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Rule 110 PROSECUTION of Offenses

1.  General Rule:  MTC and RTC courts gain jurisdiction over the offense upon the filing of complaint by a complainant or an information by the prosecuting officer

*  Court gains jurisdiction over the person of the accused upon arrest or surrender; such jurisdiction once gained cannot be lost even if accused escapes (Gimenez vs. Nazareno)

*  Jurisdiction of the court over the offense is determined at the time of the institution of the action and is retained even if the penalty for the offense is later lowered or raised (People vs. Lagon)

2.  Complaint – sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public official charged with the enforcement of the law violated

Information – accusation in writing charging a person with an offense, subscribed by the fiscal and filed with the court

3.    Complaint and Information distinguished:



A sworn statement

Need not be sworn to

Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated

Subscribed to by the fiscal

May be filed either with the court or in the fiscal’s office generally to commence the preliminary investigation of the charges made

Filed with the court

4.    Cases where civil courts of equal rank are vested with concurrent jurisdiction:

  1. Features stated in Art. 2, RPC

*  Cognizable by proper court in which charge is first filed

  1. Continuing crimes committed in different judicial regions
  2. Offenses wherein any of the essential elements were committed in different territorial jurisdictions
  3. Offenses committed aboard a train, vehicle, aircraft or vessel  (see R110, §15)

i.    Railroad, train, aircraft

(1)  Territory or municipality where vehicle passed

(2)  Place of departure

(3)  Place of arrival

ii.    Vessel

(1) First port of entry

(2) Thru which it passed during voyage

e.  Libel and written defamation

5.   Remedies of offended party when fiscal unreasonably refuses to file an information or include a person therein as an accused

  1. In case of grave abuse of discretion, action formandamus
  2. Lodge a new complaint against the offenders
  3. Take up matter with the Secretary of Justice
  4. Institute administrative charges against the erring fiscal
  5. File criminal charges under Art. 208, RPC (prosecution of offenses)
  6. File civil action under Art. 27, NCC for damages (PO refuses or neglects to perform official duty)
  7. Secure appointment of another fiscal
  8. Institute another criminal action if no double jeopardy is involved

6.  Writs of injunction or prohibition to restrain a criminal prosecution are not available, EXCEPT

  1. To afford adequate protection to constitutional rights of accused
  2. Necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions
  3. Pre-judicial question which is sub judice
  4. Acts of the officer are without or in excess of authority
  5. Prosecution is under an invalid law, ordinance or regulation
  6. Double jeopardy is clearly apparent
  7. Court has no jurisdiction over the case
  8. Case of persecution rather than prosecution
  9. Charges are manifestly false and motivated by lust for vengeance
  10. Clearly no prima faciecase against the accused and MTQ on that ground had been denied

7.    Institution of Criminal Actions:

a.    In RTC:

*  By filing a complaint with the appropriate officer for the purpose of conducting requisite preliminary investigation therein.

b.   In Municipal Trial Courts and Municipal Circuit Trial Courts:

*   By filing the complaint or information directly with said courts, or a complaint with the fiscal’s office

c.   In Metropolitan Trial Courts

*  By filing the complaint ONLY with the office of the fiscal

* In all 3 above cases, such institution shall interrupt the period of prescription of the offense charged (Rule 110, §1)

d. Offenses subject to summary procedure

[i.e. (1) violation of traffic laws; (2) violation of rental laws; (3) violation of municipal or city ordinances; and (4) criminal cases where the penalty does not exceed 6 months or fine of P1000 or both, irrespective of other imposable penalties and civil liabilities]

*  The complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation.

Zaldivia vs. Reyes – since a criminal case covered by the Rules of Summary Procedure shall be deemed commenced only when it is filed in court, then the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that.

Reodica vs. CA – [clarifies Zaldivia above] Under Art. 91 of the RPC, the period of prescription shall be interrupted by the filing of the complaint or information.  It does not distinguish whether the complaint is filed for preliminary examination or investigation only, or for an action on the merits.   Thus, the filing of the complaint even with the fiscal’s office should suspend the running of the Statute of Limitations. The ruling in Zaldivia is not applicable to all cases subject to the Rules on Summary Procedure, since that particular case involved a violation of an ordinance.  Therefore, the applicable law therein was not Art. 91 of the RPC, but Act No. 3326 (“An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide when Prescription Shall Begin to Run”),  §2 of which provides that period of prescription is suspended only when judicial proceedings are instituted against the guilty party.

8.  Contents of information

a.  Name of the accused

*  Information may be amended as to the name of the accused, but such amendment cannot be questioned for the first time on appeal (People vs. Guevarra)

*  Error of name of the offended party: if material to the case, it necessarily affects the identification of the act charged.  Conviction for robbery cannot be sustained if there is a variance between the allegation and the proof as to the ownership of the property stolen.

b.  Designation of offense by statute (or of section/subsection of statute violated)

*  Only one offense charged, EXCEPT where law prescribes a single punishment for various offenses.

*  If facts do not completely allege all the elements of the crime charged, the info may be quashed; however, the prosecution is allowed to amend the info to include the necessary facts (People vs. Purisima)

c.   Acts or omissions complained of constituting the offense

*  Information need only allege facts, not include all the evidence which may be used to prove such facts (Balitaan vs. CFI)

d.   Name of offended party

e.  Approximate time of commission

*  Approximation of time is sufficient; amendment as to time is only a formal amendment; no need to dismiss case (People vs. Molero)

* A significant discrepancy in the time alleged cannot be sustained since such would allow the prosecution to prove an offense distantly removed from the alleged date, thus substantially impairing the rights of the accused to be informed of the charges against him (People vs. Reyes)

f.    Place of commission

* Conviction may be had even if it appears that the crime was committed not at the place alleged, provided that the place of actual commission was within the court’s jurisdiction and accused was not surprised by the variance between the proof and the information

*  Qualifying and inherent aggravating circumstances need to be alleged as they are integral parts of the crime.  If proved, but not alleged, become only generic aggravating circumstances.

9.  Amendment of information and Substitution of information, distinguished



Involves either formal or substantial changes

Necessarily involves a substantial change

Without leave of court if before plea

Needs leave of court as original information has to be dismissed

Where only as to form, there is no need for another preliminary investigation and retaking of plea of accused

Another preliminary investigation is entailed and accused has to plead anew

Refers to the same offense charged or which necessarily includes or is necessarily included in original charges, hence, substantial amendments to info after plea taken cannot be made over objections of accused for if original info is withdrawn, accused could invoke double jeopardy

Requires or presupposes that new info involves a different offense which does not include or is not included in the original charge, hence, accused cannot claim double jeopardy

10. After plea, amendment only as to matters of form, provided

  1. Leave of court is obtained; and
  2. Amendment is not prejudicial to rights of accused

11. When amendment is only as to form

  1. Neither affects or alters nature of offense charged
  2. Charge does not deprive accused of a fair opportunity to present his defense
  3. Does not involve a change in basic theory of prosecution

12. Exceptions to rule on venue

  1. Felonies in Art. 2, RPC (cognizable by proper court in which charge is first filed)
  2. Continuing offenses
  3. Piracy which is triable anywhere
  4. Libel (residence; or where first published)
  5. In exceptional cases, to ensure fair trial and impartial inquiry

13.  Special cases (who may prosecute)

a.  Adultery and concubinage

*  Only offended spouse can be complainant

*  Both guilty parties must be included in complaint

b.   Crimes against chastity

*  With consent of the offended party, offended spouse, grandparents, guardian, or state as parens patriae, in that order

*  Offended party, even if minor, has right to initiate the prosecution of the case independently of parents, grandparents or guardian, unless she is incompetent/incapable on grounds other than minority.

*  If offended party who is a minor fails to file the complaint, her parents, grandparents or guardian may do so.

*  In crimes against chastity, the consent of the victim is a jurisdictional requirement–retraction renders the information void (People vs. Ocapan)

*  If complexed with a public crime, the provincial fiscal may sign the complaint on his own

c.   Defamation (consisting of imputation of offenses in [a] or [b])

*  Complainant must be offended party

*  The offended party may intervene in the prosecution of the criminal case because of her interest in it (Banal vs. Tadeo)

14. Procedure

  1. Complaint filed in MTC or info filed in RTC where an essential ingredient of the crime took place (territorial jurisdiction)
    1. Amendment as a matter of right before plea
    2. Amendment upon discretion of the court after plea

*  Inclusion of other accused is only a formal amendment which would not be prejudicial to the accused and should be allowed (People vs. CA)

d.   After plea and before judgment, if it appears there was a mistake in charging proper offense, court shall dismiss original info upon the filing of a corrected one, provided that the accused will not be placed in double jeopardy (substitution)

*  Fiscal determines direction of prosecution; complainant must ask fiscal if he wants to dismiss the case; the motion to dismiss must be addressed to the court which has discretion over the disposition of the case (Republic vs. Sunga)

* Objection to the amendment of an information or complaint must be raised at the time the amendment is made; otherwise, deemed to have consented thereto.

15. Remedies

a.   Motion to quash

*  May be filed after arraignment but before plea on the grounds provided by the rules (generally, a flaw in the info)

*  If duplicity of offense charged is not raised in trial through a motion to quash info, the right to question it is waived (People vs. Ocapan)

b.   Motion to dismiss

*  May be filed after plea but before judgment on most of  grounds for motion to quash

16.  Duplicity of Offense (in information or complaint)

*  Defined as the joinder of separate and distinct offenses in one and the same information/complaint

*  Remedy:  file a motion to quash; failure is equivalent to a waiver

*  Exception: when existing laws prescribe a single punishment (complex crimes)

Rule 111  Prosecution of Civil Action

1.   General Rule: The injured party may file a civil action independent of the criminal proceeding to recover damages from the offender.

*  Article 32 is a valid cause of a civil action for damages against public officers who impair the Constitutional rights of citizens (Aberca vs. Ver)

*  Even if the private prosecutor participates in the prosecution, if he is not given the chance to prove damages, the offended party is not barred from filing a separate civil action

2.   Civil action for recovery of civil liability impliedly instituted, EXCEPT

  1. Waiver
  2. Reservation of right to institute separate action
  3. Institution of civil action prior to criminal action

*  NOTE: Under SC Circular 57-97, all criminal actions for violations of BP Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized.

San Ildefonso Lines vs. CA – past pronouncements of the SC that the requirement in Rule 111 that a reservation be made prior to the institution of an independent civil action is an “unauthorized amendment” to substantive law is now no longer controlling.  Far from altering substantive rights, the primary purpose of the reservation requirement is to avoid multiplicity of suits, to prevent delays, to clear congested dockets, to simplify the work of the trial court, and in short, the attainment of justice with the least expense and vexation to parties-litigants.

