually say custody of law before his motion to quash may
that Lacson is one single person who can change be acted upon.
the legal landscape of criminal laws.
B) The accused should prepare for
trial or resort to a petition for Certiorari under
Rule 65 of the Revised Rules of Court. The
Motion to Quash Warrant of Arrest
remedy of appeal is not available in an order
Note: Refer to earlier discussions on the finding denying a motion to quash a warrant of arrest.
of probable cause to issue warrant of arrest and Without appeal, or any other plain, adequate,
the remedies for an accused who claims to be and speedy remedy available, a petition under
illegally arrested or detained. Rule 65 is appropriate but only upon the grounds
of grave abuse of discretion resulting to lack or
Note: There is no rule requiring that the accused excess of jurisdiction, or lack or excess of
must surrender, be arrested or be placed under jurisdiction.
the custody of law before his motion to quash
the warrant of arrest may be acted upon.

But in a petition for bail, the accused


needs to surrender before the court, be

24
Rule 118: Pre-Trial To speed up court proceedings, the
Supreme Court through its rule making power
What is the nature of a pre-trial? (Rule 118, Sec. issued the Judicial Affidavit Rule.
1)
Judicial Affidavits take the place of direct
-A pre-trial, whether in a criminal or civil case is testimonies of the parties to a case and their
always mandatory. It may never be dispensed witnesses. Instead of a party or a witness going
with. to court and being asked questions by the
counsel for his testimony, their direct
-In criminal cases cognizable by the
testimonies are now being taken outside of the
Sandiganbayan, Regional Trial Court,
court through their judicial affidavits.
Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court and Municipal Contents of Judicial Affidavits:
Circuit Trial Court.
Section 3. Contents of Judicial Affidavit-
Purpose of Pre-trial (Rule 118, Sec. 1) A judicial affidavit shall be prepared in the
language known to the witness and, if not in
Pre-trial considers the following:
English or Filipino, accompanied by a translation
a) Plea bargaining in English or Filipino, and shall contain the
b) Stipulation of Facts following:
c) Marking for Identification of evidence of
(a) The name, age, residence or
the parties
business address, and occupation of the witness;
d) Waiver of objections to admissibility of
(b) The name and address of the
evidence
lawyer who conducts or supervises the
e) Modification of the order of trial if the
examination of the witness and the place where
accused admits the charge but
the examination is being held;
interposes a lawful defense; and
(c) A statement that the witness is
f) Such matters as will promote a fair and
answering the questions asked of him, fully
expeditious trial of the criminal and civil
conscious that he does so under oath, and that
aspects of the case.
he may face criminal liability for false testimony
Note: Plea bargaining is proper in Pre-trial. or perjury;
(d) Questions asked of the witness
Facts stipulated upon are among those and his corresponding answers, consecutively
that need not be proved during trial. numbered, that:
(1) Show the circumstances
Evidence that were not presented and under which the witness
marked during the pre-trial, and subsequently acquired the facts upon
are not included in the pre-trial order, may be which he testifies;
objected to when presented and offered during (2) Elicit from him those facts
trial. which are relevant to the
issues that the case
*Waiving objections over the
presents; and
admissibility of the opposing partys evidence is
(3) Identify the attached
probably the most useless purpose of pre-trial.
documentary and object
Neither the prosecutor nor defense, in his right
evidence and establish their
mind would waive his objections over the
authenticity in accordance
opposing partys evidence.
with the Rules Of Court;
When is pre-trial held? (e) The signature of the witness
over his printed name; and
Pre-trial shall be held after arraignment (f) A jurat with the signature of the
and within thirty (30) days from the date the notary public who administers the oath or an
court acquires jurisdiction over the person of the officer who is authorized by law to administer
accused, unless a shorter period is provided for the same.
in special laws or circulars of the Supreme Court.
Attestation Clause:
Note: A pre-trial needs a Notice of Pre-trial.
Section 4. Sworn Attestation of the
Note: AM No. 12-8-8-SC or Judicial Affidavit Lawyer.
Rule (JAR)

25
(a) The judicial affidavit shall testimonies of the accused and his witnesses
contain an attestation at the end, executed by when they appear before the court to testify.
the lawyer who conducted or supervised the
examination of the witness, to the effect that: What is the effect of non-compliance with the
(1) He faithfully recorded or Judicial Affidavit Rule?
caused to be recorded the
This is answered by Section 10 of the
questions he asked and the
Rule.
corresponding answers that
the witness gave; and Sec. 10. Effect of Non-compliance with
(2) Neither he nor any other the Judicial Affidavit Rule.
person then present or
assisting him coached the (a) A party who fails to submit the
witness regarding the required judicial affidavits and exhibits on time
latters answer; shall be deemed to have waived their
(b) A false attestation shall subject submission. The court, may, however, allow only
the lawyer mentioned to disciplinary action, once the late submission of the same provided,
including disbarment. the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting
Application of JAR in criminal proceedings: party pays a find of not less than P 1,000.00 nor
more than P 5,000.00, at the discretion of the
In criminal cases the application of the Judicial
court.
Affidavit Rule as well as the time for its
(b) The court shall not consider the
submission are all provided for in Sec. 9 of the
affidavit of any witness who fails to appear at the
Rule or AM No. 12-8-8-SC.
scheduled hearing of the case as required.
Sec. 9. Application of the Rule to all Counsel who fails to appear without valid cause
criminal actions. (a) This rule shall apply to all despite due notice shall be deemed to have
criminal actions: waived his clients right to confront by cross-
examination the witnesses there present.
(1) Where the maximum of the
imposable penalty does not exceed six years; The court shall not admit as evidence judicial
(2) Where the accused agrees to affidavits that do not conform to the content
the use of judicial affidavit irrespective of the requirements of Section 3 and attestation
penalty involved; or requirement of Section 4 above. The court, may,
(3) With respect to the civil aspect however allow only once the compliant
of the actions, whatever the penalties involved replacement affidavits before the hearing or trial
are. provided the delay is for a valid reason and
would not unduly prejudice the opposing party
(b) The prosecution shall submit the and provided further, that public or private
judicial affidavits of its witnesses not later than counsel responsible for their preparation and
five (5) days before pre-trial, serving copies of submission pays a fine of not less than P 1,000.00
the same upon the accused. The complainant or nor more than P 5,000.00, at the discretion of
the public prosecutor shall attach to the the court.
affidavits such documentary or object evidence
as he may have, marking them as Exhibits A, B, C, Pre-trial Agreement (Rule 118, Sec. 2)
and so on. No further judicial affidavit,
All agreements or admissions made or
documentary, or object evidence shall be
entered during pre-trial conference shall be
admitted at the trial.
reduced in writing and signed by the accused and
(b) If the accused desires to be heard on counsel, otherwise, they cannot be used against
his defense after receipt of the judicial affidavits the accused. The agreements covering the
of the prosecution, he shall have the option to matters referred to in section 1 of this Rule shall
submit his judicial affidavits as well as those of be approved by the court.
his witnesses to the court within ten (10) days
What are the requisites of a valid pre-trial
from receipt of such affidavits and serve a copy
agreement?
of each on the public and private prosecutor,
including his documentary and object evidence The following are the requisites of a valid
previously marked as Exhibits 1, 2, 3, and so on. pre-trial agreement.
These affidavits shall serve as the direct
a) It must be in writing.

26
b) It must be signed by the accused and a secretary of the embassy or legation, consul-
counsel. general, consul, vice-consul, or consular agent or
by any officer in the foreign service of the
Note: Absent any of the above requisites, any Philippines stationed in the foreign country in
admission made by the accused during pre-trial, which the record is kept, and authenticated by
may not be used against him. the seal of his office.
General Rule: Allegations must be proven. Alternative Dispute Resolution (ADR)
Exception/ (What need not be proven):
What are the modes of alternative dispute
1) Judicial admission entered at the resolution?
pre-trial signed by the accused and
counsel. The following are the modes of
2) Matters that can be taken judicial alternative dispute resolution.
notice of.
*Judicial Notice connotes that a a) Mediation
matter is considered as fact without b) Conciliation
any proof. Judicial notice may be c) Mini trial
mandatory or discretionary but d) Early Neutral Evaluation
these are better taken in the subject e) Arbitration
of evidence. f) Proceedings before the Philippine
Eg of Judicial Notice. Mediation Center
g) Any combination of the foregoing
Witness (W): I saw the accused at 10
Proceedings before the Philippine Mediation
am in the morning.
Center (PMC) / Court Annexed Mediation
Prosecutor (P): Is the sun up when
(CAM)
you saw him?
Instead of the asking whether Before pre-trial and trial, criminal cases
the sun is up or is it daytime that may be the subject of mediation are brought
during 10am, the court may before the PMC for CAM.
simply take judicial notice of it.
The purpose of CAM is settlement.
W: Im a student at UP.
P: Is UP a market? Proceedings before the CAM are
*Again, instead of adducing unrecorded and confidential. It lasts for a 30-day
evidence that UP is school or period which may be extended for another 30-
university, the court may simply take day period. If no settlement will be arrived at,
judicial notice of it. the case is brought back to the Courts for Judicial
Dispute Resolution.
Doctrine of Processual Presumption/
Presumed Identity Approach What crimes may be the subject of mediation?

May courts take judicial notice of foreign laws? The civil aspect of following crimes may
be the subject of mediation.
No. Foreign laws are never the subject of
judicial notice. They must be properly alleged in a) Estafa
a pleading and duly proved. In case a foreign law b) Violation of BP 22
is not alleged or it is not duly proven, it is c) Theft
presumed to be identical with the local law. d) Malicious Mischief
e) Slander or Libel
How are foreign laws proven? (Rule 132 Sec. 24) f) Quasi-offenses except those that
result to physical injuries or death
Foreign laws may be evidenced by an
official publication thereof or by a copy attested Pre-trial in Civil Cases Compared to Pre-trial in
by the officer having the legal custody of the Criminal Cases
record, or by his deputy, and accompanied, if the
record is not kept in the Philippines, with a Civil Case Criminal
certificate that such officer has the custody. If Case
the office in which the record is kept is in a How The Court The court
foreign country, the certificate may be made by initiated: moto proprio moto proprio
or upon an ex-

27
parte motion who is
by the plaintiff sanctioned)
When held: After all After Necessity The parties are Pre-trial
pleadings have arraignment of Pre-trial required to file briefs are not
been served and within Brief and serve their mandated by
and filed. thirty (30) respective pre- the rules.
days from trial briefs. The rules are
the date the silent as to its
court necessity.
acquires Record There is no There is strict
jurisdiction During Pre- such rule requirement
over the trial. requiring that that all
person of the admissions or agreements
accused. agreements be and
Purpose: Possibility of Plea in writing and admissions
Amicable bargaining, signed by the made by the
Settlement or stipulation of parties accused be in
submission to facts, otherwise they writing and
the alternative marking of cannot be used signed by
modes of evidence, against them. him and his
dispute waiver of counsel,
resolution objections to otherwise,
admissibility they cannot
of evidence, be used
modification against him.
of the order
of trial, other
matters that
will promote
a fair and
expeditious Over-all Diagram of Mediation and Court
trial Proceedings
Imposition The If the counsel
of nonappearance for the
Sanctions of the plaintiff accused or
for Failure warrants the the
to Appear dismissal of his prosecutor
during Pre- action. The does not
trial: nonappearance appear
by the during pre-
defendant trial
warrants the conference
presentation of and does not
evidence by the offer an
plaintiff, ex- acceptable
parte. excuse for
(It is the party his lack of
who is cooperation,
sanctioned) the court
may impose
proper
sanctions or
penalties. (It
is the
accuseds
counsel or
prosecutor

28
What is the remedy of the accused that is not
brought to trial within the prescribed period?
(Rule 119 Sec 9)

If the accused is not brought to trial


within the time limit required by section 1 (g),
Rule 116 and section 1, as extended by section 6
of this Rule, the information may be dismissed
on motion of the accused on the ground of
denial of his right to speedy trial. The accused
shall have the burden of proving the motion but
the prosecution shall have the burden of going
forward with the evidence to establish the
exclusion of time under section 3 of this Rule.
The dismissal shall be subject to the rules on
double jeopardy.

