Criminal Procedure

RULE 117

Reporters:

Santiago, Marrie Angela

Valmoria, Karen
Maybanay, Majoy

Motion to Quash

What is QUASH?

To overthrow ; to abate; to annul ; to make void. (Black’s Dictionary)

Motion to Quash

A motion to quash is the mode by which an accused assails, before entering his plea,
the validity of the criminal complaint or the criminal information filed against him for
insufficiency on its face in point of law, or for defect apparent on the face of the Information
(Los Baos vs. Pedro, 1999)

- A special pleading filed by the accuse before entering his plea wherein he
hypothetically admits the truth of the facts spelled out in the information/complaint at
the same time that he sets up a matter which, if duly proved, would preclude further
proceedings
- Interlocutory in character
o So if dismissed, the remedy is generally not to appeal on certiorari but to
appeal after trial. XPN: grave abuse of discretion
o If granted, it is a final order so therefore immediately appealable, provided no
double jeopardy attaches

Section 1

Time to move to quash. — At any time before entering his plea, the accused may
move to quash the complaint or information.

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 General RULE: In Criminal Procedure, the accused may move to quash the
complaint or information anytime before entering the plea.

Exception: The following grounds may be used in Motion To Quash even after plea:

(1) Lack of jurisdiction over the offense charged;

(2) Extinction of the criminal action or liability;

(3) Double jeopardy; and

(4) The facts charged do not constitute an offense

(Rule 117, Sec. 9)

- the right to file a motion to quash belongs only to the accused

- there is nothing in the rules which authorizes the court/judge to motu propio initiate a
motion to quash if no such motion was filed by the accused

- a motion contemplates an initial action originating from the accused who is in the best
position to know on what ground/s he will base his objection to the information

- otherwise, if the judge initiates the motion to quash, then he is not only prejudging the case
of the prosecution but also takes side with the accused (People v. Nitafan, Feb 1, 1999)

- this rule is supported by Section 2...

Section 2

Form and contents. — The motion to quash shall be in writing, signed by the accused
or his counsel and shall distinctly specify its factual and legal grounds. The court shall
consider no ground other than those stated in the motion, except lack of jurisdiction over the
offense charged.

WHAT IS THE FORM REQUIRED FOR A MOTION TO QUASH?

1. It must be in writing;

2. It must be signed by the accused or his counsel ;

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3. It must specify its factual and legal grounds, and the court will not consider any ground
not stated in the motion.

- Thus, any ground not alleged shall not be taken cognizance of by the court; it is
deemed waived, that he is deemed to have desired these matters to be litigated upon in
a full-blown trial. The only XPN…

Exc: The only ground that the court may consider motu propio, even if
not raised, is lack of jurisdiction over the offense charged.

- Because jurisdiction over the subject matter is conferred by law

Section 3.

- Most of these grounds are waivable

Grounds. — The accused may move to quash the complaint or information on any of the
following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or justification;
and

(i) That the accused has been previously convicted or acquitted of the offense charged, or the
case against him was dismissed or otherwise terminated without his express consent.

1st Ground: That the facts charged do not constitute an offense

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 How to know that the complaint or information do not constitute an offense?

- We look at the allegations in the complaint or information. Whether the facts

alleged would establish the essential elements of the crime as defined by law.

- cannot be waived because there is no offense to be punished for to speak of

2nd Ground: That the court trying the case has no jurisdiction over the offense charged

Jurisdiction over a criminal case is determined by the allegations of the complaint.

- Based on the penalty or place where the offense was committed – territorial
jurisdiction
- Cannot be waived because it is conferred by law

3rd Ground: That the court trying the case has no jurisdiction over the person of the
accused

Jurisdiction over the person is acquired by the court by virtue of the party’s or the
voluntary submission of the accused to the authority of the court or through the exercise of its
coercive process (Arnado vs. Buban, 2004).