3.   Civil action suspended when criminal action filed, EXCEPT

  1. Independent civil action (Arts. 32, 33, 34 and 2176 of NCC)
  2. Prejudicial civil action
  3. Civil case consolidated with criminal action
  4. Civil action not one intended to enforce civil liability arising from the offense (g., action for legal separation against a spouse who committed concubinage)

4.  Prejudicial question arises when

  1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action
  2. The resolution of such issue will determine whether the criminal action will proceed or not

*  Requisites for a prejudicial question:

  1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action: and
  2. The resolution of such issue determines whether or not the criminal action may proceed

* Petition for suspension of criminal action is to be filed at any time before prosecution rests.

5.  Remedies

a.   Reservation of right to institute separate civil proceedings to recover civil liability arising from crime

*  Must be made before prosecution presents evidence

*  Action instituted only after final judgment in criminal action

b.   Petition to suspend the criminal action

*  May be filed upon existence of a prejudicial question in a pending civil action

*  Filed at any time before the prosecution rests

6.   Extinction of penal action does not carry with it extinction of the civil unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist.

*  Final judgment in civil absolving defendant from civil liability not a bar to criminal action

7.    Filing fees:

  1. Actual or compensatory damages – filing fees not required
  2. Moral, temperate and exemplary – filing fees required
  3. If alleged, fees must be paid by offended party upon filing of complaint or information
    1. If not alleged, filing fees considered a first lien on the judgment

Rule 112  Preliminary Investigation

1.   Preliminary investigation – inquiry or proceeding to determine if there is sufficient ground to engender a well-founded belief that a crime cognizable by the RTC has been committed, and that the respondent is probably guilty thereof, and should be held for trial

*  A preliminary investigation is only necessary for an information to be filed with the RTC; complaints may be filed with the MTC without need of an information, which is merely recommendatory (Tandoc vs. Resultan)

*  Absence of a preliminary investigation is NOT a ground for a motion to quash the information; an information filed without a preliminary investigation is defective but not fatal; in its absence, the accused may ask for one; it is the fiscal’s refusal to conduct a preliminary investigation when the accused demands one which is a violation of the rights of the accused (Doromal vs. Sandiganbayan).  Court should not dismiss the info, but hold the case in abeyance and either: (1) conduct its own investigation; or (2) require the fiscal to hold a reinvestigation.

2.   GENERAL RULE:  The fiscal conducts the preliminary investigation before filing an information with the RTC, EXCEPT where the accused is lawfully arrested without a warrant and an inquest is conducted.

3.  Right to Preliminary Investigation

*  A personal right and may be waived

*  Waived by failure to invoke the right prior to or at least at the time of the plea

4.    Who conducts Preliminary Investigation

  1. Provincial or city fiscals and their assistants
  2. Judges of MTC and MCTC
  3. National and regional state prosecutors
  4. Such other officers as may be authorized by law
  5. Duly authorized legal officers of COMELEC
    1. The Ombudsman
    2. The PCGG, in cases of ill-gotten wealth

5.  Procedure

a.   If conducted prior to arrest

i.    Complainant files complaint with

(a)  Provincial or city fiscal

(b)  Regional or state prosecutor

(c)  MTC or MCTC judge, excluding MTC judge of Metro Manila or chartered cities

(d)  Other offices authorized by law

  1. Investigating officer either dismisses complaint or asks by subpoena complainant and respondent to submit affidavits and counter-affidavits
    1. If the investigating officer finds prima facieevidence, he prepares an information and a resolution

*  i.e., if fiscal finds reasonable ground to believe that a crime has been committed and accused is probably guilty thereof

*  Prima facie evidence is that evidence which, standing alone, unexplained and uncontradicted, would be enough to merit a conviction of the accused

iv.  Otherwise, he recommends the dismissal of the complaint

*  If the investigating officer is an MTC judge, and he finds that probable cause exists and that there is a need to place the accused under custody, then he may issue a warrant of arrest

*  Flores vs. Sumaling – What differentiates the present rule from the previous one is that while before, it was mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found probable cause, the rule now is that the investigating judge’s power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody “in order not to frustrate the ends of justice.”  It is therefore error for the investigating judge to order the issuance of a warrant of arrest solely on his finding of probable cause, without making any finding of a necessity to place the accused in immediate custody to prevent a frustration of justice.

  1. Investigating officer forwards records to the city fiscal or chief state prosecutor
    1. City fiscal or state prosecutor either dismisses the complaint or files the information in court

*  Decision prevails over decision of the MTC judge

vii. Records will not form records of the case proper

*  Court on its own or on motion may order production of record

b.   If conducted after warrantless arrest

  1. If accused waives Art. 125, RPC and asks for a preliminary investigation, with the assistance of counsel, then the procedure for one prior to arrest is followed
    1. Inquest conducted as follows

(a)  Fiscal determines the validity of the arrest

(b)  Fiscal determines existence of prima facie evidence based on the statements of the complainant, arresting officer and witnesses

(c)  Fiscal either dismisses the complaint and orders the immediate release of the accused, OR prepares and files an information

*  While fiscal has quasi-judicial discretion whether or not to file an information, once it is filed with the court, the court acquires jurisdiction giving it discretion over the disposition of the case and the Sec. of Justice should refrain from entertaining petitions for review or appeals from the decision of fiscal (Crespo vs. Mogul; Velasquez vs. Undersecretary of Justice)

NOTE: Information may be filed by offended party, peace officer or fiscal without preliminary investigation.

6.  Remedies

a.   Motion for preliminary investigation

*  Filed when accused is arrested without warrant

*  Must be with assistance of counsel and after waiving Art. 125, RPC

b.   Motion for preliminary investigation

*  Filed within 5 days after accused learns an information against him has been filed without a preliminary investigation

c.   Motion for re-investigation

d.  Appeal to DOJ

*  Filed upon denial of his motion for a preliminary investigation, on the ground that his rights to due process of law were violated, ousting the court of jurisdiction

e.  Petition for prohibition

*  Filed with appellate court to stop the criminal proceedings

*  Ordinarily, injunction will not lie but may be granted in certain cases

*  When prohibition proper to restrain criminal proceedings:

  1. When strong-arm tactics are used for vindictive purposes (Salonga vs. Cruz-Pano)
  2. When the accused is deprived of his rights
  3. When the statute on which the charge is based is null and void
  4. When it will aid the administration of justice (Tatad vs. Sandiganbayan)
  5. When multiplicity of suits will be avoided (Guingona vs. City Fiscal)

Rule 113  Arrest

1.  Arrest – taking a person into custody in order that he may be bound to answer for the commission of some offense, made by an actual restraint of the person or by his submission to custody

2.    General Rule: No person may be arrested without a warrant.

*  Not all persons detained are arrested; only those detained to answer for an offense.

*  “Invitations” are not arrests and are usually not unconstitutional, but in some cases may be taken as commands (Babst vs. NBI); however, the practice of issuing an “invitation” to a person who is investigated in connection with an offense he is suspected to have committed is considered as placing him under “custodial investigation.”  (RA 7438)

* Warrants of arrest remain valid until arrest is effected, or the warrant is lifted

* Arrest may be made at any time of the day or night

3.  Warrantless arrests by a peace officer or a private person

a.   When person to be arrested is committing, attempting or has committed an offense

b.  When an offense has just been committed and the person making the arrest has personal knowledge that the person to be arrested committed it

*  Warrantless arrest anytime for a continuing offense like rebellion, subversion (Umil vs. Ramos)

* The continuing crime, not the crime finally charged, needs only be the cause of the arrest (Umil vs. Ramos)

c.   When person to be arrested is an escaped detainee (either serving sentence or with case pending)

  1. When a person lawfully arrested escapes
  2. Bondsman, for purpose of surrendering the accused
  3. Accused attempts to leave country without court permission

4.  Procedure

a.   With warrant

  1. Complainant files application with affidavits attached
  2. Judge conducts ex partepreliminary examination to determine probable cause

*  In determining probable cause, judge must:

(1)  Personally examine witness

(2)  Witness must be under oath

(3)  Examination must be reduced to writing (Luna vs. Plaza)

*  In determining probable cause, the judge may rely on findings by responsible officer (Lim vs. Felix)

iii.   Judge issues warrant of arrest

*  If without preliminary examination, considered irregular (Bagcal vs. Villaraza)

iv. If peace officer is unable to serve warrant 10 days after issuance, he must file a report and explanation with judge within 10 days

v.  If warrant served

(1)  Person informed that he is being arrested

(2)  Informed of cause of his arrest

(3)  Officer may break door or window if admission to building is refused

(4) Person physically restrained

*  For private citizens making an arrest

*  May not do so except to do some service to humanity or justice

(5)  No violence or unnecessary force may be used

(6)  Officer may summon assistance

(7)  Person who escapes after arrest may be immediately pursued

vi.        Person arrested is brought to nearest police station or jail

b.   Without warrant:

  1. Person is arrested
    1. Person arrested may waive right to Art. 125, RPC and ask for preliminary investigation or inquest

*  Fiscal is not judicial authority contemplated under Art. 125 (Sayo vs. Chief of Police)

  1. Fiscal files info

5.    Requisites for a warrant of arrest:

  1. Probable cause
  2. Signed by judge
  3. Specifically naming or particularly and sufficiently describing person to be arrested

*  John Doe warrants are void for being general warrants (Pangandaman vs. Cesar)

6.  Remedies

a.   Petition for writ of habeas corpus

*  Filed with any court, to effect immediate release of the person detained

*  Filed when a person is being illegally detained (without judicial process), or was illegally arrested (void warrant or unlawful warrantless arrest, or warrantless arrest beyond period with no information filed)

*  Habeas corpus is not allowed when:

  1. The person is in custody of an officer under process of law, and
  2. The court had jurisdiction to issue the process (Luna vs. Plaza)

*  If an arrest is improper, the remedy is a motion for quashal of the warrant of arrest and/or a motion to quash the information, not habeas corpus (Ilagan vs. Enrile)

*  Habeas corpus is no longer available after an information has been filed, the information being the judicial process required by law (Ilagan vs. Enrile)

*  Habeas corpus is proper when a person is being restrained illegally, e.g., imprisoned past maximum penalty allowed by law (Gumabon vs. Director of Prisons)

b.   Quashal of warrant of arrest

*  Filed with court which issued the warrant of arrest when the warrant of arrest is fatally flawed

c.  Motion to quash information

*  Filed with court when information against the person arrested has been filed

*  Must be made in a “special appearance” before the court questioning only its lack of jurisdiction over the person of the accused

*  Otherwise, the voluntary appearance of the person arrested by filing a motion before the court would be deemed a submission to the authority of the court, thus granting it whatever jurisdiction it lacked over the person

*  Any irregularity in the arrest is cured when the petitioner submits himself to the jurisdiction of the court, e.g., by filing for bail (Bagcal vs. Villaraza)