Failure of the accused to move for


dismissal prior to trial shall constitute a waiver of
the right to dismiss under this section.

*Note: Reasonable delays are allowed by the


Constitution and the Rules. More specifically,
Rule 119 Sec. 3 enumerates these delays. This list
though is not exclusive.

What types of delays are excluded from


computing the period for commencement of
the trial?

The following periods of delay shall be


excluded in computing the time within which
Rule 119: Trial trial must commence:
Trial Must Be Continuous (Rule 119 Sec. 2) a) Any period of delay resulting from other
proceedings concerning the accused,
Trial once commenced, shall continue
including but not limited to the
from day to day as far as practicable until
following:
terminated. It may be postponed for a
1) Delay resulting from an examination
reasonable period of time for good cause.
of the physical and mental condition
The court shall, after consultation with of the accused.
the prosecutor and defense counsel, set the case 2) Delay resulting from proceedings
for continuous trial on a weekly or other short- with respect to other criminal
term trial calendar at the earliest possible time charges against the accused.
so as to ensure speedy trial. In no case shall the 3) Delay resulting from extraordinary
entire trial period exceed one hundred eighty remedies against interlocutory
(180) days from the first day of trial, except as orders.
otherwise authorized by the Supreme Court. 4) Delay resulting from pre-trial
proceedings; provided that the delay
The time limitations provided under this does not exceed thirty (30) days.
section and the preceding section shall not apply 5) Delay resulting from orders of
where special laws or circulars of the Supreme inhibition, or proceedings relating to
Court provide for a shorter period of trial. change of venue of cases or transfer
from other courts.
When is a case set for trial? (Rule 119 Sec. 1) 6) Delay resulting from a finding of the
existence of a prejudicial question;
After a plea of not guilty is entered, the
and
accused shall have at least fifteen (15) days to
prepare for trial. The trial shall commence 7) Delay reasonably attributable to any
within thirty (30) days from receipt of the pre- period, not to exceed thirty (30)
days, during which any proceeding
trial order.

29
concerning the accused is actually b) Whether or not the case taken as a
under advisement. whole is so novel, unusual and complex,
b) Any period of delay resulting from the due to the number of accused or the
absence or unavailability of an essential nature of the prosecution, or that it is
witness. unreasonable to expect adequate
For purposes of this subparagraph, an preparation within the periods of time
essential witness shall be considered established therein.
absent when his whereabouts are Eg. Ampatuan trials consider the sheer
unknown or whish whereabouts cannot number of all the accused, evidence
be determined by due diligence. He shall against them, availability of witnesses,
be considered unavailable whenever his etc.
whereabouts are known but his
presence for trial cannot be obtained by What are not valid grounds for continuance?
due diligence.
No continuance shall be granted
c) Any period of delay resulting from the
because of congestion of the courts calendar or
mental incompetence or physical
lack of diligent preparation or failure to obtain
inability of the accused to stand trial.
available witnesses on the part of the
d) If the information is dismissed upon
prosecutor.
motion of the prosecution and
thereafter a charge is filed against the Order of Trial (Rule 119 Sec. 11)
accused for the same offense, any
period of delay from the date the charge Trial shall proceed in the following order:
was dismissed to the date the time
limitation would commence to run as to a) The prosecution shall present evidence
the subsequent charge had there been to prove the charge and, in the proper
no previous charge. case, the civil liability.
e) A reasonable period of delay when the b) The accused may present evidence to
accused is joined for trial with a co- prove his defense and damages, if any,
accused over whom the court has not arising from the issuance of a provisional
acquired jurisdiction, or, as to whom the remedy in the case.
time for trial has not run and no motion c) The prosecution and the defense may in
for separate trial has been granted. that order, present rebuttal and sur-
f) Any period of delay resulting from a rebuttal evidence unless the court, in
continuance granted by any court motu furtherance of justice, permits them to
proprio, or on motion of either the present additional evidence bearing
accused or his counsel, or the upon the main issue.
prosecution, if the court granted the d) Upon admission of the evidence of the
continuance on the basis of its findings parties, the case shall be deemed
set forth in the order that the ends of submitted for decision unless the court
justice served by taking such action directs them to argue orally or to submit
outweigh the best interest of the public written memoranda.
and the accused in a speedy trial. e) When the accused admits the act or
omission charged in the complaint or
Factors in Granting Postponements or information but interposes a lawful
Continuance (Rule 119 Sec. 4) defense, the order of trial may be
modified.
Note: Granting a postponement is discretionary
upon the court.
Diagram
What are the factors to be considered in
granting continuance or a postponement?

The Court considers the following in


granting continuance or postponement.

a) Whether or not the failure to grant a


continuance in the proceeding would
likely make a continuation of such
proceeding impossible or result in a
miscarriage of justice; and

30
What are the requisites of a valid trial in
absentia?

The following are the requisites of a valid


trial in absentia.

a. The accused has been validly


arraigned.
b. The accused has been duly notified
of the trial or hearings.
c. The absence of the accused or his
failure to appear is unjustified.

Discharge of an Accused as a State


Witness (Rule 119 Sec. 17, 18 and 19)

Q: There are several accused jointly tried for an


offense arising from a single complaint or
information. The prosecution cannot locate
witnesses and cannot obtain pieces of evidence
to secure a conviction. What remedy may the
prosecution resort to if it wants to come up with
evidence to secure conviction?

The prosecution may move/file a motion


for the discharge of one or more accused as state
witness or witnesses.

Procedure for the Discharge of an Accused as a


Reverse Order of Trial. State Witness:

When the accused admits the act or 1) Two or more persons are jointly charged
omission charged in the complaint or with the same offense in the complaint
information but interposes a lawful defense, the or information.
order of trial may be modified. 2) Before the prosecution rests its case, it
must file a motion for the discharge of
In such case, (In a strict sense) the one or more accused to be a state
burden of evidence (not the burden of proof) witness or witnesses.
will switch to the accused. 3) The motion for discharge must be with
the consent of the accused.
*The distinctions between burden of proof and 4) There must be a hearing on the motion.
burden of evidence are better taken in evidence. It is in this hearing that the prosecution
must prove the requisites for one to be a
Eg. A killed B.
state witness. At the said hearing, the
In the normal order of trial, the prosecution must present evidence
prosecution needs to prove that: along with the sworn statement of the
accused whose discharge as a state
1) B was killed. witness is sought. The sworn statement
2) It was A, who killed B. of the accused must show how the crime
3) The killing was unlawful. was committed and his and his co-
accuseds participation.
Now, if A admits the killing, but 5) The court is satisfied that:
interposes a lawful defense, the prosecution a. There is absolute necessity for the
does not need to prove the list above. It will now testimony of the accused whose
be A who needs to prove that the killing is not discharge is requested.
unlawful. b. There is no other direct evidence
available for the proper prosecution
of the offense committed, except
Trial in Absentia the testimony of the said accused.

31
c. The testimony of the said accused appears good cause to detain him. In such case,
can be substantially corroborated in the court shall commit the accused to answer for
its material points. the proper offense and dismiss the original case
d. Said accused has not at anytime upon the filing of the proper information.
been convicted of any offense
involving moral turpitude. Note: In case a mistake has been made in
6) After the court is satisfied of the above charging the proper offense and there can be no
requisites, it issues an order granting the conviction on any offense necessarily included in
motion for discharge of the accused to the offense charged, the accused that has been
be a state witness. discharged as a state witness may be prosecuted
if the proper offense has been filed.
Q: Who may file the motion for the discharge of
an accused to be a state witness? Q: The court issued an order granting the
prosecutors motion for the discharge of one of
It is the prosecution who files the the accused, A, to be a state witness. The
motion. prosecution though no longer presented A, as it
felt that it may secure a conviction even
Q: What is the nature of a court order granting without his testimony. Even if A was available
the motion of an accused asking for his to testify, he was never called to do it. The
discharge to be a state witness? prosecution then moved to reinclude As name
among those currently prosecuted. May A be
A court order granting the motion of an
prosecuted?
accused asking for his discharge to be a state
witness is void. Suggested Answer Not anymore. The
accused will not be reincluded in the same
Q: When must the motion be filed?
complaint or information since it was not his
The prosecution must file the motion fault that he could not testify.
before resting its case.
Q: What are the requisites for one to be
Effect of Becoming a State Witness discharged as a state witness?

Note: An order granting the discharge of an In order for one to be a state witness,
accused to be a state witness operates as an the court must be satisfied of the following:
acquittal for the accused. Thus the accused
a) There is absolute necessity for the
cannot be reincluded in the same complaint or
testimony of the accused whose
information.
discharge is requested.
But if the accused fails or refuses to b) There is no other direct evidence
testify against his co-accused in accordance with available for the proper prosecution
his sworn statement constituting the basis for his of the offense committed, except
discharge, he may be prosecuted the testimony of the accused.
again/reincluded in the same offense. c) The testimony of the accused can be
substantially corroborated in its
Admissibility of the Sworn Statement by the material points.
Accused whose, Discharge as a State Witness is d) Said accused does not appear to be
being sought the most guilty; and
e) Said accused has not at any time
Note: Evidence adduced in support of the been convicted of any offense
discharge shall automatically form part of the involving moral turpitude.
trial. If the court denies the motion for discharge
of the accused as state witness, his sworn Q: Is it necessary that the accused, whose
statement shall be inadmissible in evidence. discharge as a state witness is being sought, be
the least guilty in the offense charged?
Mistake made in charging the proper offense.
No. There is no rule requiring that the
When it becomes manifest at any time accused be the least guilty before he may be
before judgment that a mistake has been made discharged as a state witness. All that the rules
in charging the proper offense and the accused require is that the said accused does not appear
cannot be convicted of the offense charged or to be the most guilty.
any other offense necessarily included therein,
the accused shall not be discharged if there

32
Note: Being a State Witness is a form of Necessity of The witness No such
immunity statute. Some other forms of the witness and his requirement
immunity statues are the following. receiving relatives by exists.
threats: affinity or
a) Republic Act No. 6700 or the consanguinity
Ombudsman Law Authority is granted within the
to the Ombudsman to grant immunity in second
cases involving Government Officials degree is
and employees being
b) Republic Act No. 9165 or the Dangerous threatened
Drugs Act Authority is given to the DOJ with bodily
to grant immunity in drug cases harm, in order
c) Executive Order No. 14 Authority is for the
given to the PCGG to grant immunity in witness to
cases involving ill-gotten wealth qualify under
d) Presidential Decree 749 Immunity may WPP.
be given to informants for certain crimes Authority The immunity The immunity
punished by the RPC, NIRC (tax code), granting the is granted by is granted by
and Tariff and Customs Code. immunity: the DOJ. the courts.
e) Republic Act No. 6981 or the Witness Witness In order to No such
Protection Program. being a law qualify under requirement
Effect of Admission into the Witness Protection enforcer: the WPP, the exists.
Program witness must
not be a
Admission into the Program shall entitle member of a
such witness to immunity from criminal law
prosecution for the offense or offenses in which enforcement
his testimony will be given or used and all the agency.
rights and benefits provided. Benefits The witness The accused
Received: receives who has been
Witness Protection Program under RA 6981 certain discharged as
distinguished from Rule 119 Sec. 17 benefits such a state
as relocation witness
Witness Discharge of and change of receives no
Protection an Accused identity. such benefits.
Program to be State
(WPP) Witness
Offense The offense Applies to all Dismissal due to Insufficiency of Evidence (Rule
Charged: charged must offenses 119 Sec. 23)
be a grave whether
felony light, less After the prosecution rests its case, the
punishable by grave, or court may dismiss the action on the ground of
the RPC or grave. insufficiency of evidence (1) on its own intiative
special laws. after giving the prosecution a chance to be heard
Necessity of Any witness, The witness is or (2) upon demurrer to evidence filed by the
the Witness whether a one or more accused with or without leave of court.
being an plain witness accused
Note: If the court dismisses the criminal action
Accused: or the testifying
on its own, it must afford the prosecution a
accused against his
chance to be heard. What then constitutes
himself may co-accused.
be qualified opportunity to be heard for the prosecution?
under the Before the court dismisses a criminal
WPP. action on its own after the prosecution rests its
Necessity of The witness The witness is case, the court must issue an order directing the
being need not be necessarily prosecution to explain why the case must not
charged in charged in charged in be dismissed on ground of insufficiency of
court: court in order court. evidence.
to qualify in
WPP.