- Stated otherwise, the court acquires jurisdiction over the person of the accused only
when there was an arrest or the accused voluntarily surrenders or appears before the
court
- waivable

4th Ground: That the officer who filed the information had no authority to do so

A valid information must be signed by a competent officer, which, among other requisites,
confers jurisdiction over the person of the accused and the subject matter of the accusation.

Thus, an infirmity in the information such as the lack of authority of the officer signing it
cannot be cured by silence, acquiescence, express consent, or even amendment (Cudia vs.
CA, 1998).

Hence, when the officer is without authority to file the information, the trial court cannot
acquire jurisdiction over the case. A motion to quash will prosper.

- Note that the fiscal/prosecutor has the authority to file a case

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 - Hence, say, for example, if it was the clerk who signed for the city prosecutor, the
accused can move to quash because the clerk is not authorized
- waivable

5th Ground: That it does not conform substantially to the prescribed form

First, the complaint or information must abide to the form prescribed in Rule 110.

- Name of the accused, designation of the offense charge, acts and omissions
constituting the same, time, place

Further, the additional form prescribe in this rule is that of a certification is required.

- Provided in Rule 112

The fiscal will certify that he/she has conducted the preliminary investigation, and that the
other party was given a chance to be heard.

When the other party was not given the chance to answer, it may be a ground for dismissal of
the case.

- waivable

6th Ground: That more than one offense is charged except when a single punishment for
various offenses is prescribed by law

Refers to a duplicitous complaint or information

- the exception refers to special complex crimes (e.g. rape with homicide)

If the accused fails to object to information or complaint before the trial, the court can convict
him as many as the offenses charged

Rule 110

Under this rule, duplicity of offenses are not allowed

Rule 117

Waivable, therefore the offender may be convicted to as many offenses is charged upon him.

7th Ground: That the criminal action or liability has been extinguished

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 - Art. 89, RPC provides the rule on how is criminal liability is extinguished
- Example: by prescription
- not waivable because, of course, the liability has already extinguished

8th Ground: That it contains averments which, if true, would constitute a legal excuse or
justification

- (e.g. self-defense) information is admitting that the accused has acte in self-defense.
The prosecutor admits himself that the accused acted in self-defense. Therefore, the
information admits the existence of a justifying circumstance
- Another example is insanity
- But this is very rare
- waivable

9th Ground: That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without his
express consent.

This is better known as the defense against double jeopardy

- Very complicated ground, thus, it will be discussed in length in section 7

- waivable

The following are the grounds that are waivable:

3. The court has no jurisdiction over the person of the accused

4. The investigating officer who filed the complaint or information has no authority to do so

5. It does not conform substantially to the prescribed form

6. The information or complaint charges more than one offense

8. It contains averments that, if proven, constitute a legal excuse or justification

9. The accused has been convicted or acquitted of the offense charged, or his case has been
otherwise terminated without his express consent

Section 4

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 Amendment of the complaint or information. — If the motion to quash is based on an
alleged defect of the complaint or information which can be cured by amendment, the court
shall order that an amendment be made. (4a)

If it is based on the ground that the facts charged do not constitute an offense, the
prosecution shall be given by the court an opportunity to correct the defect by amendment.
The motion shall be granted if the prosecution fails to make the amendment, or the complaint
or information still suffers from the same defect despite the amendment. (n)

- Some of the grounds are not fatal and may be cured by amendments
- The 2nd par was added to complement the first par
- E.g. the information does not comply with prescribed form – formal defect – curable

If the motion to quash is based on:

A) An alleged defect of the complainant or information which can be cured by amendment:

1. The court shall not quash outright

2. It shall order that an amendment be made

B) The ground that the facts charged do not constitute an offense:

1. The court shall not quash the complaint or information outright

2. It shall give the prosecution an opportunity to correct the defect by amendment

The court shall grant the motion to quash the complaint or information if:

1. The prosecution fails to make the amendment, or

2. The complaint or information still suffers from the same defect despite the
amendment

Section 5

Effect of sustaining the motion to quash. — If the motion to quash is sustained, the
court may order that another complaint or information be filed except as provided in section 6
of this rule. If the order is made, the accused, if in custody, shall not be discharged unless
admitted to bail. If no order is made or if having been made, no new information is filed
within the time specified in the order or within such further time as the court may allow for

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good cause, the accused, if in custody, shall be discharged unless he is also in custody for
another charge.