7.   V.V. Mendoza, “Rights to Counsel in Custodial Investigation”

*  Evolution of rights of the accused under custodial investigation

  1. All involuntary confession were inadmissible; accused had to prove involuntariness
    1. Involuntary confessions were inadmissible only if they were false
    2. Revert to exclusionary rule:  any involuntary confession is inadmissible
      1. Miranda rule:  the accused must be informed of his rights
        1. To remain silent
        2. Against self-incrimination
        3. To counsel
        4. Definition of custodial investigation questioned
          1. It begins only after arrest
          2. Police investigations prior to arrest are not covered
          3. The rights may be waived, but the rights to be informed of these rights, e., to warning, may not be waived
          4. Warning must not only be said, officer must make sure the person arrested understands them specifically
          5. Present rules
            1. Voluntary confessions are admissible
            2. Test of voluntariness determined on a case-to-case basis
            3. Waiver of rights must not only be with counsel but must be in writing

*  Confessions made without assistance of counsel are inadmissible as evidence to incriminate the accused, but they may be used to impeach the credibility of the accused, or they may be treated as verbal admission of the accused through the testimony of the witnesses (People vs. Molas)

Rule 114  Bail

1.  Bail – security given for the release of a person in custody of law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the following conditions:

  1. Undertaking effective upon approval and remains in force at all stages until promulgation of judgment, unless sooner cancelled
  2. Accused shall appear before court when required
  3. Failure to appear despite notice to him or the bondsman will waive his right to be present and trial shall proceed in absentia
  4. Bondsman shall surrender accused for execution of judgment

*  Bail applies to all persons detained, not just to those charged with the offense (Herras vs. Teehankee)

*  Court has power to prohibit person out on bail from leaving the country (Manotoc, Jr. vs. CA)

*  Bail implies delivery of the accused to the sureties who, though not holding him prisoner, may seize him and imprison him until they can deliver him to court (US vs. Bonoan)

2.  General Rule: All persons are entitled to bail as a matter of right, except those charged with capital offenses.

*  Right to bail traditionally unavailable to military personnel facing court martial, who are not in the same class as civilians (Comendador vs. de Villa)

*  Bail should be available regardless of other circumstances or the merits of the case, if the health or the life of the detainee is in danger (Dela Rama vs. People’s Court)

*  Excessive bail is tantamount to denial of bail, which is unconstitutional (Dela Camara vs. Enage)

3.  When bail is a matter of right

*  Before or after conviction by MTC, MCTC, MJC

*  Before conviction by the RTC of an offense not punishable by death, reclusion perpetuaor life imprisonment

4.    When bail is discretionary (application filed with court where case is pending)

  1. Upon conviction by RTC of an offense not punishable by death, reclusion perpetuaor life imprisonment
  2. Provisional liberty under same circs. but during period to appeal subject to consent of bondsman
  3. In case he has applied for probation after final judgment, he may be allowed temporary liberty under his bail or recognizance

5.  Procedure

a.    Offense charged is not capital:

i.    Accused applies for bail

(1)  Where information against him was filed or where case is pending

(2)  Absent (1), in another branch of the same court within the province or city where he is held

(3)  If arrested in another province, city or municipality, file with the RTC

(4)  Absent (3), with the MTC

  1. Judge sets bail
    1. Accused may move to reduce bail, and hearing will be set
    2. Accused posts bail and deposits the same with the Municipal/City/Provincial Treasurer or, if cash, with the Collector of Internal Revenue
    3. Accused is released

b.   Offense charged is capital:

  1. Accused petitions for bail
  2. Judge sets hearing to determine whether evidence of guilt is strong

*  Ex-parte hearing on bail is arbitrary and unacceptable (Herras vs. Teehankee)

  1. Prosecution presents evidence
    1. Court may not force fiscal to produce evidence (Herras vs. Teehankee)
    2. If evidence is strong, bail is denied
      1. Otherwise, judge sets bail and procedure for non-capital offense is followed

*  In capital crimes, judge’s discretion is limited to determining strength of evidence and does not cover determining whether bail should be allowed (Herras vs. Teehankee)

* Evidence must be strong that the accused is guilty of the capital offense charged, not just of any offense (Bernardez vs. Valera)

6.    Bail bond –   an obligation under seal given by accused with one or more sureties and made payable to proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform

7.  Recognizance

  1. Obligation of record entered into before some court of magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial
  2. Does not require signature of accused for trial
  3. Does not require signature of accused to be valid

8.  Prosecution witnesses may be required to post bail to ensure their appearance at the trial, except:

  1. Substitution of info (see R110, §14)
  2. Court believes that material witness may not appear at the trial

9.  When bail required under RA 6036  (violation of ordinance, light felony, criminal offense – not higher that 6 month imprisonment and/or P2000 fine, or both)

  1. Caught in flagrante
  2. Confessed to commission of offense unless repudiated (force and intimidation)
  3. Previously escaped, evaded sentence or jumped bail
  4. Violation of Sec. 2 (fails to report to clerk of court periodically under his recognizance)
  5. Recidivist, habitual delinquent previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for 2 or more offenses to which it attaches a lighter penalty
  6. Committed offense while on parole or under conditional pardon
  7. Previously pardoned by municipal or city mayor for violation of ordinance for at least 2 times

10.  Instances when accused may be released on recognizance:

  1. Offense charged is a violation of an ordinance, a light felony or criminal offense the imposable penalty to which does not exceed 6 months and or P2000 fine
  2. Person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance
  3. Accused has applied for probation and before the same has been resolved, but NO BAIL was filed or accused is incapable of filing one
  4. Youthful offender held for physical and mental examination, trial or appeal, if unable to furnish bail

11. Cancellation of bail

a.   Upon application with the court and due notice to the fiscal

  1. Accused surrenders back to custody
    1. Accused dies

b.   Automatic cancellation

  1. Case is dismissed
    1. Accused is acquitted
    2. Accused is convicted and surrenders for execution of judgment

12. When bail cancelled or denied: after RTC imposes imprisonment exceeding 6 years, but not more than 20 years, and:

  1. Accused is a recidivist, quasi-recidivist, habitual delinquent or guilty of the aggravating circumstance of reiteration;
  2. Provisionally escaped, evaded sentence, violated provisions of bail;
  3. Committed offense while on probation, parole, or conditional pardon;
  4. Probability of flight; or
  5. Undue risk that during appeal, he may commit another crime

13. When bail is forfeited

a.   Accused fails to appear before court when required

*  30 days for bondsman to show cause why judgment should not be rendered against him

b.  Bondsman fails to produce him within 30 days

c.  Bondsman fails to satisfactorily explain to the court why accused did not appear when first required to do so

*  Sureties guarantee only appearance of the accused, not his conduct (US vs. Bonoan)

*  Sureties exonerated if appearance made impossible by an act of God, the obligee or the law (US vs. Bonoan)

14. Provisional forfeiture

  1. Within 30 days, produce the body or give reason for non-production AND
  2. Explain satisfactorily the absence of the accused when first required to appear

15. Remedies

  1. Application for bail, when bail can be availed of as a matter of right
  2. Petition for bail, when the offense charged is a capital offense

*  For judge to set hearing for the determination of strength of evidence of guilt

16.  Circumstances to be considered in fixing amount of bail:

  1. Financial ability of accused to give bail;
  2. Nature and circumstances of offense;
  3. Penalty of offense charged;
  4. Character and reputation of accused;
  5. Age and health of accused
  6. Weight of evidence against accused
  7. Probability of accused appearing for trial;
  8. Forfeiture of other bonds;
  9. Fact that accused was a fugitive from justice when arrested; and
  10. Pendency of other cases in which the accused is under bond

17.  Notes:

  1. Posting bail waives the right to question any irregularity attending the arrest of a person (Callanta vs. Villanueva).  However, this does not result in waiver of the inadmissibility of the articles seized incidentally to such illegal arrest.
  2. Accused waived the right to question any irregularity in the conduct of the preliminary investigation when he failed to do so before entering his plea (People vs. Dela Cerna)
  3. Accused out on bail may be re-arrested if he attempts to depart from the Philippines without prior court permission (warrantless arrest allowed).

Rule 115  Rights of Accused

1.  Right of the accused under the Rules

a.  To be presumed innocent until proven guilty beyond reasonable doubt

*  In an appeal from a conviction, the accused shall again be presumed innocent until and unless his conviction is affirmed (Castillo vs. Felix)

b.   To be informed of the nature and cause of charges

*  The right must be substantially complied with; arraignment and later proceedings must be in a language the accused understands (People vs. Crisologo)

c.   To be present at every stage of proceedings, subject to waiver by bail

*  If an accused escapes, he waives this right and merits a trial in absentia;  the accused forfeits his rights to be notified of proceedings in the future and to adduce evidence in his behalf (People vs. Salas)

  1. To testify as witness on his own behalf, subject to cross-examination on matters covered by direct examination; not to be prejudiced by his silence
  2. Not to be compelled to be a witness against himself
  3. To confront and examine the witnesses against him, including the right to use in evidence testimony of a witness
  4. Who is deceased, out of or cannot with due diligence be found in the RP
    1. Given in another proceeding
    2. With the same parties
    3. Same subject matter
    4. Opportunity to cross-examine

*  Prosecution has no privilege to withhold the identity of informers when such informer was crucial in the operation itself; failure to present the informer is a denial of the right to confront the witness which merits the reversal of the conviction (People vs. Bagano)

g.   To have compulsory process to secure witnesses and evidence in his behalf

h.   To have a speedy, impartial and public trial

*  Unreasonable postponements of trial amounts to a denial of the right to a speedy trial, entitling the accused to mandamus to compel dismissal of the case, or to habeas corpus if he is detained

i.    To have the right of appeal

2.  Rights of the accused under the Constitution

a.   To due process

b.   Against self-incrimination

*  Right is limited to testimonies; ocular inspection of the body may be allowed (Villaflor vs. Summers)

*  Being informed of rights means a meaningful transmission of information, without which confession made by the accused is inadmissible (People vs. Nicandro)

*  Confessions obtained through coercion are inadmissible (People vs. Opida)

*  Right against self-incrimination and to counsel do not apply during custodial investigation (People vs. Ayson)

*  During trial, the right against self-incrimination takes the following form:

  1. Accused may refuse to testify
  2. If he testifies, he may refuse to answer those questions which may incriminate him in ANOTHER offense

c.  Against double jeopardy

d.  To be heard by himself and counsel

3.  Double jeopardy

  1. First jeopardy must have attached prior to the first
  2. First jeopardy attached and terminated
  3. Valid complaint or information
    1. Competent court with jurisdiction
    2. Accused had pleaded
    3. Action ended in conviction, acquittal or termination without the consent of the accused

c.       Offense charged in later case is:

  1. Same as that in previous case
    1. Necessarily includes or is included in the previous case
    2. An attempt or frustration of the offense in previous case
      1. An offense lesser than that charged to which the accused pleaded guilty with the consent of the fiscal and the offended party

4.  Exceptions to double jeopardy

  1. The offense was made graver by supervening events
  2. The facts constituting the graver offense were only discovered after the filing of the earlier information

*  No double jeopardy if the new fact which justified the new charge arose only after arraignment and conviction (People vs. City Court)

*  No double jeopardy where the trial was a sham since there was no competent court (Galman vs. Sandiganbayan)

*  No double jeopardy if first case was dismissed with consent of the accused (Caes vs. IAC)

*  There is double jeopardy if a person is charged twice under different penal statutes for the same acts (People vs. Relova)

c.   Plea of guilty to a lesser offense without the consent of the fiscal and the offended party

5.  Remedies

  1. Motion to quash
  2. Motion to dismiss

*  Both filed on the ground of violation of accused’s rights, thereby ousting the court of jurisdiction

6.   NOTES:

*   Constitution, Art. III, Sec. 1

No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.