33
Note: After the prosecution has presented its five (5) days from its receipt of the
evidence in chief and rests, the court has two motion for leave.
options (1) dismiss the case on its own or upon 4. The court issues an order granting or
demurer to evidence filed by the accused or (2) denying the motion for leave.
allow the case to proceed. 5. The accused files his demurrer to
evidence either with leave or without
leave of court. If the motion for leave has
been granted, the accused has ten (10)
days from notice of the order within
which, to file his demurrer to evidence.
6. The court either issues an order granting
or denying the demurrer to evidence.

Granting a demurrer to evidence


operates as an acquittal of the accused.
Note: After the prosecution has presented its A court denies a demurrer to evidence if
evidence in chief and rests, the accused has two in its mind, the evidence is sufficient.
options (1) File a demurrer to evidence or (2)
present its evidence. Note: The order denying the motion for leave or
the demurrer to evidence itself is not reviewable
by appeal or certiorari before judgment.

Demurrer to evidence filed with Leave of Court.

What is the significance of obtaining prior leave


of court in filing a demurer to evidence?

If the court denies the demurrer to


evidence filed with leave of court, the accused
may adduce evidence in his defense. When the
Demurrer to Evidence. demurrer to evidence is filed without leave of
court, the accused waives the right to present
What is the nature of a demurrer to evidence? evidence and submits the case for judgment on
the basis of the evidence for the prosecution.
A demurrer to evidence has the nature
of a motion to dismiss. When is demurrer to evidence filed with leave
of court?
When is a demurrer to evidence filed?
A demurrer to evidence is filed with
A demurrer to evidence is filed after the
leave of court if the earlier-filed motion for
prosecution rests.
leave to file demurrer to evidence is granted by
What is the ground of a demurrer to evidence? the court.

In a criminal case, the ground for filing a What is the remedy of the accused, whose
demurrer to evidence is insufficiency of demurrer to evidence filed with leave of court
evidence. In a civil case, the ground for filing a was denied?
demurrer to evidence is lack of cause of action. The accused must now present his
*Note: even if the grounds for filing a demurrer evidence.
to evidence in a civil or criminal case are worded
differently, they actually mean the same thing.

Procedure for filing a demurer to evidence:


Demurer to Evidence Filed without Leave of
1. Prosecution rests
Court
2. Accused files a motion for leave of court
to file demurrer to evidence within five When is a demurrer to evidence filed without
(5) days after the prosecution rests. leave of court?
3. The prosecution files its opposition, or
comment to the motion for leave within

34
There is no prior leave of court to file action based on the delict is deemed
demurrer to evidence in the following instances: extinguished.

1. The accused files a demurrer to evidence b) If the demurrer to evidence is


without first filing a motion for leave of filed with leave of court:
court.
2. The accused filed a demurrer to If the court denies the demurrer to
evidence notwithstanding that his evidence because the evidence presented by the
earlier filed motion for leave of court has prosecution is sufficient, the accused may
been denied. (the motion for leave has present evidence regarding both the criminal
been denied but the accused still filed a and civil aspect of the case.
demurrer to evidence)
If the court grants the demurrer to
Additional notes: evidence because the evidence so far presented
by the prosecution is insufficient as proof
Demurrer to Evidence and the Civil Aspect of beyond reasonable doubt, it does not follow that
the Criminal Action the same evidence is insufficient to establish a
preponderance of evidence. Thus, if the court
Case: After the prosecution has rested its case, grants the demurrer, proceedings on the civil
the accused files a demurrer to evidence. In aspect of the case shall proceed, except if the
resolving the demurrer to evidence, should the trial court finds that the act or omission from
trial court likewise decide the civil aspect of the which the civil liability may arise did not exist.
case and determine the civil liability of the (Hun Hyung Park v. Eung Won Choi, G.R. No.
accused? 165496, Feb. 12, 2007)
The answer should be qualified as Scenario: A filed a demurrer to evidence with
follows: leave of court. The court granted it. How will
the court proceed as to the civil aspect of the
a) If the demurrer to evidence is filed
case?
without leave of court:
As to the civil aspect of the case, the
If the demurrer to evidence is filed
court may require the prosecution to prove the
without leave of court, the whole case is
accuseds civil liability by preponderance of
submitted for judgment on the basis of the
evidence.
evidence for the prosecution as the accused is
deemed to have waived his right to present What if in granting the demurrer to evidence,
evidence. In this situation, the court is called the court failed to resolve the civil aspect of the
upon to decide the case including its civil aspect, case?
unless the offended party has waived the civil
action, or has reserved his right to institute it In such instance, the remedy by the
separately, or has instituted the civil action prior offended party is to appeal the civil aspect of
to the criminal action. the case.

In case of conviction, the trial court Q: Does denial of a demurrer to evidence


should state in its judgment the civil liability or without prior leave of court equivalent to
damages to be recovered by the offended party conviction?
from the accused.
No. The denial of a demurrer to
In case of acquittal, the accused may still evidence filed without prior leave of court is not
be adjudged civilly liable where: (a) the acquittal equivalent to conviction. It does not even
is based on reasonable doubt; (b) the court warrant an automatic conviction. The court will
declares that the liability of the accused is only still determine whether the evidence presented
civil; or (c) the civil liability of the accused does by the prosecution can sustain a conviction
not arise from or is not based upon the crime of beyond reasonable doubt. If it does not, then
which the accused is acquitted. the case will be dismissed.

But if the accused is acquitted and there Q: A, the accused, filed a demurrer to evidence
is a finding in the final judgment in the criminal without first obtaining prior leave of court. It
action that the act or omission from which the was denied. Nonetheless, the court ordered A
civil liability may arise did not exist, then the civil to present his evidence. Is the court correct in
issuing such order?

35
The court is not correct. When an *Note: Rule 15, Section 9. A motion for leave to
accused waives his right to present evidence by file a pleading or motion shall be accompanied
filing a demurrer to evidence without leave of by the pleading or motion sought to be
court, the court may not order him to present admitted.
evidence. Doing so constitutes grave abuse of
discretion. The motion for leave to file demurrer to
evidence must then be accompanied by the
What is the prosecutions remedy against an demurer to evidence itself pursuant to Rule 15.
order granting a demurrer to evidence?

The remedy is not appeal, but a petition


for certiorari under Rule 65 on the ground of Rule 120: Judgment.
grave abuse of discretion amounting to lack or
What is judgment? (Rule 120, Sec. 1)
excess of jurisdiction or a denial of due process
or lack or excess of jurisdiction and upon Judgment is the adjudication by the
showing that there is no appeal, or any other court that the accused is guilty or not guilty of
plain, adequate, and speedy remedy in the the offense charged and the imposition on him
ordinary course of law. of the proper penalty and civil liability, if any.
Depriving The Prosecution an Opportunity to Requisites of a valid judgment (Rule 120, Sec. 1)
Prove the Identity of the Accused Upon Grant of
a Demurrer to Evidence Constitutes Grave 1. It must be written and in the official
Abuse of Discretion language.
2. It must be personally and directly
Scenario: A was charged for murder before the prepared by the judge.
RTC. The prosecution has already presented 3 3. It must contain clearly and distinctly a
witnesses. It has one more remaining witness, statement of the facts and the law upon
who happens to be the one to prove the which it is based.
identity of A as the author of the crime. On the 4. It must be signed by the judge preparing
day of As giving of testimony, he failed to it and filed with the Clerk of Court.
appear. The prosecution moved for a
postponement but the trial court denied it. Why must the judgment state clearly and
Without any evidence to prove his identity as distinctly the facts and law upon which it is
the perpetrator of the crime, A filed a demurrer based?
to evidence. The court granted it. May the
prosecution appeal the order of the court The parties to a litigation should be
granting the demurrer to evidence? (Sanvicente informed of how it was decided, with an
v. People, 441 Phil. 139 (2002) explanation of the factual and legal reasons that
led to the conclusions of the trial court. The
No. The prosecution cannot appeal such losing party is entitled to know why he lost, so he
order without violating the accuseds right may appeal to the higher court, if permitted,
against double jeopardy. The order granting a should he believe that the decision should be
demurrer to evidence is an adjudication by reversed. A decision that does not clearly and
merits, and it operates as an acquittal of the distinctly state the facts and law upon which it is
accused. The remedy of the prosecution is to based is precisely prejudicial to the losing party,
file a petition for certiorari under rule 65 to set who is unable to pinpoint to possible errors of
aside the courts order. the court for review by a higher tribunal.
(Lumanog, et. al. v. People, GR No. 182555,
Q: What is the remedy of the prosecution when September 7, 2010)
the court dismissed the criminal action on its
own on the ground of insufficiency of evidence, Note: A judgment that fails to state clearly and
but without first affording an opportunity for distinctly the facts upon which it is based, is
the prosecution to be heard? called a sin perjuicio judgment. It is void.

The prosecutions remedy is to file a Memorandum Decision and Minute Resolution


petition for certiorari under Rule 65. The court
acted with grave abuse of discretion when it did What is a Memorandum decision?
not afford the prosecution an opportunity to be
A memorandum decision is a decision
heard.
which adopts by reference the findings of fact
and conclusions of law contained in the decision

36
of an inferior tribunal. (Oil and Natural Gas certification on the same. The notices quote the
Commission v. CA GR No. 114323, July 23, 1998) Courts actual resolutions denying due course to
the subject actions and these already state the
It is allowed and is not violative of the required legal basis for such denial. To require
Constitutional provision that a decision shall the Justices to sign all its resolutions respecting
contain the facts and the law upon which it is its action on new cases would be unreasonable
based. By its very nature, a memorandum and unnecessary.
decision may be rendered only by an appellate
tribunal. While the Constitution requires every
court to state in its decision clearly and distinctly
(In other words, nangopya lang ng the fact and the law on which it is based, the
decision ang appellate court. Hehe. Note that in Constitution requires the court, in denying due
a memorandum decision, it is the decision of the course to a petition for review, merely to state
lower court that is adopted, not the references, the legal basis for such denial.
or arguments on points of facts and law made by
the parties through their pleadings, motions, The Court has repeatedly said that
position papers, briefs, memoranda, etc. In the minute resolutions dismissing the actions filed
broad sense though, even decisions adopting the before it constitute actual adjudications on the
parties position papers, memoranda, and merits. They are the result of thorough
pleadings are also called memorandum deliberation among the members of the
decisions.) Court. When the Court does not find any
reversible error in the decision of the CA and
What is a minute resolution? denies the petition, there is no need for the
Court to fully explain its denial, since it already
Simply put, a minute resolution is a
means that it agrees with and adopts the findings
resolution denying petitions for review, appeal,
and conclusions of the CA. The decision sought
etc., in the shortest possible way.
to be reviewed and set aside is correct.
Eg. Please take notice that the Court
Even the Validity of a Criminal Information may
issued a resolution in this case, dated ______
be Ruled Upon in a Minute Resolution
and reads as follows: The petition is denied for
lack of merit. No further explanation is added. Jose B. Del Rosario Jr. V People of the Phil., GR
It is a one page resolution that has nothing No. 143419, June 22, 2006.
attached to explain why the said judgment was
arrived at. Facts: At first, the Ombudsman did not find
probable cause to indict A for violation of the
Is a minute resolution valid? graft and corrupt practices act. It held this view
on review. On the motion for reconsideration, it
Its validity must be qualified. It is valid
again reiterated its finding that no probable
for dismissing a petition for review. It is an
cause exists for As indictment. Another motion
adjudication by merit which becomes final.
for supplemental reconsideration was filed, and
Rationale: (As quoted from Jandy J. Agoy v. this time, the Ombudsman found probable cause
Araneta Inc., GR No. 196358, March 21, 2012) to indict A. In other words, the Ombudsman had
a change of mind, after three resolutions finding
Minute resolutions are issued for the no probable cause for As indictment. The
prompt dispatch of the actions of the information was filed in the Sandiganbayan. A
Court. While they are the results of the filed a motion to quash but the same was denied.
deliberations by the Justices of the Court, they A filed a petition for certiorari to question the
are promulgated by the Clerk of Court or his validity of the information. When he was
assistants whose duty is to inform the parties of required to comment, A did not comply. With
the action taken on their cases by quoting nothing to support his argument, and for his
verbatim the resolutions adopted by the Court. failure to file a comment, the Supreme Court
Neither the Clerk of Court nor his assistants take denied his petition in a minute resolution and
part in the deliberations of the case. They ruled that the criminal information was valid.
merely transmit the Courts action in the form
prescribed by its Internal Rules. As the Court The case prospered. During the pre-trial,
explained in Borromeo v. Court of Appeals, no A again questioned the validity of the
law or rule requires its members to sign minute information. The Sandiganbayan ruled that it
resolutions that deny due course to actions filed was valid as per the minute resolution by the
before it or the Chief Justice to enter his Supreme Court. A once again went to the