General Rule: The court may order that another complaint or information be filed

Exc: An order sustaining the motion to quash is a bar to the filing of another
complaint or information if the motion was based on the grounds that:

The criminal liability of the accused has been extinguished, or

The acccused will be placed in double jeopardy

Effects on the accused who is in custody:

1. If the court issues the order to file a new complaint or information:

And a new information is timely filed – he shall not be discharged unless admitted to bail

But no new information is filed within the time specified – he shall be discharged unless he is
in custody for another charged

2. If the court does not order that a new information be filed – he shall be discharged unless
he is in custody for another charge

In a 2006 case, the court ruled that “ In cases falling under Sec. 5 of Rule 117, where
the motion to quash is sustained on grounds other than those stated in Sec. 6 of the same rule,
the trial court has the discretion to order the filing of another information within a specified
period which is extendible to such further time as the court may allow for good cause.

The order to file another information, if determined to be warranted by the

circumstances of the case, must be contained in the same order granting the motion to quash.
If the order sustaining the motion to quash does not order the filing of another information,
and said order becomes final and executory, then the court may no longer direct the filing of
another information ” (Gonzales vs. Hon. Salvador and Glen Dale, 2006)

Section 6

Order sustaining the motion to quash not a bar to another prosecution; exception. —
An order sustaining the motion to quash is not a bar to another prosecution for the same

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offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this
Rule. (6a)

Effects when order to File another complaint or information is made by the court:

General Rule: this shall not be a bar to another prosecution for the same offense

Exception: This shall be a bar to another prosecution for the same offense if the
motion was based on the grounds that:

1. that the criminal liability of the accused has been extinguished under
section 3(g);

2. Double Jeopardy Section 3(i)

Remember:

When a case is quashed on the ground that the criminal liability has been extinguished or the
accused is placed in double jeopardy, once it is quashed, it cannot be re-filed.

Section 7

Former conviction or acquittal; double jeopardy. — When an accused has been

convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information
or other formal charge sufficient in form and substance to sustain a conviction and after the
accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal
of the case shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for
an offense which necessarily includes the offense charged in the former complaint or
information under any of the following instances:

(a) the graver offense developed due to supervening facts arising from the same act or
omission constituting the former charge;

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 (b) the facts constituting the graver charge became known or were discovered only
after a plea was entered in the former complaint or information; or

(c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.

In any of the foregoing cases, where the accused satisfies or serves in whole or in part
the judgment, he shall be credited with the same in the event of conviction for the graver
offense

What is Jeopardy?

Jeopardy is the danger of conviction and punishment which the defendant in a crim-
inal action incurs when a valid indictment has been found, and a petit jury has been
impaneled and sworn to try the case and give a verdict. (Black’s Law)

Double jeopardy?

It means that when a person is charged with an offense and the case is terminated
either by acquittal or conviction or in any other manner without the consent of the accused,
the latter cannot again be charged with the same or identical offense.

The rule against double jeopardy protects the accused not against the peril of second
punishment but against being tried for the same offense... (Mallari vs. People)

What are the requisites of double jeopardy in order to attach?

(1) there must be a complaint or information or other formal charge sufficient in form and
substance to sustain a conviction;

(2) the complaint or information must be filed before a court of competent jurisdiction;

(3) the accused has been arraigned and has pleaded to the charges;

(4) the accused must have been convicted or acquitted or the case against him was dismissed
or otherwise terminated without his express consent.

(Alonto vs. People, 2004)

(5) He is prosecuted anew for:

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The offense charged, or

Any attempt to commit the same, or any frustration thereof,

Any offense which:

Necessarily includes the offense charged in the former complaint

Is necessarily included in the offense charged in the former complaint or information

Valid complaint or information:

1. If it charges an offense;

2. If it is filed by a person or officially to do so.

“The filing of the information in the Sandiganbayan did not put petitioners in double
jeopardy even though they had already pleaded not guilty to the information earlier filed in
the RTC. The first jeopardy never attached in the first place, the RTC not being a court of
competent jurisdiction.