*   Constitution, Art. III, Sec. 14

  1. No person shall be held to answer for a criminal offense without due process of law.
  2. In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be informed of the nature and cause of the accusations against him, to have a speedy, impartial and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.

However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and that his failure to appear is unjustifiable.

*   Constitution, Art. III, Sec. 16

All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

*   Constitution, Art. III, Sec. 17

No person shall be compelled to be a witness against himself.

*   Constitution, Art. III, Sec. 21

No person shall be twice put in jeopardy of punishment for the same offense.

If an act is punished by a law or ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Rule 116  Arraignment and Plea

1.  Procedure

  1. Court informs accused of his right to counsel and asks him if he wants one
  2. Court appoints counsel de oficioif accused has none

*  If no such member of the available, any person who is a resident of the province, of good repute for probity and ability to defend accused

c.   Court gives counsel time to confer with accused at least an hour before arraignment

*  Period allowed for counsel de oficio to confer with accused must be substantially complied with; if not, case may be remanded for re-arraignment (People vs. Gonzaga)

  1. Accused given a copy of the information, which is read to him in a language he understands
  2. Accused is asked whether he pleads guilty or not guilty
  3. Accused files a motion to quash or makes plea
  4. Accused personally makes his plea
  5. Plea is entered into record
  6. If accused makes plea of not guilty, counsel has at least 2 days to prepare for trial

People vs. Agbayani – the right for 2 days to prepare must be expressly demanded.  Only when so demanded does denial thereof constitute reversible error and ground for new trial.  Further, such right may be waived, expressly or impliedly.

* NOTE, HOWEVER, under SC Circular 38-98 (implementing “Speedy Trial Act of 1997”), accused must be given at least 15 days to prepare for trial, which shall commence within 30 days from receipt of Pre-Trial Order.

j.    Case proceeds to pre-trial, trial or hearing, depending on the plea

*  Statement in the judgment that the accused was arraigned and pleaded is sufficient; the manner of statement of such fact is immaterial (People vs. Cariaga)

2.  Kinds of plea

  1. No plea – a plea of not guilty shall be entered
  2. Conditional plea of guilt – a plea of not guilty shall be entered
  3. Not guilty – case proceeds to trial or pre-trial
  4. Guilty to a lesser offense – if fiscal and offended party consents, conviction under offense charged for purposes of double jeopardy
  5. Info may be amended
    1. Case goes to trial
    2. Even if info is not amended, and even if lesser offense is not included in offense charged, court may still find the accused guilty of that lesser offense

e.   Guilty to a capital offense

*  Court conducts searching inquiry to determine if accused was aware of the charges, of his plea, and its consequences

*  Court requires prosecution to present evidence to prove guilt of accused and determine his degree of culpability, and accused may still establish presence of mitigating circumstances in his favor

f.    Guilty to a non-capital offense

*  Court receives evidence from the parties to determine penalty to impose

* Plea of guilty not necessarily followed by conviction.  Upon receipt of exculpatory evidence (if accused pleaded guilty), trial court should consider the plea withdrawn and in its place, order the plea of not guilty

* Plea of guilty waives only defects which may be taken advantage of by motion to quash or by plea in abatement; cannot cure jurisdictional defects.

3.  Effects

a.   Entry of plea will waive

  1. Right to question illegality of the arrest
  2. Right to question any irregularity in the preliminary investigation
  3. Right to file a motion to quash

b.   Improvident plea of guilty may be changed to not guilty any time before judgment is rendered

c.   A plea of not guilty may not be changed to guilty, as doing so would only spare the prosecution of presenting evidence and still result in the conviction of the accused.

4.  Remedies

a.   Motion for specification

*  May be filed any time before plea, even after a MTQ

*  Filed when the information is insufficient in form or is generally worded, that a Bill of Particulars is necessary to clarify the acts for which the accused is being charged

b.  Motion to quash

*  May be filed at anytime before plea is entered

*  Based on grounds provided by the rules

c.   Motion to suspend arraignment

*  Filed when the accused seems mentally unsound or if there is a prejudicial question in a pending civil case

d.   Motion to withdraw an improvident plea of guilt

*  May be filed at any time before judgment of conviction becomes final, when it can be shown that the accused was not aware of the significance of pleading guilty to the charges

Rule 117  Motion to Quash

1.     Motion to quash –   a hypothetical admission that even if all the facts alleged were true, the accused still cannot be convicted due to other reasons

2.  When to file Motion to Quash

General Rule:  Before entering plea; all grounds not raised deemed waived

Exception:  The following grounds may be used in MTQ even after plea

  1. No offense charged
  2. Lack of jurisdiction over the offense charged
  3. Extinction of the offense or of the penalty
  4. Double jeopardy

3.  Grounds

a.   Information does not conform to prescribed form

*  For the info to charge a complex crime, it is not necessary that it be defined by law, only that it alleges that one offense was necessary to commit the other (People vs. Alagao)

b.   Court has no jurisdiction

  1. No territorial jurisdiction
  2. No jurisdiction  over  offense  charged  may  be  raised  at  any  time; no waiver considered even upon failure to move to quash on such ground
  3. No jurisdiction over person of the accused

*  The court gained jurisdiction over the person of the accused when he voluntarily appeared for the pre-suspension hearing (Layosa vs. Rodriguez)

c.   Accused would be put in double jeopardy

*  Bars another prosecution

*  No waiver

*  No double jeopardy if first case was dismissed with the consent of the accused (Que vs. Cosico), unless ground for dismissal is: (a) denial of right to speedy trial; or (b) insufficiency of evidence.

*  If the first case was dismissed due to a deficient information, then there was no valid information and there could be no double jeopardy (Caniza vs. People)

*  Cudia vs CA – it should be the Provincial Prosecutor of Pampanga, not the City Prosecutor, who should prepare informations for offenses committed within Pampanga but outside Angeles City.  An information must be prepared and presented by the prosecuting attorney or someone authorized by law.  If not, the court does not acquire jurisdiction.  Although failure to file a motion to quash the information is a waiver of all objections to it insofar as formal objections to pleadings are concerned, questions relating to want of jurisdiction may be raised at any stage of the proceedings.  Moreover, since the complaint or information was insufficient because it was so defective in form or substance that conviction upon it could not have been sustained, its dismissal without the consent of the accused cannot be pleaded as prior jeopardy, and will not be a bar to a second prosecution.

d.   More than one offense was charged, EXCEPT where law prescribes single punishment for various offenses

e.   Facts alleged do not constitute an offense

*  May be raised at any time

*  No waiver

*  For charge to be complete, it is necessary to state that it was exempted from any amnesty existing at the time

f.    Criminal action or liability has been extinguished

g.   Information contains allegations which, if true, would be a legal excuse or justification

h.   Officer who filed the information had no authority

*  Presentation of evidence cannot cure an invalid information (People vs. Asuncion)

NOTE:  Court will consider no other grounds other than those raised, EXCEPT lack of jurisdiction over offense charged.

4.  Requisites of Double jeopardy

a.  Valid information or complaint, sufficient in form and substance

b.   Before court of competent jurisdiction

*  Doctrine of “Jurisdiction by Estoppel”: depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred on appeal, from assailing such jurisdiction, for the same ‘must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel’.  However, if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position — that the lower court had jurisdiction. Here, the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon.

c.   Accused had pleaded

d.   Conviction, acquittal, or dismissal or termination of case without consent of accused

e.   Bar to offense charged, attempt to commit the same or necessarily includes or is necessarily included

* Conviction for physical injuries through reckless imprudence constitutes double jeopardy to the charge of damage to property through reckless imprudence.

5.  Procedure

  1. MTQ filed
  2. If based on defect in info which can be cured, court shall order its amendment
  3. Quashing the info shall NOT be a bar to subsequent prosecution (accused has not pleaded yet), EXCEPT when the ground is:
    1. Double jeopardy OR
    2. Extinction of criminal liability

6.  Remedies

  1. Motion to dismiss – if certain grounds were not raised or denied in a MTQ
  2. Trial

*  If there was really no basis for the info, then such could be proved in the trial

*  Upon denial of a MTQ, the proper remedy is to go on trial and later to appeal, if necessary; mandamus or certiorari will only be granted if there is not other plain, simple and adequate remedy

7.  Failure to move to quash or to allege any ground therefor deemed a waiver of such grounds, except:

  1. Failure to charge an offense
  2. Lack of jurisdiction over the offense charged
  3. Extinction of the offense or of the penalty
  4. Double jeopardy

Rule 118  Pre-Trial

1.  Plea bargaining –   process whereby the accused and the prosecution in a criminal case work out a mutually satisfactory disposition of the case subject to court approval.  It usually involves the defendant’s pleading guilty to a lesser offense or to only some of the counts of a multi-count indictment in return for a lighter sentence than that for the greater charge.

*  Under “Speedy Trial Act of 1997”, in all criminal cases cognizable by the MTC, MCTC, MeTC, RTC and Sandiganbayan, pretrial is mandatory.

*  Under SC Circular 38-98, implementing the “Speedy Trial Act of 1997”, an accused may plea guilty to a lesser offense only if said offense is necessarily included in the offense charged.

2.  Stipulation of facts

*  Facts which both parties and respective counsels agree on as evidenced by their signatures; these facts need not be proved by evidence in trial

*  Stipulation is inadmissible if unsigned by either accused or counsel; a later memo of confirmation, signed only by counsel, cannot cure defect (Fule vs. CA)

3.  Pre-trial order – binds the parties, limits the trial to matters not yet disposed of, and controls the course of action during the trial

4.  Procedure

  1. Judge must calendar pre-trial
  2. Either party may waive the pre-trial
  3. If court appoints counsel de oficio, counsel has at least 2 days to prepare
  4. In the pre-trial conference
  5. Plea bargaining
  6. Stipulation of facts
  7. Marking of evidence (does not imply conceding to its admissibility or credibility)
  8. Waiver of objections to admissibility of evidence
  9. Other matters which will promote a fair and expeditious trial

e.   Judge issues pre-trial order

Rule 119  Trial

1.  In trial, the defense tries

  1. To assail the admissibility of evidence which prove the elements of the offense charged
  2. To assail the credibility of such evidence
  3. To prove another version, possibly admitting certain evidence of the prosecution and adding other evidence to cast reasonable doubt

*  Even in summary procedure, the judge cannot base his decision simply on affidavits; he must give the defendant the chance to cross-examine (Combate vs. San Jose)

2.  Procedure

a.   Parties notified of date of trial 2 days before trial date (R119, §1)

* HOWEVER, under SC Circular 38-98, accused must be given at least 15 days to prepare for trial, which shall commence within 30 days from receipt of Pre-Trial Order.