37
Supreme Court alleging that the Sandiganbayan The judgment of acquittal shall state the
acted with grave abuse of discretion. A argued following.
that the validity of the information filed against
him could not be ruled upon by the courts in a a. Whether or not the evidence of the
minute resolution. The dismissal of his previous prosecution absolutely failed to prove
petition was due to his failure to file a comment, the guilty of the accused, or merely
and not some other grounds. failed to prove his guilt beyond
reasonable doubt;
The Supreme Court simply resolved b. Determination if the act or omission
otherwise. It held that the dismissal of the from which the civil liability might arise
previous petition, and their ruling that the did not exist;
information is valid is an adjudication by merits.
It attained finality and res judicata may set in, Duplicity of Complaint or Information (Rule 120,
barring a relitigation on the same issue. Sec. 3)

When two or more offenses are charged


in a single complaint or information but the
Error of Judgment and Error of Jurisdiction accused fails to object to it before trial, the court
may convict him of as many offenses as are
Error of jurisdiction arises from failure to charged and proved, and impose on him the
comply with the requisites of a valid judgment. It penalty for each, offense, setting out separately
is a void judgment, the remedy for which is a the findings of fact and law in each offense.
petition for certiorari under Rule 65.
*Note: Refer to earlier discussions regarding this
An error of judgment arises when the matter.
wrong and inapplicable set of facts and law was
used. It is a valid judgment though it may be For what offense may the accused be convicted
wrong. Such judgment is a valid subject of of? (Rule 120, Sec. 4)
appeal. (People v. CA G.R. No. 144332, June 10,
2004, 431 SCRA 610 as cited in Almuete v People. The accused may be convicted of the
These cases shall be discussed later in the topics crime charged provided it is duly proved.
of appeal and promulgation of judgment) However, in case of variance between the
offense charged and that proved, the accused
Contents of a Judgment of Conviction (Rule 119 shall be convicted of the offense proved which is
Sec. 2) included in the offense charged, or of the offense
charged which is included in the offense proved.
The judgment of conviction shall state
the following. Note: Sec. 4 of Rule 120 is known as the Rule on
Variance. This rule also answers the question as
1) The legal qualification of the offense to what offense may an accused be convicted of
constituted by the acts committed by in case of variance.
the accused;
2) The aggravating and mitigating When does the offense charged include the
circumstances which attended the offense proved? (Rule 120, Sec. 5)
commission of the offense, if any;
3) The participation of the accused in the An offense charged necessarily includes
offense whether as principal, the offense proved when some of the essential
accomplice, or accessory; elements or ingredients of the former, as alleged
4) The penalty imposed upon the accused; in the complaint or information, constitute the
5) The civil liability or damages caused by latter.
his wrongful act or omission to be
When is the offense charged necessarily
recovered from the accused by the
included in the offense proved? (Rule 120, Sec.
offended party, if there is any, unless the
5)
enforcement of the civil liability by a
separate civil action has been reserved An offense charged is necessarily
or waived. included in the offense proved, when the
essential ingredients of the former constitute or
Contents of a Judgment of Acquittal (Rule 119
form part of the latter.
Sec. 2)
Note: Robbery necessarily includes theft.

38
Murder or paricide necessarily includes if the conviction is for a light offense, the
homicide and physical injuries. judgment may be pronounced in the presence of
his counsel or representative. When the judge is
Rape necessarily includes Acts of absent or outside the province or city, the
Lasciviousness, Seduction. judgment may be promulgated by the clerk of
court.
Robbery with Force Upon things is
different from and does not include or is Note: Promulgation of judgment in a civil case is
necessarily included in Robbery with Violence, or different. For purposes of this subject, always
Intimidation against Persons. note that the topics primarily refer to criminal
cases.
Attempted Rape Necessarily Includes Light
Coercion or Unjust Vexation (Renato Baleros Jr. How is judgment promulgated if the accused is
V. People, GR No. 138033, January 30, 2007) absent during the date of promulgation?
Facts: A, a lady is sleeping at her In case the accused fails to appear at the
dormitory room located at the third floor. B, a scheduled date of promulgation of judgment
man, climbed up to her window, stealthily despite notice, the promulgation shall be made
opened it, and was about to place a handkerchief by recording the judgment in the criminal docket
laden with knockout gas on As face. Fortunately, and serving him a copy thereof at his last known
before A could inhale any of the fumes, she address or thru his counsel.
noticed Bs presence. B hastily went on top of A
and tried his best to make A inhale the fumes. B Promulgation must be made during the
failed. A was later charged for attempted rape. incumbency of the judge who penned the
The information alleged that B committed decision.
preparatory acts for rape. The trial court arrived
at a judgment of conviction. When the case Case: Judge X prepared and signed a judgment
reached the Supreme Court though, the which was dated on June 1, 2011. The accused
judgment of conviction for attempted rape was received the notice of promulgation on July 1,
overturned. Instead, the Supreme Court held 2011. In the said notice, the promulgation was
that B is liable for unjust vexation, an offense set on July 16, 2011. Before the promulgation,
necessarily included in the charge of attempted Judge X died on July 10, 2011. Nonetheless, the
rape. The Court ruled that there is doubt as to promulgation proceeded as the Clerk of Court
the true intention of B. Although a reasonable relied on the provision of the rules stating that
man would presume that B intended nothing when the judge is absent or outside the
else but to rape A just by looking at the facts of province or city, the judgment may be
the case, the Court ruled that B could have had promulgated by the Clerk of Court. Is the
other things in his mind aside from raping A. judgment valid?
With his intent unkown, B could not be held
No, the judgment is void. The said
liable for attempted rape or other crimes. Still, it
judgment may never be promulgated.
is a fact that A was severely annoyed by Bs acts,
Promulgation must be made during the
which is unlawful. The proper thing to do then is
incumbency of the judge who penned the
to hold B liable for unjust vexation.
decision. The absence referred to in the said
(Lesson The gist of the decision can be rule refers to temporary absence. In case of a
translated in this phrase - kapag palpak ka na judges death, dismissal, resignation, or
mangrape, nangiinsulto ka lang. Hehe) promotion, the absence is permanent and the
judge ceases to be the judge of the court.
From this Supreme Court decision, it
may be inferred that other crimes that bring Note: Always remember, an earlier penned
about unjustified insults necessary include decision may not be promulgated after the
unjust vexation as well. Eg. Murder, etc. judge who prepared and signed it becomes
permanently absent dismissed, dead,
Promulgation of Judgment (Rule 119, Section 6) resigned, or promoted.

How is judgment in a criminal case What then will happen in such instances?
promulgated?
The court and the accused has no choice
The judgment is promulgated by reading but to wait for the next judge to review the
it in the presence of the accused and any judge records of the case, prepare and sign the
of the court in which it was rendered. However,

39
decision, set the promulgation, and promulgate during promulgation. Just remember that
it. absence of the accused during promulgation
will not invalidate the proceedings, unlike in
Is a judgment void due to the reason that the arraignment and in-court identification.
judge who prepared, signed, and promulgated
it, is not the one who heard the case? Other discussions/notes:

No. The fact that the trial judge who Absence of the Accused During Promulgation
rendered judgment was not the one who had
the occasion to observe the demeanor of the May a judgment be promulgated in a criminal
witnesses, during trial, but merely relied on the case even in the absence of the counsel for the
records of the case, does not render the accused? (Icdang v. Sandiganbayan, G.R. No.
judgment erroneous, especially where the 185960, Jan. 25, 2012)
evidence on records is sufficient to support its
Yes. The presence of counsel for the
conclusion. (People v. Alfredo, GR No. 188560,
accused is not indispensable for promulgation.
December 15, 2010)
What are the post-conviction remedies of the
Promulgation must be made where the court
accused?
sits
The post-conviction remedies of the
Case: The criminal action is filed in Baguio City.
accused are the following.
Nonetheless, after a change of venue, trial was
conducted in La Union. The judgment was 1) Motion for Reconsideration.
promulgated in La Union. The date of the 2) Appeal
promulgation though, falls on a Baguio holiday. 3) Motion for New Trial
Is the promulgation valid? 4) Motion to Reopen Trial
Yes, the promulgation is valid. The Note: In the above list, the remedies of Habeas
judgment must be promulgated where the Corpus and reliance upon DNA Testing may also
court sits. In this case, the court sits in La Union, be added.
and not in Baguio.
Are there instances when the accused does not
Notice of the Promulgation to the Bondsman, appear during the promulgation yet he does not
Warden, or Counsel is Notice to the Accused. lose his right to appeal or to avail of his post-
conviction remedies?
The proper clerk of court shall give
notice to the accused personally or through his Yes. If the conviction is for a light
bondsman or warden and counsel, requiring him offense, the judgment may be pronounced in the
to be present at the decision. presence of the accuseds counsel or his
representative. In such instance, even if the
Notice in case of Trial in Absentia
accused was absent, he does not lose his right to
If the accused was tried in absentia avail of the post-conviction remedies.
because he jumped bail or escaped from prison,
What then is the remedy of the accused who
the notice to him shall be served at his last
failed to attend the promulgation of judgment?
known address.
Within fifteen (15) days from the
Accuseds absence during promulgation.
promulgation of judgment, the accused must
What is the effect of the accuseds absence surrender and file a motion for leave of court to
during promulgation? avail of the post-conviction remedies. He shall
state the reasons for his absence at the
In case the accused fails to appear at the scheduled promulgation and if he proves that his
scheduled date of promulgation of judgment absence was for a justifiable cause, he shall be
despite notice, and the judgment is one of allowed to avail of the said remedies within
conviction, the accused shall lose his right to fifteen (15) days from notice.
appeal or avail of any of the post-conviction
remedies provided his absence was without Note: The accused needs to surrender, and not
justification. just file the motion for leave.

*Note: It is for this reason that some authors The court shall decide whether the
state that the presence of the accused is needed reason for the absence of the accused is justified

40
or not. If the court finds the reasons justified, it b) Will the motion for reconsideration
issues an order granting the motion and ordering stay the judgment?
the accused to avail of the remedies within 15
days from notice of the order. If the court finds Answer:
the reasons unjustified, it denies the motion.
a) The court may deny the motion for
Diagram reconsideration, outright. It is not the proper
remedy. By the accuseds absence during the
promulgation, he is deemed to have waived his
right to appeal, and avail of the other post-
conviction remedies.

c) The motion for reconsideration


will not stay the judgment. The judgment
simply lapses into finality.