There can be no double jeopardy where the accused entered a plea in a court that had
no jurisdiction. The remedy of petitioners, therefore, was not to move for the quashal of the
information pending in the Sandiganbayan on the ground of double jeopardy. Their remedy
was to move for the quashal of the information pending in the RTC on the ground of lack of
jurisdiction.” (Binay vs. Sandiganbayan, 1999)

A conditional arraignment does not amount to a waiver of the right against double
jeopardy, given that the condition attached to the arraignment must be unmistakable and
express.

In what instances may the accused invoke the protection of double jeopardy?

1. When the accused had been previously convicted;

2. When the accused had been previously acquitted; and

3. When the case against the accused had been dismissed or otherwise terminated
without his express consent.

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Remember:

“The mere filing of two (2) informations charging the same offense is not an appropriate
basis for the invocation, acquittal or termination of the case without the consent of the
accused”

(People vs. Pineda, 1993)

When the conviction of accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information:

1. The graver the offense developed due to supervening facts arising from the same act
or omission constituting the former charge;

2. The Facts constituting the graver charge became known or were discovered only after a
plea was entered in the former complaint or information; or

3. The plea of guilty to the lesser offense was made without the consent of:

The prosecutor, and

The offended party except when:

1. The offended party fails to appear despite due

notice, or

2. There is no private party

Section 8

Provisional dismissal. — A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years
or a fine of any amount, or both, shall become permanent one (1) year after issuance of the
order without the case having been revived. With respect to offenses punishable by
imprisonment of more than six (6) years, their provisional dismissal shall become permanent
two (2) years after issuance of the order without the case having been revived.

Requites for a case to be provisionally dismissed:

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It must have the EXPRESS CONSENT of the accused, and

NOTICE must be given to the offended party

Effect of granting provisional dismissal

The case may be REVIVED, provided the revival is made within the following periods:

MTC cases – 1 year from provisional dismissal

RTC cases – 2 years from provisional dismissal

Effect of failure to revive within stated period

Dismissal becomes permanent

What are the requisites for provisional dismissal?

1. Consent of the prosecutor;

2. Consent of the accused; and

3.Notice to the offended party (Sec. 8).

Note:

If a case is provisionally dismissed, the failure to revive or reinstate the case within
the periods set bylaw will make the dismissal permanent.

What is the time bar-rule?

“The time-bar under Sec. 8 of Rule 117 is akin to a special procedural limitation
qualifying the right of the state to prosecute making the time-bar an essence of the given right
or as an inherent part thereof, so that the lapse of the time-bar operated to extinguish the right
of the state to prosecute the accused.”

“It is but a limitation of the right of the state to revive a criminal case against the
accused after the information had been filed but subsequently provisionally dismissed with
the express consent of the accused”

( People vs. Lacson, 2003)

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 TIME-BAR RULE

It provides that the provisional dismissal of a case shall become permanent without
the case having been revived in the following periods:

1. 1 year after issuance of the order of provisional dismissal – for offenses

punishable by imprisonment not exceeding 6 years or a fine of any amount, or both; and

2. 2 years after issuance of the order of provisional dismissal – with respect to

offenses punishable by imprisonment of more than 6 years (Sec. 8).

Section 9

Failure to move to quash or to allege any ground therefor. — The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to allege the same in
said motion, shall be deemed a waiver of any objections based on the grounds provided for in
paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

Effect o failure to file a motion to quash or to allege any Ground Therefor:

General Rule: It shall be deemed a waiver on the part of the accused

Exceptions: There is NO deemed waiver when the ground is

Lack of jurisdiction over the subject matter (sec. 3[a])

The information does not charge any offense (sec. 3[b])

The criminal liability has already been extinguished (sec. 3 [g])

Double jeopardy (sec. 3[i])

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