  1. Accused may move that his witnesses be examined
  2. Defense witnesses examined by any judge or lawyer
  3. Prosecution witnesses, if they would be unable to attend trial, may be examined by the judge handling the case
  4. Trial continues from day to day, unless postponed for a just cause
  5. Prosecution presents evidence

*  Presentation

*  Testimonies: direct examination

*  Cross-examination

*  Re-cross

*  Offer

  1. Accused may move for discharge
  2. Prosecution rests
  3. Defense may, with or without leave of court, file a demurrer to evidence
  4. Defense presents evidence
  5. Defense rests
  6. Prosecution presents rebuttal evidence
  7. Defense presents rebuttal evidence
  8. Trial is closed; case is submitted for judgment

3.  When mistake made in charging proper offense

  1. If Accused cannot be convicted of offense charged or offense necessarily included therein
  2. Accused detained, not discharged
  3. Original case dismissed upon filing of proper information

*  Example: Charged with theft.  At trial, appears that offense is estafa.  The prosecution can ask for the dismissal of the info in order to file a new one for estafa.  No Double Jeopardy because no valid info in the first case.

4.  Application for examination of witnesses for accused before trial

  1. Sick or infirm; unable to attend trial
  2. Resides more than 100 km. from means of trial; no means to attend

5.    Application (prosecution)

  1. Sick or infirm
  2. Has to leave the RP with indefinite date of returning

6.  Requisites for postponement due to absence of a witness

  1. Witness is really material and appears to the court to be so
  2. Party who applies for postponement has not been guilty of neglect
  3. Witness can be had at the time to which the trial has been deferred
  4. No similar evidence could be obtained

7.  Requisites to discharge of an accused as State Witness

  1. Testimony of accused absolutely needed
  2. No other direct evidence available EXCEPT his testimony
  3. Testimony can be corroborated on material points
  4. Accused does not appear to be most guilty
  5. Accused has never been convicted of offense involving moral turpitude

*  Discharge of accused, when not all the requisites were met, cannot be revoked as long as he testified according to what was expected of him (People vs. Aninon)

8.  Remedies

a.   Motion for separate trials

*  Filed by the fiscal to try several accused separately

*  Granted at the court’s discretion

*  May also be ordered by the court motu proprio

b.   Motion to consolidate

*  Upon the court’s discretion, separate charges may be tried in one single case if the offenses charged arise form the same facts or form part of a series of similar offenses

*  Court allowed consolidation of rape cases substantially committed in the same manner (People vs. David)

c.   Motion for continuance – filed to postpone trial for just cause

d.   Motion to exclude public

*  Excluding parties, counsels and court personnel

*  May also be ordered by court motu proprio

e.  Motion for discharge

*  Filed before the prosecution rests

*  Hearing to determine existence of requisites for discharge

*  Prosecution will present evidence and the sworn statement of the proposed state witness

*  Evidence adduced in this said hearing automatically form part of trial; however, if court denies motion for discharge, his sworn statement shall be inadmissible in evidence.

*  Discharge of the accused has the effect of acquittal, unless accused fails or refuses to testify against his co-accused in accordance with his statement (which formed the basis for his discharge)

f.    Demurrer to evidence

*  May be made after the prosecution rests its case

*  If the court finds the prosecution’s evidence insufficient, the case will be dismissed

*  Otherwise, if demurrer denied

  1. If the demurrer was made with leave of court, defense gets to present evidence
  2. If the demurrer was made without leave of court, defense is deemed to have waived the right to present evidence and the case is submitted for judgment

*  Case may also be dismissed motu proprio

g.   Motion to reopen

*  Filed after the case is submitted for judgment but before judgment is actually rendered

*  To allow either side to present additional evidence, if such could not be found before

*  Granted on discretion of the judge

*  The accused cannot move to reopen the case to allow him to adduce evidence in his behalf when his failure to adduce them during the trial was his own fault (People vs. Cruz)

Rule 120  Judgment

1.  Judgment – adjudication by the court that the accused is guilty or not guilty of the offense charged, and the imposition of the proper penalty and civil liability provided by law on the accused

2.  General Rule:  If the accused is found not guilty, he will be acquitted and the acquittal immediately becomes final and executory.  If the accused is found guilty, penalty and civil liability will be imposed on him.

3.  Accused may be convicted of

  1. The offense charged
  2. A lesser offense necessarily included in the offense charged

*  Accused cannot be convicted for an offense graver than that charged (People vs. Guevarra)

4.  Contents

  1. Written in official language
  2. Personally prepared and signed by the judge
  3. Contains facts proved
  4. Contains law upon which judgment is based

*  In case of conviction, judgment must state:

  1. Legal qualification of offense and aggravating and mitigating circumstances
  2. Level of participation
  3. Penalty imposed
  4. Civil liability for damages, unless right to separate civil action has been reserved

*  In case of acquittal, judgment must state:

  1. Civil liability for damages, unless acts alleged clearly did not exist
  2. Basis of liability

5.  Procedure

  1. Judge reads judgment in presence of accused
  2. If judgment is of acquittal
  3. It becomes final and executory
  4. It bars subsequent prosecution for the same offense

c.   If judgment is of conviction, remedy is to file:

  1. Motion for reconsideration
  2. Motion for new trial
  3. Notice of appeal

*  Or else, judgment becomes final and is entered in the book of Judgments

6.    When judgment in a criminal case becomes final:

  1. After lapse of period for perfecting an appeal; or
  2. When sentence partially or totally satisfied or served; or
  3. Accused has expressly waived in writing his right to appeal, EXCEPT in cases of automatic review where death penalty is imposed
  4. Accused has applied for probation

7.   Only a judgment in conviction can be modified or set aside

  1. Before judgment had been final (otherwise double jeopardy);
  2. Before appeal had been perfected; or
  3. To correct clerical errors in the judgment

8.  Remedies

a.   Appeal

*  Filed within 15 days of promulgation of judgment

*  Period is interrupted by filing of a motion for new trial or reconsideration

*  On motion of accused or at its own instance with consent of the accused

b.   Motion for reconsideration

*  Filed when there are errors of law or fact in the judgment

*  Shall require no further proceedings

*  Notice should be given to the fiscal

c.  Motion for new trial

*  Notice should be given to the fiscal

*  Filed on the following grounds:

  1. Error of law or irregularities have been made during trial which are prejudicial to the substantial rights of the accused

ii. New evidence has been found which could not have been found before and which could change the judgment

9.  Procedure for new trial

  1. Hearing shall be set and held
  2. All evidence not alleged to be in error shall stand
  3. New evidence will be introduced
  4. Old judgment may be set aside and a new one rendered

10. Notes:

Suspension of sentence for youthful offenders – after conviction, minor is committed to custody and care of DSWD or any training institution until reaches 21 years of age, or a shorter period

Probation –   disposition under which a defendant after conviction and sentences, is released subject to conditions imposed by the court and to the supervision of a probation officer

Parole – the conditional release of an offender from a penal or correctional institution after he has served the minimum period of his prison sentence under the continued custody of the state and under conditions that permit his reincarceration if he violated the conditions of his release

Rule 121  New Trial or Reconsideration

1.  Reopening of the case

  1. Made by the court before judgment is rendered in the exercise of sound discretion
  2. Does not require consent of accused
  3. May be made at the instance of either party who can thereafter present additional evidence

2.  Motion for new trial

  1. Filed after judgment is rendered but before the finality thereof
  2. At the instance or with the consent of the accused
  3. The prosecution can move only for the reconsideration of the judgment but cannot present additional evidence

3.    Motion for New Trial is denied if:

  1. Only impeaching evidence is sought to be introduced as the court had already passed upon issue of credibility
  2. Only corroborative evidence is offered
  3. Prisoner admits commission of crime with which accused is charged (facility with which such confession can be obtained and fabricated)
  4. Alleged new evidence is inherently improbable and could easily be concocted
  5. Alleged new evidence consists of recantations of prosecution witness, due to unreliability of such recantations, EXCEPT if no other evidence to sustain conviction aside from recanted testimony

4.  New Trial vs. Reconsideration

*  Motion for recon is based on the grounds of errors of law in the judgment is court is not asked to reopen the case for further proceedings, but to reconsider its findings or conclusions of law and make them conformable to the law applicable to the case on the judgment the court has to render anew.

5.   New Trial vs. Modification of Judgment

*  In New Trial, irregularities are expunged from the record and/or new evidence is introduced.  In modification of judgment, no new hearings or proceedings of any kind or change in the record or evidence.  A simple modification is made on the basis of what is on the record.

6.   New Trial vs. Reopening of the Case

*  New trial presupposes that existence of a judgment to be set aside upon the granting of a new trial

*  In reopening, no judgment has yet been rendered, although the hearing may have already been closed

7.  Motion for Reconsideration

*  Grounds are errors of law or fact in judgment, which require no further proceedings.

8.  Effects of Granting Motion for New Trial or Reconsideration

a.   Based on error of law or irregularities during trial:

*  Proceedings and evidence not affected by irregularities stand, and those affected are set aside.  Court may allow introduction of new evidence

b.   Based on newly discovered evidence:

* Evidence already taken shall stand; new evidence taken with the old

Rule 122  Appeal

1.  Procedure

a.   Filed with RTC, if original case was with MTC

*  Notice served to lower court and to adverse party

b.   Filed with the CA or SC, if original case was with RTC

i.    With CA: notice of appeal with court, and with copy on adverse party

*  If CA is of opinion that penalty should be reclusion perpetua or higher, it shall render judgment imposing said penalty, but refrain from entering judgment and then certify the case and the entire record thereof to the SC for review (R124, §13)

*  CA may reverse, affirm, or modify judgment of RTC, or remand case for new trial or re-trial, or dismiss the case

*  If RTC decided case in appellate jurisdiction:  Petition for Review

ii.    With SC: notice of appeal where penalty imposed is life imprisonment, or lesser penalty involving offenses committed on the same occasion, or arising out of same occurrence where graver penalty of death is available but life imprisonment is imposed; all other cases, by petition for review on certiorari

*  If death penalty, automatic review

iii.   Withdrawal of appeal

*  May be made at any time before judgment on the appeal is rendered

*  Lower court judgment becomes final

*  Case remanded for execution of judgment

* Once notice of appeal is filed, cannot be validly withdrawn to give way for a Motion for Recon or a Motion for New Trial, since the filing of the notice perfected the appeal, and the trial court loses its power to modify or set aside the judgment.  The only valid withdrawal of an appeal is where the accused decides to serve his sentence.