Note: Availing of any of the post-conviction


Note: Prior to conviction, the accused may be remedies without first filing a motion for leave
on bail. It will only be after the promulgation of to avail of the said remedies, is the wrong
the judgment that the bail will be ordered remedy. The court may simply deny the
cancelled and a warrant of arrest may be issued accuseds application for the said remedies, and
as against the accused. A situation may now the judgment becomes final.
arise where instead of the accused surrendering
before the court, it will be the authorities Promulgation by Appellate Courts; Erroneous
arresting him. Remedies of Motion for Repromulgation and
Petition for Certiorari under Rule 65;
Q: What if, instead of surrendering, the accused Prescription of Right to Appeal.
was arrested. Nonetheless, he still filed a
motion for leave to avail of the post-conviction Q: A was absent during the promulgation of
remedies. May the court act upon his motion? judgment by the trial court. He was convicted.
He claimed to be ill alleging that he was
Yes, the court must still act upon his suffering from severe stress and upon
motion. The rules must be construed in favor of consultation with a doctor, he was advised to
the accused. The word surrender is synonymous take a rest. He did take a rest on the day of the
with or includes the concept of arrest. Even if he promulgation. He filed before the RTC or trial
did not surrender, but he was arrested just the court a motion for reconsideration questioning
same, the Court and the proper authority have the promulgation. It was denied. On appeal, the
custody over his person. Thus, if he can show appellate court denied his appeal. When the
that his absence during the promulgation records of the case were brought to the trial
despite due notice is justifiable, the court may court for execution, he now claims the
still grant his motion. appellate courts decision of conviction must be
promulgated as well by the trial court. Thus he
Q: What is the remedy of the accused against filed a motion for repromulgation. Resolve the
the courts order cancelling his bond? case.
The proper remedy is to file with the Look into the succeeding case.
Court of Appeals a motion to review the said
order in the same regular appeal proceedings, A motion for Repromulgation or Petition for
as an incident to his appeal the filing of a Certiorari under Rule 65 are not the proper
separate petition via a special civil action or remedies (Almuete v. People GR No. 179611,
special proceeding questioning such adverse March 12, 2013)
order before the appellate court is proscribed.
(Chua v CA, 520 SCRA 729, April 12, 2007) This is another peculiar case. This case explains
how promulgation of judgment is done by the
Case: In a case for Homicide, the accused failed Supreme Court or other appellate courts.
to attend the promulgation despite due notice.
Within 15 days from the promulgation, he filed Facts: A, B, C, and D were convicted of violation
a motion for reconsideration. of PD 705. They were absent during the
promulgation of the judgment. Their lawyer
a) What must the trial court do? claimed that A, B, and C were ill while D was not
notified of the promulgation. All the accused

41
filed a motion for reconsideration questioning judgment is sent by the clerk of the appellate
the legality of the promulgation. The trial court court to the lower court under section 9 of rule
denied their motion. All the accused filed a 53, not for the promulgation or reading thereof
petition for certiorari before the CA asking for a to the defendant, but for the execution of the
repromulgation. The CA granted their petition. judgment against him, it not being necessary
The State through the Solicitor General to promulgate or read it to the defendant,
appealed the CAs decision to the SC. The SC because it is to be presumed that accused or his
ruled in favor of the State and reinstated the trial attorney had already been notified thereof in
courts judgment. The judgment has become accordance with sections 7 and 8, as amended,
final and has been entered into the entry of of the same Rules 53 (now sections 9 and 10 of
judgments. All of the accused still filed a 2nd and Rule 51), and that the duty of the court of first
3rd motion for reconsideration which were still instance in respect to such judgment is merely
denied by the Supreme Court. All of the accused to see that it is duly executed when in their
now filed a motion for clarification before the SC nature the intervention of the court of first
asking whether they may still appeal the trial instance is necessary to that end.
courts judgment of conviction. Without any
resolution on their motion, all accused filed a The practice of requiring the convict to
motion for repromulgation before the trial court appear before the trial court for
that convicted them. It was denied. On appeal, promulgation of the judgment of the
they argued that the trial court ought to have appellate court should, therefore, be
repromulgated the judgment of conviction by immediately discontinued.
the Supreme Court in order for them not to lose
Question No. 1 for the 2014 Bar Examination in
their right to appeal. By this reason their right
Remedial Law
to appeal still exists.
Ludong, Balatong, and Labong were
Issue: A) May the accused still appeal?
charged with murder. After trial, the court
B) Is there a need to promulgate a announced that the case was considered
decision by the appellate court in the trial court submitted for decision. Subsequently, the Court
before the said decision becomes valid? issued the notices of promulgation of judgment
which were duly received. On promulgation day,
Ruling: A) No, the accuseds right to appeal has Ludong and his lawyer appeared. The lawyers of
already prescribed. The judgment has long Balatong and Labong appeared but without their
become final. In fact, there has already been an clients and failed to satisfactorily explain their
entry of judgment. absence when queried by the court. Thus, the
judge ordered the Clerk of Court to proceed with
B) No, a repromulgation of either the the reading of the judgment convicting all the
affirmed or modified judgment of conviction by accused. With respect to Balatong and Labong,
the trial court is not necessary. Under the judge ordered that the judgment be entered
Administrative Circular No. 16-93, issued on in the criminal docket and copies be furnished to
September 9, 1993, The procedure for the their lawyers. The lawyers of Ludong, Balatong,
promulgation of judgments in the trial courts in and Labong, filed within the reglementary period
criminal cases, differs from that prescribed for a Joint Motion for Reconsideration. The court
the Supreme Court and the Court of Appeals favorably granted the motion of Ludong
where promulgation is effected by filing the downgrading his conviction from murder to
signed copy of the judgment with the Clerk of homicide but denied the motion as regards
Court who causes true copies thereof to be Balatong and Labong.
served upon the parties. The procedural
consequence of this distinction was reiterated a) Was the court correct in taking
in Jesus Alvarado, etc. Vs. The Director of cognizance on the Joint Motion for
Prisons, to wit: By sections 8 and 9 of Rule 53 Reconsideration?
(now Sections 10 and 11 of Rule 51) in relation b) Can Balatong and Labong appeal
to section 17 of Rule 120 (now Section 17 of their conviction in case Ludong
Rule 124), a judgment is entered 15 days after accepts his conviction for homicide?
its promulgation, and 10 days thereafter, the
records are remanded to the court below Answer: a) Yes, the court was correct in taking
including a certified copy of the judgment for cognizance on the Joint Motion for
execution. In the case of People vs. Sumilang Reconsideration, but only as to Ludong. The
(44 Off. Gaz., 881, 883; 77 Phil. 764), it was court should treat the motion as if it has been
explained that the certified copy of the filed only by Ludong. Any resolution made by the

42
court on the motion will only affect Ludong. dictates that they are mutually exclusive
Balatong and Labong have already lost their right remedies. Applying for probation excludes the
to avail of post conviction remedies. (People v. right to appeal. The former is a waiver of the
Delgado, 2009) latter. In applying for probation, the accused is
deemed to have accepted the correctness of the
b) No, Balatong and Labong can no judgment of conviction against him. To apply for
longer appeal their judgment of conviction. They probation, the judgment needs to become final.
are deemed to have waived their right to appeal In the opposite side, appealing the case excludes
and other post conviction remedies. The one from applying for probation. Resorting to
judgment simply lapses into finality. appeal is a waiver of the privilege to apply for
probation. In appeal, judgment is stayed and
Suppose, in the situation above, this question
does not become final. The accused does not
was asked. Will the judgment downgrading the
accept the correctness of the judgment and
offense committed by Ludong benefit Balatong
throws the whole case for review.
and Labong?
But appealing the penalty alone and not the
No, such judgment in Ludongs favor will
conviction for a crime, may entitle one for
not benefit Balatong and Labong. Although the
Probation. (Colinares v. People, GR No. 182748,
rules provide that a favorable judgment for an
December 13, 2011)
accused who appealed, will benefit his other
other co-accused if the judgment is favorable Case: A was convicted of Frustrated Homicide.
and applicable to them, this is not the case for a He was meted the penalty of from 2 years and 4
motion for reconsideration. The rules do not months of prision correccional, as minimum, to 6
provide for a similar effect of rendering a years and 1 day of prision mayor, as maximum.
favorable judgment. During the trial, A insisted that he is liable for
Attempted Homicide, and not Frustrated
Finality of Judgment. (Rule 120, Section 7)
Homicide. He reiterated this argument on appeal
A judgment of acquittal is immediately and at the same time claimed that he is entitled
final and executory. to probation. When the case reached the
Supreme Court, it held that A is indeed liable for
A judgment imposing the death penalty Attempted Homicide. His penalty is modified to
is always subject to automatic review. (This part 4 months of arresto mayor, as minimum, to 2
is better discussed in the subject matter of years and 4 months of prision correccional, as
appeal) maximum, which is now allowed for probation.
The Court also pronounced that A is qualified for
A judgment of conviction becomes final probation. In appealing his case, Colinares raised
upon the following instances. the issue of correctness of the penalty imposed
on him. In a way, therefore, he sought from the
a) After the lapse of the period for
beginning to bring down the penalty to the level
perfecting an appeal without an appeal
where the law would allow him to apply for
having been perfected.
probation. In a real sense, the SCs finding that
b) When the sentence has been partially or
Colinares was guilty, not of frustrated homicide,
totally satisfied/ Total or partial service
but only of attempted homicide, is an original
of sentence.
conviction that for the first time imposes on him
c) When the accused has waived in writing
a probationable penalty.
his right to appeal
d) When the accused has applied for a Modification of Judgment (Rule 120, Section 7)
probation.
A judgment of conviction may, upon
Note: Even though the Rules of Court mention motion of the accused, be modified or set aside
that a judgment of conviction becomes final before it becomes final or before appeal is
after the lapse of the period for perfecting an perfected.
appeal, it is understood that in such instance, no
appeal was ever perfected. Entry of Judgment (Rule 120, Section 8)

Application for probation must be filed After a judgment has become final, it
within the same period for perfecting an appeal. shall be entered into the book or entry of
judgments.
Probation and appeal are two exclusive
and incompatible remedies. Jurisprudence

43
Applicability of the Rules governing suspension b) New and material evidence has been
of sentence, probation and parole. discovered which the accused could
not with reasonable diligence have
Nothing in this Rule shall affect any discovered and produced at the trial
existing provisions in the laws governing and which if introduced and
suspension of sentence, probation, or parole. admitted would probably change
the judgment.
Eg. Cases of an accused that is below 18 years of
Note: The rules speak of newly
age, but over 15 years of age at the commission
discovered evidence and not
of the crime. (*In other words, 16-17 years old)
forgotten evidence.
The said accused is entitled to an
automatic suspension of sentence. But if the
Newly Discovered Evidence
imposable penalty for the offense is death,
reclusion perpetua, or life imprisonment, there
Is the discovery of new witness/es a ground for
is no automatic suspension of sentence. Thus, if
new trial?
the imposable penalty is reclusion perpetua, but
after application of the Indeterminate Sentence
It depends. If the testimony of the
Law, the penalty imposed is Reclusion Temporal,
witness pertains to new and material evidence,
the accused is not entitled to automatic
then it is. If not, then it will not be a ground for
suspension of sentence.
new trial.

How about a witness retracting his testimony?


POST CONVICTION REMEDIES Is it a newly discovered evidence?

New Trial or Reconsideration (Rule 121) No. Recantation of testimonies is not


allowed. A recantation is the renunciation in a
At any time before a judgment of
formal or public withdrawal of a prior statement
conviction becomes final, the court may, on
of a witness. This is frowned upon by the courts.
motion of the accused or at its own instance but
The original testimony should be given more
with the consent of the accused, grant a new trial
credence.
or reconsideration.