2.  Effect of appeal by any of several accused

  1. Shall not affect those who did not appeal, EXCEPT if favorable and applicable to them
  2. Civil appeal by offended party shall not affect criminal aspect of judgment
  3. Execution of judgment on appellant will be stayed upon perfection of appeal

3.  When appeal by prosecution from order of dismissal of criminal case will not result in double jeopardy

  1. Dismissal made upon motion or with express consent of the accused
  2. Dismissal  is  not  an  acquittal nor based upon consideration of the evidence or merits of the case
  3. Question to be passed upon by the appellate court is purely legal so that if the dismissal is found incorrect, the case has to be remanded to the court of origin to determine the guilt or innocence of the accused

4.  When serving sentence, remedy is to petition for habeas corpus

  1. Filed when the law under which the accused was convicted is repealed or declared unconstitutional
  2. When a later judgment is rendered acquitting others for similar circumstances

*  Otherwise, equal protection is violated

  1. When penalty is lowered and convict has already served more than the maximum period of the new penalty

*  Habeas corpus is available when a person is imprisoned beyond the maximum penalty imposed by law (Gumabon vs. Dir. of Prisons)

NOTE: When dismissal is capricious, certiorari lies and no double jeopardy since validity and not correctness of dismissal is being challenged.

Rule 126  Search and Seizure

1.   Search warrant – an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court

*  Cannot be issued to look for evidence (Uy Khetin vs. Villareal)

*  Seizing objects to be used as evidence is equivalent to forcing one to be a witness against himself (Uy Khetin vs. Villareal)

*  For a warrant to be valid, it must meet the requirements set by law (Burgos vs. Chief of Staff)

*  Tapping conversations is equivalent to a search and seizure (US vs. Katz)

2. General Rule: No search or seizure can be conducted unless it is authorized by a search warrant. Evidence gathered from an illegal search and seizure is inadmissible.

*  Warrantless searches are illegal, unreasonable and unconstitutional (Alvarez vs. CFI)

*  It is not the police action which is impermissible, but the procedure and unreasonable character by which it is exercised (Guazon vs. de Villa)

*  Court gains jurisdiction over items seized by a valid search warrant and returned to it, and such is not an unconstitutional deprivation of property (Villanueva vs. Querubin)

*  Evidence from an illegal search may be used as evidence, if no objection is raised (Stonehill vs. Diokno)

*  Right against unreasonable search and seizure may be waived, but for the waiver to be effective:

  1. The right must exist
  2. Person must be aware of the right
  3. Person clearly shows the intent to relinquish such right

*  No waiver against unreasonable search and seizure when one compromises the criminal proceedings (Alvarez vs. CFI)

*  There is no waiver of right when evidence of coercion is present (Roan vs. Gonzales)

3.  Requisites of a valid search warrant

a.   Issued upon probable cause

*  Probable cause – such facts and circumstances which would lead a reasonably prudent man to believe that a crime has been committed and the thing to be searched for and seized is in the place to be searched

b.   Probable cause is personally determined by the issuing judge

*  Hence, signed by him

*  By any RTC, to be served anywhere in the country, for an offense which occurred anywhere in the country (Malaloan vs. CA)

c.   Issuing judge personally examined, in the form of searching questions, the appellant and his witness and took down their written depositions

d.   Search warrant particularly describes or identifies the property to be seized

*  Property which men may lawfully possess may not be the object of a search warrant (Uy Khetin vs. Villareal)

*  Nature of goods may allow description to be general or not too technical (Alvarez vs. CFI)

e.   Particularly describes the place to be searched

f.    It shall issue only for one specific offense

*  Otherwise, cannot be said to have issued upon probable cause (Asian Surety vs. Herrera)

*  Absence of specific offense makes impossible determination of probable cause (Stonehill vs. Diokno)

g.   Was not issued for more than 10 days prior to a search made pursuant thereto (search warrant becomes void after 10 days)

h.   Indicates time, if to be served at night

4.  When a search warrant may be said to particularly describe the thing to be seized

  1. Description is as specific as circumstances allow
  2. Expresses a conclusion of fact by which the warrant officer may be guided
  3. Things described are limited to those which bear a direct relation to the offense for which the warrant is issued

5.  Procedure

a.   Complainant files application, attaches affidavits

*  Oath requires that the person taking it personally knows the facts of the case (People vs. Sy Juco)

*  Affidavits submitted must state that the premises is occupied by the person against whom the warrant is issued, that the objects to be seized are fruits or means of committing a crime, and that they belong to the same person, thus, not affecting third persons (People vs. Sy Juco)

*  When complainant’s knowledge is hearsay, affidavits of witnesses are necessary (Alvarez vs. CFI)

b.   Judge conducts ex parte preliminary examination of complainant and witnesses under oath to determine probable cause

*  Judge must ask probing questions, not just repeat facts in the affidavit (Roan vs. Gonzales)

c.   Judge issues search warrant good for 10 days

d.   Peace officer in presence of occupant, members of the family OR 2 witnesses of sufficient age and discretion residing in the same locality

*  Search may last for more than a day as long as it is part of the same search for the same purpose and of the same place (Uy Khetin vs. Villareal)

e.   Peace officer leaves receipt with occupant at place searched

f.    Peace officer files return of search warrant and inventory, and surrenders items seized to receiving court (not necessarily court which issued the warrant)

*  Items seized illegally must remain in custodia legis pending resolution of the case (Roan vs. Gonzales)

6.  Remedies from an unlawful search

  1. MTQ the warrant
  2. Motion to suppress as evidence the objects illegally taken
  3. Return of property illegally seized

7.  When a search may be validly conducted without a warrant

  1. Without consent of person searched
  2. When the search is incident to a lawful arrest
  3. Personal knowledge of the arresting person (Posadas vs. CA)
  4. Limited to:

(1)  Immediate time of arrest

(2)  Immediate vicinity of the arrest

(3)  Weapons and things which may be used as proof of offense charged (Nolasco vs. Pano)

iii.   Subject in an offense which is mala prohibita cannot be summarily seized (Roan vs. Gonzales)

iv.  May extend beyond arrestee to include premises and surrounding under his immediate control

  1. Border searches (customs, mail and airport)
  2. Vessels and aircrafts for violation of Tariff and Customs Code, EXCEPT dwelling houses
  3. Plain view
  4. Moving vehicle
  5. Hot pursuit
  6. Stop-and-frisk, reasonable check-points
  7. Private searches with no state action (People vs. Marti)
  8. Inspection of building and premises for enforcement of fire, sanitary and building regulations

8.  Person making the arrest may take from the arrestee

  1. Properties used in the commission of the crime
  2. Fruits or proceeds thereof
  3. Property which may furnish the arrestee with a weapon against the arresting person
  4. Property which may be used as evidence at the trial

9.   NOTES:

*   Constitution, Art. III, Sec. 2

The right of the people to be secure in their persons, papers, houses and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

*   Constitution, Art. III, Sec. 3

  1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
  2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in the proceeding.

Rule 127  Provisional Remedies in Criminal Cases

1.   Attachment as provisional remedy in criminal cases

  1. Accused is about to abscond from RP
  2. 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, or any officer of a corporation, or an attorney, factor, broker, agent or clerk in a fiduciary capacity, in willful violation of duty
  3. Accused has concealed, removed or disposed of his property, or is about to do so
  4. Accused resides outside the RP


Remedial Law (Criminal Procedure) Memory Aid

Ateneo Central Bar Operations 2001



Criminal Procedure Memory Aid – Annex A


Salient changes in the Revised Rules on Criminal Procedure

Rule 110   Prosecution of Offenses

  1. The institution of all criminal actions, including cases governed by the Rule on Summary Procedure, shall now be the same.
    1. Preliminary investigation is now required for an offense punishable by imprisonment of at least 4 years, 2 months and 1 day.

* Except lawful warrantless arrests provided for under Section 7.

* Thus, preliminary investigation is required for all offenses cognizable by the RTC and for some cases cognizable by the MTC.

3.   The institution of the criminal action shall interrupt the running of the prescriptive period of the offense except for offenses punishable by special laws.

*  This is in accordance with the ruling in Zaldivia vs. Reyes, which stated that the Rules of Court cannot amend special laws, and under Act no. 3326**, the prescriptive period for violation of special laws and municipal ordinances was interrupted only upon the filing of the complaint or information in court.

  1. Qualifying and aggravating circumstances is now required to be alleged in the complaint or information.

*  The failure to specifically allege either circumstance, even if proved, cannot be taken into account.

  1. Rape is removed from the list of private offenses since it is now classified as a crime against persons under R.A. 8353.
  2. Any amendment before plea, which
    1. Downgrades the nature of the offense charged in the complaint or information OR
    2. Excludes any accused from the complaint or information

*  can only be made upon motion by the prosecutor, with

  1. Notice to the offended party AND

ii.   With leave of court

*  The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party.

*  This amendment is intended to prevent the prosecution from abusing the process of amendment before plea by dropping any of the accused from the information or reducing the offense charged, whether the accused had been arraigned or not and whether it was due to a reinvestigation of the fiscal or a review by the Secretary of Justice (Crespo vs. Mogul).

Rule 111  Prosecution of Civil Action

1.   Only the civil liability arising from the offense charged is deemed instituted (not merely“impliedly”) with the criminal unless the offended party:

  1. Waives the civil action
  2. Reserves his right to institute it separately OR
  3. Institutes the civil action prior to the criminal action.

2.   The independent civil actions under Articles 32, 33, 34 and 2176 are no longer deemed or impliedly instituted with the criminal action or considered as waived

*        Even if there is no reservation.

*        They may proceed independently of the criminal action and shall require only a preponderance of evidence.

3.   The reservation applies only to the civil liability arising from the offense charged.

*        The employer may not longer be held civilly liable for quasi-delict in the criminal action as ruled in Maniago vs. Court of Appeals since quasi-delict is not deemed instituted with the criminal.

*        If at all, the only civil liability of the employer in the criminal action would be hissubsidiary liability under the Revised Penal Code.

4.   The present rule has also done away with third-party complaints and counterclaims in criminal actions.  These claims must have to be ventilated in a separate civil action.

*        Thus, even if a counterclaim or cross-claim of the accused arises out of or is connected with the transaction or occurrence which is the subject matter of the offended party’s claim, it is NOT compulsory.

5.   The extinction of the civil liability refers exclusively to civil liability arising from crime;

*        Whereas, the civil liability for the same act considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.

*        Both actions may proceed separately, the only limitation is the prohibition to recover damages twice based on the same act or omission.

6.   Except for civil actions provided for in Articles 32, 33, 34 and 2176 of the Civil Code, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action.

*        The action contemplated herein is a civil action arising from a crime if reserved or filed separately and if a criminal case is filed, it has to be suspended.

*        During the pendency of the criminal action, the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall not run.

7.   The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict.

*        This rule would only apply if any of the civil actions under section 3 is consolidated with the criminal action, otherwise, since the actions under section 3 are purely civil actions, the effects of death of a party are to be governed by the Rules on Civil Procedure.

8.   A prejudicial question is limited to a “previously instituted civil action” in order to minimize possible abuses by the subsequent filing of a civil action as an after thought for the purpose of suspending the criminal action.

Rule 112  Preliminary Investigation

  1. Preliminary investigation now includes offenses punishable by at least 4 years, 2 months and 1 day, even if the same is cognizable by the Municipal Trial Court.
  2. The complaint should be accompanied by affidavits of the complainant and his witnesses as well as other supporting papers relied upon by the complainant to establish probable cause.
  3. A motion to dismiss is now a prohibited pleading during preliminary investigation.
  4. The respondent is now required to submit counter-affidavits and other supporting documents relied upon by him for his defense.
  5. The respondent now has the right to examine the evidence submitted by the complainant of which he may not have been furnished and to obtain copies thereof at his expense.

*        If the records are voluminous, the complainant may be required to identify those which he intends to present to support his charge and these shall be made available for examination, copying or photographing by respondent at his expense.

  1. The prosecutor is required to resolve the complaint based on the evidence presented by the complainant, in the event that:
    1. The respondent cannot be subpoenaed OR
    2. The respondent, if subpoenaed, does not submit a counter-affidavit within the 10-day period.
    3. The clarificatory hearing shall only to limited to facts and issues which the investigating officer believes need to be clarified.

*        The clarificatory hearing shall be held within 10 days from:

  1. The submission of the counter-affidavit and other documents, OR
  2. The expiration of the period for their submission.

*        The clarificatory hearing shall be terminated within 5 days.

  1. After the clarificatory hearing:

*        The investigation shall be deemed concluded AND

*        The hearing officer shall determine whether there is sufficient ground to hold the respondent for trial upon the evidence adduced, within 10 days.

  1. Whether the recommendation of the investigating officer is to file or dismiss the case, he shall, within 5 days from his resolution, forward the records to:
    1. The provincial or city prosecutor or chief state prosecutor
    2. The ombudsman or his deputy, for offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction

*        Who shall taken appropriate action within 10 days from receipt and immediately inform the parties of said action.

  1. A party has the right to appeal to the Secretary of Justice and require that the parties be notified of the recommendation of the action to be taken therefrom.
  2. The judge must determine the existence of probable cause within 10 days from the filing of the information.

* If the accused has already been arrested, the judge must determine within 10 days the existence of probable cause and issue an order of commitment.

* The judge may disregard the prosecutor’s report and require the submission of additional evidence to determine the existence of provable case.  If he still finds no probable cause, he shall dismiss the case.

  1. Two types of offenses may be filed in the Municipal Trial Court for preliminary investigation:
    1. A case is cognizable by the RTC may be filed with the MTC for preliminary investigation.
    2. Even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.

*        The MTC is authorized in either case to issue a warrant of arrest if there is necessity of placing the respondent under immediate custody, in order not to frustrate the ends of justice.

  1. Outline on Issuance of Warrants of Arrest by Municipal Trial Judge
    1. During preliminary investigation

*  Searching questions and answers is mandatory.

  1. In exercise of its original jurisdiction, distinguish:
    1. Cases which require Preliminary Investigation even if it falls within its original jurisdiction

* After searching questions and answers, determine probable cause and necessity of placing accused in custody in order not to frustrate the ends of justice.

  1. Cases investigated by MTC but remanded by the prosecutor

*  The necessity rule inapplicable

iii.  No warrants:

(1)   If one already issued OR

(2)   The complaint or information filed under Section 7 (order of detention must be issued) OR

(3)   Offenses punishable by fine.

  1. Cases which do not require preliminary investigation
    1. Evaluate evidence OR

ii.   Conduct searching questions or answers or require additional evidence.

  1. No warrants
    1. If the judge is satisfied that there is no necessity for placing the accused under custody (issues summons instead)

ii.   Cases under the Revised Rules on Summary Procedure (no warrants except for failure to appear)

iii.  Rule on necessity

*        It is only in the issuance of warrants of arrest during preliminary investigation and in cases which do not require preliminary investigation, that the Municipal Trial Judge is called upon to apply the principle of necessity.  The principle does not apply to cases remanded by the Prosecutor.

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

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

  1. Before the filing of a complaint or information, the person arrested without a warrant may ask for a preliminary investigation by a proper officer, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code.

*  The waiver may be made only in the presence of his counsel pursuant to R.A. no. 7438.

*  In case the case has been filed in court without a preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense.

*  The request for preliminary investigation must be made before plea, otherwise the right to ask for a preliminary investigation shall be deemed waived.

  1. The court must evaluate the resolution of the investigating prosecutor and the supporting evidence adduced during the preliminary investigation, and such evidence must be included in filing the information.
  2. Issuance of warrants of arrest by the MTC for actions filed in the exercise of its original jurisdiction provides for two distinct situations:  Case may be filed
    1. Directly in the MTC OR
    2. By the prosecutor in Metro Manila or other chartered cities.
    3. If complaint is filed with the prosecutor for offenses which do not require a preliminary investigation, the procedure is as follows:
      1. The complaint shall state the known address of the respondent
      2. Accompanied by:
        1. Affidavits of the complainant and his witness AND
        2. Other supporting documents relied upon by the complainant to establish probable cause
        3. Affidavits must be sworn before any prosecutor, state prosecutor or government official authorized to administer oath, or a notary public (in their absence or unavailability)
        4. The prosecutor,  al., must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.
        5. The prosecutor shall take appropriate action based on the affidavits and other supporting documents submitted by the complainant within 10 days from its filing.

*        He may either dismiss the case or file it in court

  1. If complaint is filed directly with the MTC for an offense punishable by less than 4 years, 6 months and 1 day, the procedure is similar to (18).

*        The judge should then personally examine in writing and under oath the complainant.

  1. No warrant of arrest shall issue for cases covered by the Revised Rules on Summary Procedure.

Rule 113  Arrest

  1. Instances of valid warrantless arrests:
    1. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
    2. When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; AND
    3. When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
    4. 1(b) removed the requirement that an offense must have in fact been committed and clarified that probable cause to believe based on personal knowledge of “facts and circumstances” that the person to be arrested has committed it would be sufficient to justify a warrantless arrest for an offense that has just been committed.
    5. Indubitable existence of a crime is not necessary to justify a warrantless arrest and that ‘personal knowledge of facts’ in arrests without warrant must be based uponprobable cause,which means an actual belief or reasonable grounds of suspicion.

* The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested.

* A reasonable suspicion therefore must be founded on probable cause, coupled “with good faith on the part of the peace officers making the arrest.”

Rule 114  Bail

  1. Bail is a matter of right
    1. Before or after conviction by the MTC AND
    2. Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment
    3. Bail is a matter of discretion after conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment.
    4. Photos taken ‘recently’ means photos taken within the last six months.
    5. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court.

* However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Æ   This provision modified the ruling in Obosa vs. Court of Appeals in the sense that except for decisions which changed the nature of an offense from bailable to non-bailable cases, the trial court may still act on the application of bail even if a notice of appeal have been filed.

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

5.   Bail may be filed with:

  1. The court where the case is pending OR
  2. Another judge of the same court within the province or city

*  In the absence or unavailability of the judge thereof.

6.   When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time.

7.   An application for bail by the accused shall NOT be considered as a waiver of his right to challenge the legality of his arrest or the absence of a preliminary investigation.

*  Provided such objections are raised before plea.

Rule 116  Arraignment and Plea

  1. When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him.

*        This refers to a situation where an accused pleads guilty but invokes the mitigating circumstance of incomplete self-defense under Article 13, paragraph 1 of the Revised Penal Code as amended.

Æ   If the accused, after being allowed to present evidence, however adduces proof, not only to establish incomplete self-defense, but that he acted with complete legal justification, his earlier plea of guilty shall be deemed withdrawn and a plea of not guilty shall be entered for him.

  1. While R.A. No. 8493 or the Speedy Trial Act provides that the accused shall be arraigned within 30 days from the time a court acquires jurisdiction over his person, Rule 116, §1(e) provides for a shorter time within which an accused who is under preventive detention should be arraigned.

* Where an accused is detained, his case should be raffled within 3 days from the filing of the information or complaint against him, and the judge to whom his case is raffled shall have him arraigned within 10 days from receipt by the judge of the records of the case.

* The pre-trial conference shall be held within 10 days after the arraignment.

  1. The consent of boththe prosecutor and the offended party is required before an accused may be allowed by the court to plead guilty to a lesser offense.

*        The conviction for the lower offense would not give rise to double jeopardy if the plead of guilty for the lower offense was without the consent of the offended party.

  1. The presence of the offended party is now required at the arraignment and also to discuss the matter of accused’s civil liability.

*        In case the offended party fails to appear despite due notice, the trial court may allow the accused to plead guilty to a lower offense with solely the conformity of the trial prosecutor.

  1. The arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused.

* Unless a shorter period is provided by special law or Supreme Court circular.

* The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.

  1. Certain laws and SC Circulars provide for a shorter time within which the accused should be arraigned:
    1. Republic Act no. 4908

*  In criminal cases where the complainant is about to depart form the Philippines with no definite date of return, the accused should be arraigned without delay and his trial should commence within 3 days from the arraignment and that no postponement of the initial hearing should be granted except on the ground of illness on the part of the accused or other grounds beyond the control of the court.

  1. Republic Act no. 7610 or the Child Abuse Act

*  The trial of cases falling under said law shall be commenced within 3 days from arraignment.

  1. Dangerous Drugs Law
  2. Cases falling under the SC Admin Order No. 104-96, e.,heinous crimes, violations of the Intellectual Property Rights Law

*  These cases must be tried continuously until terminated within 60 days from commencement of the trial and to be decided within 30 days from the submission of the case.

  1. A plea of guilty to a lesser offense may be allowed only if the lesser offense is necessarily included in the offense charged.

*  Consent of the prosecutor and offended party must be obtained.

  1. A counsel de oficio who is appointed to defend the accused at the arraignment is given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.

Rule 117  Motion to Quash

  1. Grounds for motion to quash a complaint or information:
    1. The facts charged do not constitute an offense
    2. The court has no jurisdiction over the offense charged
    3. The court has no jurisdiction over the person of the accused
    4. The officer who filed the information had no authority to do so
    5. It does not conform substantially to the prescribed form
    6. More than one offense is charged

*  Except when a single punishment for various offenses is prescribed by law.

  1. The criminal action or liability has been extinguished
  2. It contains averments which, if true, would constitute a legal excuse or justification AND
  3. 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.
  4. Conviction of an 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 the following instances:
    1. The graver 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 of the offended party except as provided in §1(f) of Rule 116.
    4. A case may not be provisionally dismissed without:
      1. The express consent of the accused AND
      2. Notice to the offended party
      3. The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years shall become final after 1 year from the issuance of the order without the case being revived.
      4. The provisional dismissal of offenses punishable by imprisonment exceeding 6 years shall become permanent 2 years from the issuance of the order without the case having been revived.