Note: The court, on its own initiative, may grant Note: While this is the way to answer in
or cause new trial or reconsideration of its classroom discussions or the bar exam, the
judgment. opposite is a prevailing practice in real life. A
motion to dismiss, whether in the preliminary
If the accused wants to avail of new trial investigation, trial court, or appellate court is
or reconsideration, he must file a motion before filed, coupled with an Affidavit of Desistance
the judgment of conviction becomes final. executed by the witness/es. In the said
affidavit, the witness/es recant their previous
Grounds for New Trial (Rule 121 Section 2) testimonies. The motion to dismiss bears the
consent of the public prosecutor, and asks for
The court shall grant a new trial on any
the dismissal of the case on the ground of
of the following grounds:
inability of the prosecutor to prove beyond
a) Errors of law, irregularities reasonable doubt the guilt of the accused, as it
prejudicial to the substantial rights is bereft of any evidence to prove it.
of the accused have been
committed during the trial; But what if the sole evidence for the
Eg. The accused calls for a witness prosecution is a lone witnesss testimony,
but the court disallowed it. which was later discovered to be false, is the
The court forces a witness to subsequent recantation of the sole witness,
testify against himself. now a newly discovered evidence?
The judge/court is the one
conducting the preliminary In that case, it is believed that it is.
investigation, conducts trial without
notice to parties, and capriciously
denies demurrer to evidence
(Gacayan v Pamintuan) What about DNA Evidence?

44
DNA Testing as a Post-Conviction Remedy conviction
becomes final.
What is the rule regarding Post-Conviction DNA Grounds: Limited only To avoid
Testing? to those miscarriage of
mentioned in justice.
The rule on post-conviction DNA testing Rule 121, Sec. *Note: This is a
is expressed in A.M. No. 06-11-5-SC, Effective 2 very broad
Oct. 15, 2007, as follows: ground. It will
warrant
Sec. 6. Post-conviction DNA Testing. Post-
resorting to
conviction DNA testing may be available, without
Reopening of
need of prior court order, to the prosecution or
Trial in case the
any person convicted by final and executory
grounds for
judgment provided that (a) a biological sample
exists, (b) such sample is relevant to the case, appeal, new
and (c) the testing would probably result in the trial, or
reversal or modification of the judgment of reconsideration
conviction. (Rule on DNA Evidence, A.M. No. are not
available.
06-11-5-SC, Effective Oct. 15, 2007)

Sec. 10. Post-conviction DNA Testing


Remedy if the Results Are Favorable to the Note: Remember the language of the rules. In
Convict. The convict or the prosecution may file the period to file the above remedies, they are
a petition for a writ of habeas corpus in the court similar yet phrased differently.
of origin if the results of the post-conviction DNA
testing are favorable to the convict. In case the
court, after due hearing, finds the petition to be Habeas Corpus as a Post-conviction Remedy
meritorious, it shall reverse or modify the
judgment of conviction and order the release of In what instances may habeas corpus be
the convict, unless continued detention is resorted to as post-conviction remedy?
justified for a lawful cause.
The writ of habeas corpus may be
A similar petition may be filed either in the resorted to as post-conviction remedy in any of
Court of Appeals or the Supreme Court, or with the following exceptional circumstances:
any member of said courts, which may conduct a
hearing thereon or remand the petition to the a) there has been a deprivation of
court of origin and issue the appropriate orders. a constitutional right resulting in the restraint of
a person;
Ground for Reconsideration (Rule 121 Section b) the court had no jurisdiction to
3) impose the sentence;
c) the imposed penalty is
The court shall grant reconsideration on excessive, thus voiding the sentence as to such
the ground of errors of law or fact in judgment, excess.
which requires no further proceedings.

Reopening of trial (Rule 119, Section 24) Under the Rule on DNA Evidence, habeas
corpus may also be resorted to as post-
At any time before finality of the conviction remedy where the result of the DNA
judgment of conviction, the judge may, motu examination is favorable to the accused.
proprio or upon motion, with hearing in either
case, reopen the proceedings to avoid a Thus, the writ of habeas corpus was held
miscarriage of justice. available where an accused was deprived of his
right against self-incrimination. (cited in de Villa
New Trial distinguished from Reopening of Trial v. The Director, New Bilibid Prisons, G.R. No.
158802, Nov. 17, 2004).
New Trial Reopening of
Trial But habeas corpus is not available as
When Anytime Anytime before post-conviction remedy where the appeal is still
Filed: before finality of pending. (People v. Maquilan, G.R. No. 126170,
judgment of judgment of Aug. 27, 1998).
conviction.

45
judgment of acquittal came about as a result of
grave abuse of discretion by the courts leading to
Rule 122 (Appeal) a denial or deprivation of the States due
process.
Who may appeal?
Grave Abuse of Discretion in Granting a
The following may appeal.
Demurrer to Evidence Deprives the State or
a) The State Any appeal made by the Prosecution of its Due Process
State must yield to Double Jeopardy.
In Sanvicente v. People, 441 Phil. 139
b) The Accused.
(2002), the Supreme Court upheld the decision
c) The Private Offended Party with
of the CA which reversed the acquittal of the
respect to the civil aspect of the
accused upon a demurrer to evidence, holding
case.
that the trial court committed grave abuse of
The State Questioning or Appealing a Judgment discretion in preventing the prosecution from
of Acquittal establishing the due execution and authenticity
of a certain letter marked as Exh. LL which
*In this particular topic, the more proper term positively identified the accused as the
is The State Questioning/Assailing/ (other perpetrator of the crime charged.
similar terms) a Judgment of Acquittal. A
petition for Certiorari under Rule 65 is not, as it In another case, People v CA G.R. No.
is never, a mode of appeal. A petition for 144332, June 10, 2004, 431 SCRA 610 as cited in
certiorari is an independent and a special civil Almuete v People, 2013, the Supreme Court
action. It is not a continuance of the reversed and set aside an order of acquittal by
proceedings of the lower court. the CA. In this case though, the CA acted with
grave abuse of discretion in issuing the
Note: The state may assail a judgment of judgment. It entertained the case despite the
acquittal only upon the ground that it was wrong mode of appeal resorted to.
deprived of due process. The mode of appeal is
a petition for certiorari under Rule 65 on the Case: ABC is a bus company. D is one of its
ground of grave abuse of discretion amounting employees. D in one occasion rammed the bus
to lack or excess of jurisdiction or denial of due he was driving resulting to loss of lives and
process, or lack or excess of jurisdiction. It must damage to properties. D was charged with
clearly be shown that the State was deprived of Reckless Imprudence resulting to multiple
due process. homicide, for which he was convicted. On the
date of promulgation, D was present. D was
The Supreme Court ruled, in Ysidoro v. ordered to pay a substantial amount to the
Hon. Leonardo-de Castro et al., G.R. No. 171513, victims. He was nowhere to be located during
Feb. 6, 2012, that the rule against double the 15-day period to perfect his appeal. It is now
jeopardy cannot be properly invoked in a Rule ABC Bus Company, who perfected an appeal. It
65 petition, predicated on two exceptional contended that as an employer, it has an
grounds, namely: in a judgment of acquittal interest over the case. With D missing, it will be
rendered with grave abuse of discretion by the the bus company which is likely to shoulder and
court; and where the prosecution had been pay the award. May the appeal prosper?
deprived of due process. (Philippine Rabbit Bus Lines v. Heirs of Eduardo
Mangawang and the People of the Philippines,
Exceptional case of Galman v. Sandiganbayan. GR No. 160355, May 16, 2005)
228 Phil, 42 1986
No. ABC Bus Company is not a party to
This case has something to do with the the criminal action. The employers
Aquino-Galman double murder case. Just to participation is limited to providing its
appease the publics hunger for speedy employees with adequate legal defense. And if
disposition of the case, the case was fast tracked. because of his indifference or inaction the
In the process, everything seemed to be framed, employee is convicted and damages are
scripted, and the trial was later ruled out to be a awarded against him, he cannot later be heard
sham or mock trial. The court acquitted all the to complain, if brought to court for the
accused. The prosecutors though were never enforcement of his subsidiary liability, that he
given a decent chance to present its evidence was not given his day in court.
and witnesses. The judgment of acquittal was
appealed. Upon review, the SC ruled that the

46
Note: The subsidiary liability of the employer Effect of appeal by any of several
may be enforced in the same action by way of a accused.
motion.
a) An appeal taken by one or more of
Period for Perfection of the Appeal several accused shall not affect
those who did not appeal, except
Note: The accused has 15 days from the date of insofar as the judgment of the
promulgation to appeal. appellate court is favourable and
applicable to the latter.
Note: The private offended party has 15 days
b) The appeal of the offended party
from actual or constructive notice of the
from the civil aspect shall not affect
judgment to perfect his appeal.
the criminal aspect of the judgment
What is the fresh 15-day period doctrine, or the or order appealed from.
fresh period rule, or the Neypes doctrine? c) Upon perfection of the appeal, the
(Neypes v CA, GR No. 141524, Sept. 14, 2005) execution of the judgment or final
order appealed from shall be stayed
This doctrine provides that the 15 day as to the appealing party.
period to perfect an appeal is counted not only
within 15 days from the notice of the judgment Case: A and B are charged for murder. The RTC
but also within 15 days from the notice of the found them guilty beyond reasonable doubt.
final order appealed from. If a motion for Both are present during the promulgation. A
reconsideration or a motion for new trial is duly perfected an appeal, while B did not. What
denied, such denial is deemed as the final order. becomes of the judgment rendered in A and B?
From receipt of such notice of denial, the
The judgment becomes final as to B, the
movant has another fresh period within
accused who did not appeal. However, as to A,
which to appeal. The new 15-day period may be
the accused who appealed, the judgment is
availed of only if either motion is filed;
stayed.
otherwise, the decision becomes final and
executory after the lapse of the original appeal What is the effect of the judgment rendered by
period from notice of the judgment. the appellate court on B?
Illustration. As a rule, any judgment rendered by the
appellate court has no effect as to the accused
A was convicted. The Promulgation was on
who did not appeal. However, if the judgment is
October 1, 2014. Thus, A has until October 16,
favorable and applicable to the accused who did
2014 to perfect an appeal. However, instead of
not appeal, it will be applied to him.
filing an appeal, he filed, say a motion for
reconsideration or a motion for new trial on Case: A and B are charged with murder. During
October 15, 2014. The motion was denied. A the trial, B claimed insanity. A raised another
received the order of denial on November 15, defense. The trial court found both of them
2014. When will the 15-day period be reckoned guilty beyond reasonable doubt. B appealed,
from? How many days does A have to perfect his and the CA appreciated his defense of insanity,
appeal? thus he obtained a judgment of acquittal. Will
the judgment rendered by the CA applied to A?
Applying the Neypes ruling, As 15-day
period to appeal is to be counted from No. While the judgment is favorable to
November 15, 2014, and not from October 1, A, it is not applicable to him. The defense of B,
2014. A still has 15 days from to be counted from which is insanity, is a personal one. It is not
November 15, 2014, or until November 30, 2014 applicable to A.
to perfect his appeal. He does not have just one
day left, which is the remaining day of the 15-day Note: Personal circumstances imbecility,
period counted from October 1, 2014. insanity, minority, etc. cannot be appreciated in
favor of the other co-accused.
Effect of Appeal
Note: General Rule: Absconding or jumping bail
A duly perfected appeal stays the during the pendency of appeal results to
judgment abandonment of the appeal.
Note: Sec. 11 of Rule 122. Exception: When the death penalty is
imposed. Automatic review is still conducted by

47
the Supreme Court even if the accused
absconds or jumps bail during the pendency of
his appeal, if the penalty imposed is death. b) Does the reversal of the decision of the
Automatic review affords a second chance to Sandiganbayan as against C benefit L whose
life. appeal was dismissed on technicality?