Rule 118  Pre-Trial

1.  In all criminal cases cognizable by the (1) Sandiganbayan, (2) Regional Trial Court, (3) Metropolitan Trial Courts, (4) Municipal Trial Court in Cities, (5) Municipal Trial Court and (6) Municipal Circuit Trial Court

*  The court shall order a pre-trial conference (this must be held within 30 days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court)

2.   The following shall be considered during the pre-trial conference:

  1. Plea bargaining
  2. Stipulation of facts
  3. Marking for identification of evidence of the parties
  4. Waiver of objections to admissibility of evidence
  5. Modification of the order of trial if the accused admits the charge but interposes a lawful defense; AND
  6. Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case

3.   All agreements or admissions made or entered during the pre-trial conference shall be:

  1. Reduced to writing and
  2. Signed by the accused and counsel

* Otherwise, they cannot be used against the accused.

* The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.

4.   If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation

*  The court may impose proper sanction or penalties.

Rule 119  Trial

1.   After a plea of not guilty is entered

*  The accused shall have at least 15 days to prepare for trial

2.   The trial shall commence within 30 days from receipt of the pre-trial order.

3.   Other laws, rules and regulations prescribe speedy trial for a shorter period for other offenses:

  1. Criminal cases covered by the Rule on Summary Procedure or where the penalty prescribed by law does not exceed 6 months imprisonment, or a fine of P1,000 or both, irrespective of other imposable penalties

*  Governed by Rule 123

  1. A. No. 4908, An Act Requiring Judges of Courts to Speedily Try Criminal Cases Wherein the Offended Party is a Person About to Depart from the Philippines with No Definite Date of Return

*  Requires such cases to take precedence over all other cases before our courts except election and habeas corpus cases

*  The trial in these cases shall commence within 3 days from the date the accused is arraigned and no postponement of the initial hearing shall be granted except on the ground of illness on the part of the accused, or other grounds beyond the control of the accused

  1. Speedy Trial of Child Abuse cases

*  The trial of child abuse cases shall take precedence over all other cases before our courts except election and habeas corpus cases

*  The trial in these cases shall commence within 3 days from the date the accused is arraigned and no postponement of the initial hearing shall be granted except on account of the illness of the accused or other grounds beyond his control (Sec. 21, Rules and Regulations on the Reporting and Investigation of Child Abuse cases issued pursuant to Sec. 32 of R.A. No. 1610, The Child Abuse Act)

  1. Violations of the Dangerous Drugs Law
  2. Under Administrative Order No. 104-96

4.   Trial once commenced

*  Shall continue from day to day as far as practicable until terminated

*  May be postponed for a reasonable period of time for good cause

5.   After consultation with the prosecutor and defense counsel

*  The court shall set the case for continuous trial on a weekly or other short term trial calendar at the earliest possible time so as to ensure speedy trial

6.   In no case shall the entire trial period exceed 180 days from the first day of trial, except as otherwise authorized by the Supreme Court.

7.   The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial.

8.   The following periods of delay shall be excluded in computing the time within which trial must commence:

a.   Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following:

  1. Delay resulting from an examination of the physical and mental condition of the accused;
  2. Delay resulting from proceedings with respect to other criminal charges against the accused;
  3. Delay resulting from extraordinary remedies against interlocutory orders;
  4. Delay resulting from pre-trial proceedings; provided, that the delay does not exceed 30 days;
  5. Delay resulting from order of inhibition, or proceedings relating to change of venue of cases or transfer from other courts;
  6. Delay resulting from a finding of the existence of a prejudicial question; and
  7. Delay reasonably attributable to any period, not to exceed 30 days, during which any proceeding concerning the accused is actually under advisement.

b.   Any period of delay resulting from the absence or unavailability of an essential witness. (An essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence.)

  1. Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial.
  2. If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense

*  Any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge

  1. A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction; or, as to whom the time for trial has not run and no motion for separate trial has been granted.
  2. Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial.

9.   The following factors, among others, shall be considered by a court in determining whether to grant continuance under section 3(f) of this Rule.

  1. 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
  2. Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein

10.       No continuance under section 3(f) of this Rule shall be granted because of

  1. Congestion of the court’s calendar or
  2. Lack of diligent preparation or
  3. Failure to obtain available witnesses on the part of the prosecutor

11. The general rule is that motions for postponement are granted only upon meritorious grounds and no party has the right to assume that his motion will be granted. The grant or denial of a motion for postponement is addressed to the sound discretion of the court. Unless grave abuse of discretion is shown, such discretion will not be interfered with either by mandamus or appeal.

12. If the accused is to be tried again pursuant to an order for a new trial

*  The trial shall commence within 30 days from notice of the order (provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend it but not to exceed 180 days from notice of said order for a new trial

13. Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998

*  The time limit with respect to the period from arraignment to trial imposed by said provision shall be 180 days. For the second twelve-month period, the time limit shall be 120 days, and for the third twelve-month period, the time limit shall be 80 days.

14. If the public attorney assigned to defend a person charged with a crime knows that the latter is preventively detained, either because he

  1. Is charged with a bailable crime but has no means to post bail, or
  2. Is charged with a non-bailable crime, or
  3. Is serving a term of imprisonment in any penal institution

*  It shall be his duty to do the following:

  1. Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial.
  2. Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney.
  3. Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial.
  4. When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made available accordingly.

15. In any case in which private counsel for the accused, the public attorney, or the prosecutor:

  1. Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial;
  2. Files a motion solely for delay which he knows is totally frivolous and without merit;
  3. Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material tot he granting of a continuance; or
  4. Willfully fails to proceed to trial without justification consistent with the provisions hereof

*  The court may punish such counsel, attorney, or prosecutor, as follows:

  1. By imposing on a counsel privately retained in connection with the defense of an accused, a fine not exceeding P20,000.
  2. By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding P5,000; and
  3. By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding 30 days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these Rules.

16. 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

17. 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.

18. The dismissal shall be subject to the rules on double jeopardy.

19. No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 14(2) , Article III, of the 1987 Constitution.

20. After the prosecution rests its case

*  The court may dismiss the action on the ground of insufficiency of evidence

  1. On its own initiative after giving the prosecution the opportunity to be heard or
  2. Upon demurrer to evidence filed by the accused with or without leave of court

21. If the court denies the demurrer to evidence filed with leave of court

*  The accused may adduce evidence in his defense

22. When the demurrer to evidence is filed without leave of court

*  The accused waive the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution

23. The motion for leave of court to file demurrer to evidence

*  Shall specifically state its grounds and shall be filed within a non-extendible period of 5 days after the prosecution rests its case

*  Prosecution may oppose the motion within a non-extendible period of 5 days from its receipt

24. If leave of court is granted

*  The accused shall file the demurrer to evidence within a non-extendible period of 10 days from notice

*  Prosecution may oppose the demurrer to evidence within a similar period from its receipt

25. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself

*  Shall not be reviewable by appeal or by certiorari before judgment

26. The present rule liberally deviates from the rigid structures of Rule 119 of the 1985 Rules on Criminal Procedure denying the accused the chance to present evidence by considering a defendant’s motion to dismiss a waiver of his right to present evidence.

27. The current rule allows the accused in a criminal case to present evidence even after a motion to dismiss provided the demurrer was made within the express consent of the court.

28. At any time before finality of the judgment of conviction

*  The judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice

*  The proceedings shall be terminated within 30 days from the order granting it.

Rule 120  Judgment

1.   Judgment

*  Adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any

*  Must

  1. Be written in the official language
  2. Personally and directly prepared by the judge and signed by him and
  3. Contain clearly and distinctly a statement of the facts and the law upon which it is based

2.   If the judgment is of conviction

*  It shall state

  1. The legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission
  2. The participation of the accused in the offense, whether as principal, accomplice, or accessory
  3. The penalty imposed upon the accused and
  4. The civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived

3.   In case the judgment is of acquittal

*        It shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt ( in either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist)

4.   The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered.

5.   If the conviction is for a light offense

*  The judgment may be pronounced in the presence of his counsel or representative

6.   When the judge is absent or outside the province or city

*  The judgment may be promulgated by the clerk of court

7.   If the accused is confined or detained in another province or city

*  The judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment

8.   The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.

9.   The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision.

10. If the accused was tried in absentia because he

  1. Jumped bail or
  2. Escaped from prison

*  The notice to him shall be served at his last known address.

11. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice

*  The promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel

12. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall

  1. Lose the remedies available in these Rules against the judgment and
  2. The court shall order his arrest

13. However, within 15 days from promulgation of judgment

*  The accused may surrender and file a motion for leave of court to avail of these remedies

*  He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within 15 days from notice

14. Under the former rule, even if the accused fails to appear without justifiable cause, he shall be allowed to appeal within 15 days from notice of the decision to him or his counsel.

15. Under the new rule, if the judgment is of conviction and the failure of the accused to appear was without justifiable cause, he shall lose not only his right to appeal but also other legal remedies against the judgment as well and the court shall order his arrest.

Rule 124  Procedure in the Court of Appeals

1.   The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed cases

*  Shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provisions of this Rule

2.   The provisions of Rule 47 of the Rules of Court (Annulment of Judgments of Final Judgment and Resolutions) are no longer applicable in criminal cases. The appropriate remedy for lack of jurisdiction or extrinsic fraud being either:

  1. Certiorari under Rule 65 or
  2. Habeas corpusunder Rule 102

Rule 126  Search and Seizure

1.   An application for search warrant shall be filed with the following:

  1. Any court within whose territorial jurisdiction a crime was committed.
  2. For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

2.   If the criminal action has already been filed

*  The application shall only be made in the court where the criminal action is pending

3.   Section 2, Rule 126 is new. It fixes the venue in the filing of applications for the issuance of a search warrant.

*  Section 2 modifies the Malaloan guidelines (Malaloan vs. CA) which allow any judge to issue a search warrant prior to the filing of a criminal action, and even if one had already been filed, any judge for compelling reasons may still issue a search warrant.

4.   The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

5.   10 days after issuance of the search warrant

*        The issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made

6.   If the return has been made

*        The judge shall

  1. Ascertain whether section 11 of this Rule has been complied with and
  2. Require that the property seized be delivered to him

7.   The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

*  A violation of this section shall constitute contempt of court.

8.   A motion to quash a search warrant and/or to suppress evidence obtained thereby

*  May be filed in and acted upon only by the court where the action has been instituted

9.   If no criminal action has been instituted

*  The motion may be filed in and resolved by the court that issued the search warrant (if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court

10. Section 14 is intended to resolve what is perceived as conflicting decisions on where to file a motion to quash a search warrant or to suppress evidence seized by virtue thereof.

* The following pages are culled from Justice Oscar Herrera’s book on the relevant amendments in the Revised Rules of Criminal Procedure and from Justice Jose Feria’s article in the Lawyer’s Review (February, 2001) on the Notable Amendments in Revised Rules of Criminal Procedure.

** An Act To Establish Periods of Prescription for Violations Penalized By Special Laws and Municipal Ordinances and to Provide When Prescription Shall Begin To Run.


Remedial Law (Criminal Procedure)

Memory Aid – Annex A

Ateneo Central Bar Operations