Note: Death extinguishes a criminal obligation. Section 11(a), Rule 122 of the Revised
As a rule, death of the accused pending appeal Rules of Criminal Procedure provides: An appeal
will result to the dismissal of his appeal. In taken by one or more of several accused shall not
certain instances though, if two or more co- affect those who did not appeal, except insofar
accused appealed separately, death of one will as the judgment of the appellate court is
not necessarily result in the dismissal of his favorable and applicable to the latter. The
appeal. phrase did not appeal applies also to a co-
accused who withdrew his appeal, failed to file
additional discussions/notes: an appellants brief, or filed a notice of appeal
with the trial court but eventually withdrew the
C and L, who were charged as co-conspirators, same. The Supreme Court has at various times
were convicted of violation of R.A. No. 3019 applied the foregoing provision without regard
(Anti-Graft and Corrupt Practices Act) in a to the filing or non-filing of an appeal by a co-
judgment rendered by the Sandiganbayan, accused, so long as the judgment was favorable
imposing upon each of them the penalty of to him. Thus, the foregoing provision should be
imprisonment from six years and one month to applied to L whose appeal was dismissed on
twelve years and one month. They filed technicality. (Constantino v. Sandiganbayan, et
separate appeals to the Supreme Court by filing al., G.R. No. 140656, Sept. 13, 2007; Lindong v.
their respective petitions for review on People, et al., G.R. No. 154482, Sept. 13, 2007.)
certiorari. Ls appeal was dismissed on
technicality. During the pendency of the Change of Theory or Raising New Issues on
appeal, C died. Appeal for the First time is not allowed.

a) Should Cs appeal be dismissed on the As a rule, points of law, theories, issues


ground that his death has rendered his appeal and arguments not adequately brought to the
moot and academic as his death has already attention of the trial court ordinarily will not be
extinguished his criminal liability? considered by a reviewing court as they cannot
be raised for the first time on appeal because this
No. Cs appeal should not be dismissed. would be offensive to the basic rules of fair play,
The two petitions are so intertwined that the justice and due process. It is only for exceptional
absolution of C is ultimately determinative of the and compelling reasons in the interest of
absolution of L. The exoneration of C will substantial justice or to avoid miscarriage of
necessarily signify the injustice of carrying out justice that the court may relax entertain new
the penalty imposed on L. Thus, the SC, in this issues on appeal.
instance, has to ascertain the merits of Cs
appeal to prevent a developing miscarriage of On Appeal, a Higher Penalty may be Imposed
justice against L.
An appeal throws the entire case open
Courts must still decide cases, otherwise for review. Even the correct penalty may be
moot and academic, in the following instances: increased if it is proper.
(1) there is a grave violation of the Constitution;
(2) the exceptional character of the situation and Modes of Appeal
the paramount public interest is involved; (3)
Always remember:
when constitutional issue raised requires
formulation of controlling principles to guide the Ordinary appeal under rule 41 is
bench, the bar, and the public; (4) the case is perfected by filing a notice of appeal with the
capable of repetition yet evading review. RTC that rendered the judgment, and never
with the appellate court.
In the problem presented, the
exceptional character of the appeal of C and L in The decision of the MTC is always
relation to each other, as well as the higher appealed by way of ordinary appeal under Rule
interest of justice, requires that the Court 40. It is perfected by filing a notice of appeal
determine the merits of Cs petition and not with the MTC that rendered the judgment, and
dismiss it outright on the ground of mootness. never with the appellate court.

48
The only way to appeal a decision affirms (SB exercising appellate
rendered by the CA to the SC is through a jurisdiction) a penalty lesser than
petition for review under Rule 45 on pure death, reclusion perpetua, or life
questions of law. There are certain exceptions imprisonment.
though, such as in cases of automatic review.

Resorting to Wrong Mode of Appeal.

As a rule, resorting to the wrong mode of


appeal will not stay the judgment. The judgment
simply becomes final as if no appeal has ever
been filed or perfected. Once more, it is only for
exceptional and compelling reasons in the
interest of substantial justice or to avoid
miscarriage of justice that the court may relax
the rules on technicality of appeals.

People v CA, G.R. No. 144332, June 10, 2004,


431 SCRA 610

A, B, C, and D, failed to appear in the


promulgation of the judgment of conviction
against them. They alleged that they were ill.
They never filed any motion for leave to avail of
post conviction remedies. Instead they filed a
motion for reconsideration questioning the
validity of the promulgation. Their motion was
denied. They appealed the decision of the RTC to
the CA. Alleging grave abuse of discretion
amounting to lack or excess of jurisdiction in the
conduct of the promulgation and in the denial of
their motion for reconsideration, they resorted
to a petition for certiorari under Rule 65. It was
granted, and the CAs decision reversed the trial
courts judgment of conviction. The State *Note: This is a peculiar appeal.
through the Solicitor General appealed the case
to the SC alleging grave abuse of discretion on In appealing cases from the
the part of the CA. The proper remedy of the Sandiganbayan (SB), it never passes through the
accused should have been ordinary appeal, and Court of Appeals (CA). As a rule, cases from the
not a petition for certiorari. The SC subsequently SB are never appealed to the CA.
reversed the CAs judgment of acquittal and
Ordinarily, the decision of the RTC
reinstated the judgment of conviction by the
exercising its original jurisdiction is not
RTC. In doing so, the SC ruled that a petition for
appealed via a rule 42 petition. A Rule 42
certiorari is only available when there is no
petition supposedly is the one resorted to in
appeal or any other plain, adequate and speedy
appealing cases decided by the RTC in its
remedy in the ordinary course of law. In the case
appellate jurisdiction.
of the accused, the judgment of conviction was
not tainted with grave abuse of discretion. It was 2) The Sandiganbayan in the exercise of its
a valid judgment. The proper remedy is appeal. original jurisdiction imposes the
penalty of either reclusion perpetua or
Note: this case used the phrase, writ of error it
life imprisonment.
is another term for ordinary appeal.

Modes of Appeal in Sandiganbayan Cases

1) The Sandiganbayan imposes (SB


exercising original jurisdiction) or

49
3) The Sandiganbayan in the exercise of its
original jurisdiction imposes the death
penalty

Appeal for Regular Courts.

1) Appealing decision of the MTC/


Appellate jurisdiction of the RTC (It is
4) The Sandiganbayan in the exercise of its understood that the RTC in its appellate
appellate jurisdiction affirms the jurisdiction can only impose penalties
penalty of death, reclusion perpetua, or less than death, reclusion perpetua or
life imprisonment life imprisonment.)

50
3) The RTC in its original jurisdiction
imposes the penalty of either reclusion
perpetua or life imprisonment.

4) The RTC in its original jurisdiction


imposes the death penalty.

2) The RTC in its original jurisdiction


imposes a penalty less than death,
reclusion perpetua, or life
imprisonment.

Rules 123 - 125. Just read these rules. Note


uniformity of procedure, how judgment is
promulgated in the appellate courts, and their
mode of appeals as amended by relevant
Supreme Court Circulars. (The simplified
diagrams showing the modes of appeal in

51
criminal cases are shown in the preceding justified, which may be served in places outside
topics.) the territorial jurisdiction of said courts. (AM No.
99-20-09 SC

Note: Search and Arrest warrants issued


Search and Seizure (Rule 126) pursuant to AM No. 99-20-09 SC may be served
outside the territorial jurisdiction of the RTC of
Note: This topic is a better scope for Political
Manila or Quezon City.
law. The presumption for students taking
criminal procedure is that they were able to Under AM No. 99-20-09 SC, who acts upon the
pass criminal law 1 and 2 and Constitutional law application?
1 and 2. For Criminal Procedure, the focus is on
the remedies such as motion to quash, and the The Executive Judge and Vice Executive
remedies for denial of a motion to quash. The Judges of Regional Trial Courts in Manila and
requisites as to probable cause, examination of Quezon City act upon all applications for search
witnesses, instances of lawful warrantless warrants involving heinous crimes, illegal
searches, and others are better covered by the gambling, dangerous drugs and illegal
subjects on Political law. possession of firearms.

What is a search warrant? (Rule 126 Section 1) Is it necessary that the heads of the offices
mentioned under AM No. 99-20-09 SC be the
A search warrant is an order in writing ones to personally endorse the application for
issued in the name of the People of the search warrants?
Philippines, signed by a judge and directed to a
peace officer, commanding him to search for No, nothing in AM No. 99-10-09-SC
personal property described therein and bring it prohibits the head of NBI and of other law
before the court. enforcement agencies mentioned from
delegating their ministerial duty of endorsing
Where is the application for a search warrant the application to their assistant heads.
filed? (Rule 126, Section 2) Besides, under Section 31, Chapter 6, Book IV of
the Administrative Code of 1987, an assistant
An application for search warrant shall
head or other subordinate in every bureau may
be filed with the following:
perform such duties as may be specified by their
a) Any court within whose superior or head, as long as it is not inconsistent
territorial jurisdiction a crime was committed. with law. (Sps. Marimla v People GR No.
b) For compelling reasons stated in 158467, October 16, 2009)
the application, any court within the judicial
Does an application for a search warrant
region where the crime was committed if the
partake a criminal action or at least in the
place of the commission of the crime is known,
nature of a criminal action?
or any court within the judicial region where the
warrant shall be enforced. No. A search warrant is not a criminal
c) However, if the criminal action action nor does it represent a commencement of
has already been filed, the application shall only a criminal prosecution even if it is entitled like a
be made in the court where the criminal action criminal action. It is not a proceeding against a
is pending. person but is solely for the discovery and to get
d) In cases involving heinous possession of personal property. It is a special
crimes, illegal gambling, dangerous drugs and and peculiar remedy, drastic in nature, and made
illegal possession of firearms, the application necessary because of public necessity. It
may be filed with the Regional Trial Courts of resembles in some respects with what is
Manila and Quezon City if the application is filed commonly known as John Doe proceedings.
by the Philippine National Police (PNP), the (United Laboratories, Inc. V. Isip, 461 SCRA 574)
National Bureau of National Investigation (NBI),
the Presidential Anti-Organized Crime Task Force *Therefore, the proceedings for the application
(PAOC-TF), and the Reaction Against Crime Task for a search warrant need not be initiated by
Force (REACT-TF). The applications shall be the state prosecutor, and the court may not
personally endorsed by the Heads of the said quash the application for a search warrant or
agencies, for the search of places to be the search warrant itself due to the fact that it
particularly described therein, and the seizure of does not bear the conformity of the public
property or things as described in the Rules of prosecutor. (Worldwide Web Corporation et al.
Court, and to issue the warrants of arrest, if

52
v. People of the Philippines et al., G.R. No. a) Personal property subject of the offense
161106, Jan. 13, 2014) b) Personal property stolen or embezzled
and other proceeds, or fruits of the
Case: The applicant for a search warrant filed offense; or
his application before the court. His application c) Personal property used or intended to
does not bear the approval or any conformity of be used as a means of committing an
the state prosecutor. As a consequence, his offense.
application was quashed by the court. To justify
its ruling, it cited Rule 110, Sec. 5 providing that What are the requisites for a search warrant
All criminal actions commenced by a complaint under the Rules of Court? (Rule 126, Section 4)
or information shall be prosecuted under the
direction and control of the prosecutor. Is the The following are the requisites for a
court correct? search warrant under the Rules of Court.

No, the court is not correct. Sec. 5, Rule a) There must be probable cause in
110 does not apply because an application for connection with one specific
search warrant, although it is a criminal process, offense.
is not a criminal action. Therefore, the b) The presence of probable cause is to
conformity of the public prosecutor is not be determined by the judge
necessary to give the applicant a personality to personally.
question an order quashing the search warrant. c) The determination by the judge
(Worldwide Web Corporation et al. v. People of must be made after an examination
the Philippines et al., G.R. No. 161106, supra) under oath or affirmation of the
complainant and the witnesses he
may produce.
Is it necessary to furnish a notice or copy of the d) The warrant must specifically
application for a search warrant to the party describe the place to be searched
against whom properties will be seized? and the things to be seized which
may be anywhere in the Philippines.
No. An application for a search warrant
is heard ex-parte. It is neither a trial nor a part of *Note: Roving or scattershot warrants are void.
the trial. Action on these applications must be They are issued for more than one offense.
expedited for time is of the essence. Great
reliance has to be accorded by the judge to the Adherence to the above requisites is
testimonies under oath of the complainant and necessary to prevent a fishing expedition.
the witnesses. (Chemise Lacoste, S.A. v
*Note: The topics under this section are
Fernandez, 214 Phil. 332; Santos v Pryce Gases,
appropriate subjects of Constitutional Law or
Inc., GR No. 165122, November 23, 2007)
Political Law.
(Just imagine the consequences if prior notice
What must a judge do before issuing a search
must be given to the person against whom,
warrant? (Rule 126 Sec. 4)
personal property will be seized i.e. drug
dealer, suspected killer, thief, robber, carnapper, The judge must, before issuing the
etc. All the weapons, drug paraphernalia, or any warrant personally examine in the form of
other item that may be confiscated will easily be searching questions and answers, in writing and
concealed and the application will definitely be under oath, the complainant, and the witnesses
opposed) he may produce on facts personally known to
them and attach to the record their sworn
Does an application for a search warrant need
statements, together with the affidavits
to have a certification of non-forum shopping?
submitted.
No, there is no rule requiring that it
Are witnesses needed during the conduct of the
bears a certification of non-forum shopping.
search and seizure? (Rule 126 Section)
What property may be seized? (Rule 126,
Yes, at least two witnesses are needed.
Section 3)
The Rules provide that no search of a house,
The property subject of a search warrant room, or any other premises shall be made
is personal property, not real property. A search except in the presence of the lawful occupant
warrant may be issued not only for the search thereof or any member of his family or in the
but also for the seizure of the following.

53
absence of the latter, two witnesses of sufficient The motion to quash must be filed
age and discretion residing in the same locality. before arraignment and entry of plea. An
accused may be estopped from questioning the
How long is a search warrant valid? (Rule 126, defects in the issuance or enforcement of the
Section 10) search warrant by failing to move to quash the
search warrant or by entering a plea and
A search warrant shall be valid for ten
participating in trial. (People v. Guillermo, 291
(10) days from its date. Thereafter, it shall be
SCRA 761 [1998])
void.
What is the remedy available as against the
What time must the search be made? (Rule 126
items seized by virtue of an illegal or void
Section 9)
warrant?
The warrant must direct that it be served
The following are the remedies available
in the day time, unless the affidavit asserts that
in relation to the items that were seized by virtue
the property is on the person or in the place
of an illegal or void search warrant.
ordered to be searched, in which case a direction
may be inserted that it be served at any time of 1) Motion to suppress illegally
the day or night. obtained or seized evidence.
2) Replevin
What is the remedy of an accused should he
3) Petition for Certiorari
want to question a search warrant?
*Note: Motion to suppress illegally obtained or
The accused must file a motion to quash
seized evidence will prevent the presentation of
the search warrant on the ground that it is
these pieces of evidence before the court.
improperly issued or that it is void.
Replevin is a remedy to regain or take
What is the issue in a motion to quash a search
possession over personal properties.
warrant?
Petition for Certiorari under Rule 65 is
In a motion to quash a search warrant,
available only in the instance of grave abuse of
what is assailed is the validity of the issuance of
discretion amounting to lack or excess of
the warrant. The manner of serving the warrant
jurisdiction. Again, what is assailed is the validity
and of effecting the search are not an issue to be
of the search warrant, and nothing else.
resolved in said motion. (People v CFI of Rizal,
101 SCRA 86, [1980]) Where must one file his motion to quash a
search warrant or to suppress evidence? (Rule
Who may question a search warrant?
126, Section 14)
Any party whose interests may be
A motion to quash a search warrant
adversely affected may question the search
and/or to suppress evidence obtained by virtue
warrant. (Dean Agra) It is settled rule that the
of the warrant may be filed and acted upon only
legality of a seizure can be contested only by the
by the court where the action has been
party whose rights have been impaired thereby,
instituted.
and that the objection to an unlawful search and
seizure is purely personal and cannot be availed If no criminal action has been instituted
by third parties. (Nasiad v. CTA, 61 SCRA 238 the motion may be filed in and resolved by the
[1974]; Santos v Pryce Gases, Inc. GR No. 165122, court that issued the search warrant. However, if
November 23, 2007) such court failed to resolve the motion and a
criminal case is subsequently filed in another
Note: The manager of an establishment is a real
court, the motion shall be resolved by the latter
party-in-interest to seek the quashal of the
court.
search warrant, for the obvious reasons that the
search warrant, if he is named as the respondent Otherwise stated, the preceding question may
and the place or premises to be searched is the be answered this way.
establishment he is managing. A corporation,
being the owner of the items seized is also a real The motion to quash a search warrant or
party-in-interest who may question the search to suppress evidence may be filed as follows:
warrant. (Santos v. Pryce Gases, supra)
a) In the court where the criminal case has
When must one file a motion to quash the been filed.
search warrant?

54
*This presupposes that a criminal case has be filed (here, the application for search warrant
been filed. It also contemplates a situation is instituted as a principal proceeding prior to the
where the court that issued the search filing of the criminal action). (Wordlwide Web
warrant and the court where the Corporation et al. v. People. Supra)
information was filed are different.
b) If no case has yet been filed, the motion is If the application is filed not within the
filed with the court that issued the search circumstances mentioned above, it is said to be
warrant. independent from/of a criminal action. The
c) But if the motion to quash a search application is independent from/of a criminal
warrant filed with a court that issued the action, if it is not incidental thereto. (by analogy.
search warrant has not yet been resolved, Hehe)
and subsequently, a criminal case has
2014 Bar Essay Type Question in Remedial Law.
been filed, the court where the criminal
- A search warrant was issued for the purpose
case has been filed will resolve the
of looking for unlicensed firearms in the house
motion.
of Ass-asin, a notorious gun for hire. When the
Case: A search warrant was obtained leading to police served the warrant, they also sought the
search and seizure of some items under Xs assistance of the barangay tanods who were
custody. X filed a motion to quash the search assigned to look at other portions of the
warrant, which was subsequently denied. May premises around the house. In an Nipa hut,
X still file a motion to suppress illegally thirty (30) meters away from the house of Ass-
obtained evidence? asin, a baranggay tanod came upon a kilo of
marijuana that was wrapped in news print. Ass-
No, X may no longer file a motion to asin objected to the introduction of such
suppress illegally obtained evidence. It will evidence claiming that it was illegally seized. Is
simply be a rehash of the issues in the earlier the objection valid? (This is originally an essay
filed motion to quash the warrant. In order to type question but suppose it is converted into
resolve Xs motion to suppress, the court will an MCQ with the following choices, how would
dwell once more on the issue of legality of the you answer it?)
search, which has already been duly tackled in
denying the motion to quash. a. No, the search was done in plain view.
b. No, the search was done pursuant to a
What then is the remedy of an accused whose validly issued warrant.
motion to quash the search warrant has been c. No, the search warrant authorizes the
denied? search for weapons. This includes the
authority to search to open closets,
It depends. It is either a petition for drawers, chests and containers in which
certiorari under Rule 65 or an ordinary appeal. A the weapons might be found. The
petition for certiorari is the remedy when the structures annexed to the place
application for a search warrant is filed incidental described to be searched may also be
to a criminal action, or in anticipation of a validly searched.
criminal action. In this case, the denial of the d. Yes, the search warrant was for the
motion to quash the search warrant is merely an house, and not the nipa hut.
interlocutory order, which cannot be appealed.
Appeal is the remedy when the application for a The correct answer is letter D. Where the
search warrant is filed independently from/of a warrant is unambiguous and limited only to a
criminal action. In such instance, the denial of particular place like a store described in the
the motion to quash is a final order, which is the warrant, the search does not extend to the
proper subject of an appeal. (Worldwide Web apartment units located at the back of the store
Corporation et al. v. People of the Philippines et even if the sketch submitted to the judge include
al., G.R. No. 161106, Jan. 13, 2014) the apartments. It is neither fair nor licit to allow
the officers to search a place not described in the
When is an application for a search warrant warrant because the place not described is what
filed incidental to a criminal action? When is it the officers had in mind.
filed independently from/of a criminal action?
*In other words, the place described in the
An application for search warrant may warrant is controlling.
be filed as an incident in a main criminal case
already filed in court. Or, such an application Letter A is not applicable. A search in plain view
may be filed in court in anticipation of one yet to needs a lawful warrantless arrest.

55
Letter B is irrelevant. Yes, the provisional remedies in civil
actions, insofar as they are applicable, may be
Letter C is incorrect. It is true that a search availed of in connection with the civil action
warrant for weapons authorizes the searching deemed instituted with the criminal action.
party to open closets, drawers, chests and
containers that may harbor weapons. It is only *Note: To avail of a provisional remedy in a
when the place described in the warrant is a land criminal action, it must be one with a
that the structures annexed to it may be validly corresponding civil liability. If there is civil
searched. At any rate, letter c may not be the liability, the civil action must be one arising from
answer since the warrant is only for the house, the offense charged and which action must be
and not the nipa hut. one arising from the action.

*Under the facts of the case, there may also be What then are these provisional remedies?
another reason why Ass-asins objection may be
sustained. While the problem dwelt on the issue The following are the provisional
of the place described in the warrant, it never remedies available in a criminal action.
mentioned anything about compliance with the
a) Preliminary attachment
two witness rule.
b) Preliminary injunction
So if I were to answer the above question in an c) Receivership
essay form, I will do it this way. d) Replevin
e) Support Pendent elite
Yes, Ass-asins objection is valid.
Foremost, the search warrant is for the house, The reference to provisional remedies in
and not the nipa hut. The place described in the Rule 127 is made in general terms.
warrant is controlling, and the search party does
When is preliminary attachment available?
not have any authority to search for places not
included in it. Further, under the facts of the When the civil action is properly
case, there was no compliance with the two- instituted in the criminal action as provided in
witness rule. Rule 111, the offended party may have the
property of the accused attached as security for
the satisfaction of any judgment that may be
recovered from the accused in the following
cases:

a) When the accused is about to abscond


from the Philippines;
b) When the criminal action is based on a
claim for money or property embezzled
or fraudulently misapplied or converted
to the use of the accused who is a public
officer, officer of a corporation,
attorney, factor, broker, agent or clerk,
in the course of his employment as such,
or by any other person in a fiduciary
capacity, or for a wilful violation of a
duty;
c) When the accused has concealed,
removed, or disposed of his property, or
is about to do so; and
d) When the accused resides outside the
Philippines.

May an Accused avail of the Writs of


Preliminary or Final Injunction, or Prohibition to
restrain the criminal action from proceeding?
Provisional Remedies (Rule 127)
As a general rule, courts will not issue
Are provisional remedies available in criminal
writs of prohibition or injunction, preliminary or
cases?
final, to enjoin or restrain criminal prosecution.

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However, there are exceptions. In these
instances, prohibition or injunction may be
availed of to restrain the criminal action from
proceeding. The exceptions are the following.

1) When the injunction is necessary to


afford adequate protection to the constitutional
rights of the accused;
2) When it is necessary for the orderly
administration of justice or to avoid oppression
or multiplicity of actions;
3) When there is a prejudicial
question which is sub judice;
4) When the acts of the officer are
without or in excess of authority;
5) When the prosecution is under an
invalid law, ordinance or regulation;
6) When double jeopardy is clearly
apparent;
7) When the court has no
jurisdiction over the offense;
8) When it is a case of persecution
rather than prosecution;
9) When the charges are
manifestly false and motivated by the lust for
vengeance;
10) When there is clearly no prima
facie case against the accused and a motion to
quash on that ground has been denied.
(Borlongan Jr. v. Pena, et al. G.R. No. 143591,
Nov. 23, 2007).

SPECIAL THANKS TO MY STAFF, FRIENDS AND


PROFESSORS WHOSE LECTURES, NOTES,
PERSONAL OPINIONS GREATLY CONTRIBUTED
TO THIS MATERIAL. YOU KNOW WHO YOU ARE,
SIRS. GOD BLESS!

***************************************

NOTE: This is for our class only. Please do not


give it to others without asking my permission.

May you all have a merry Christmas and a


prosperous new year!!!!!

Good luck!!!!!

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