Section 14. Amendment or substitution.

— A complaint or
information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his plea. After
the plea and during the trial, a formal amendment may only be
made with leave of court and when it can be done without causing
prejudice to the rights of the accused. xxx (Rule 110, Revised Rules
of Criminal Procedure)

Kinds of Amendment:

1. BEFORE PLEA – covers both substantial and formal amendment,

WITHOUT leave of court.

2. AFTER PLEA – covers only formal amendment provided:

a) leave of court is obtained
b) such amendment is not prejudicial to the rights of the
accused.

EXCEPT when a fact supervenes which changes the nature of the

crime charged in the information or upgrades it to a higher crime, in
which case, there is a need for another arraignment of the accused
under the amended information.

PLEA
Formal Formal
Substantial
Without leave With leave
Not prejudicial

What kind of amendment of the complaint/information can

be made before arraignment?

As a rule, both formal and substantial amendments are allowed

before arraignment even without leave of court. By way of
exception, an amendment before plea which downgrades the nature
of the offense charged or excludes any accused from the complaint
or information, can be made only upon motion by the prosecutor,
with notice to the offended party and with leave of court. (Section
14, Rule 110, Rules of Criminal Procedure)

What kind of amendment of the complaint/information can

be made after arraignment?

After arraignment, only formal amendments may be made only with

leave of court and when it can be done without causing prejudice to
the rights of the accused.

Distinguish substantial from formal amendment.

A substantial amendment consists of the recital of facts constituting

the offense charged and determinative of the jurisdiction of the
court. All other matters are merely of form. (Ricarze v. Court of
Appeals, G.R. No.160451, February 9, 2007)

What are some examples of formal amendments?

The following have been held to be mere formal amendments:

1) new allegations which relate only to the range of the penalty that
the court might impose in the event of conviction;

2) an amendment which does not charge another offense different

or distinct from that charged in the original one;

3) additional allegations which do not alter the prosecution's theory

of the case so as to cause surprise to the accused and affect the
form of defense he has or will assume;

4) an amendment which does not adversely affect any substantial

right of the accused; and
5) an amendment that merely adds specifications to eliminate
vagueness in the information and not to introduce new and material
facts, and merely states with additional precision something which
is already contained in the original information and which adds
nothing essential for conviction for the crime charged. (Leviste vs.
Almeda, G.R. No. 182677, August3, 2010)

When are the rights of the accused prejudiced by an

amendment?

1. When a defense which he had under the original information

would no longer be available

2. When any evidence which he had under the original information

would no longer be available

3. When any evidence which he had under the original information

would not longer be applicable to the amended information.

What is the test whether the amendment is substantial or

merely formal?

The test as to whether a defendant is prejudiced by the amendment

is whether a defense under the information as it originally stood
would be available after the amendment is made, and whether any
evidence defendant might have would be equally applicable to the
information in the one form as in the other. An amendment to an
information which does not change the nature of the crime alleged
therein does not affect the essence of the offense or cause surprise
or deprive the accused of an opportunity to meet the new averment
had each been held to be one of form and not of
substance. (Ricarze v. Court of Appeals, ibid.)

According to the case of Ricarse, the test as to whether a defendant

is prejudiced by the amendment, is whether a defense under the
original information would be available after the amendment is
made. If the answer is yes, it is only a formal amendment that will
not prejudice the rights of the accused.

What are the distinctions between amendment and

substitution?

1. Amendment may involve either formal or substantial changes,

while substitution necessarily involves a substantial change.

2. Amendment before plea can be effected without leave of court,

but substitution is always done with leave of court since it involves
the dismissal of the original complaint or information.

3. Where the amendment is only as to form, there is no need for a

new preliminary investigation or plea; in substitution, another
preliminary investigation and plea is required.

4. An amended information refers to the same offense charged in

the original information or to an offense which necessarily includes
or is necessarily included in the original charge; hence substantial
amendments to the information after the plea has been taken
cannot be made over the objection of the accused, for if the original
information would be withdrawn, the accused could invoke double
jeopardy. Substitution requires or presupposes that the new
information involves different offense which does not include or is
not necessarily included in the original charge, hence the accused
cannot claim double jeopardy (Teehankee vs. Madayag, 207 SCRA
685)

Before arraignment, can amendment of the

complaint/information be allowed to cure any and all defects
thereof?

No. It must be clarified that not all defects in the information are
curable by amendment prior to entry of plea. An information which
is void ab initio cannot be amended to obviate a ground for quashal.
An amendment which operates to vest jurisdiction upon the trial
court is likewise impermissible. (Leviste vs. Almeda, G.R.No.
182677, August 3, 2010)

After the accused entered his plea, may the Information for
homicide be still amended to charge the more serious
offense of murder?

No, because such amendment upgrading the charge from homicide

to murder is a substantial amendment. The amendment of the
Information from homicide to murder is "one of substance with very
serious consequences. In keeping with Section 14, Rule 110 of the
Rules of Criminal Procedure, only formal amendment can be allowed
after arraignment but it is always upon leave of court and provided
no prejudice can be made on the rights of the accused. After the
accused is arraigned, substantial amendment is proscribed except if
the same is beneficial to the accused. (Fronda-Baggaov. People,
G.R. No. 151785, December 10, 2007)

The original Information alleged that on October 16, 1992,

petitioner DaniloBuhat, armed with a knife, unlawfully
attacked and killed one Ramon George Yu while the said two
unknown assailants held his arms, "using superior strength,
inflicting . . . mortal wounds which were . . . the direct . . .
cause of his death." In filing the information, the prosecutor
expressly designated it as one for homicide. After
arraignment, the prosecution moves to amend the original
Information by changing the express designation of the
crime charged from homicide to murder. Can this be
allowed?

Yes. The original information already contains the allegation that the
killing was done with the “use of superior strength”. This allegation
already qualified the killing as murder regardless of how such killing
is technically designated in the information filed by the public
prosecutor.
When the appellation of the crime charged as determined by the
public prosecutor does not exactly correspond to the actual crime
constituted by the criminal acts described in the information to have
been committed by the accused, what controls is the description of
the said criminal acts and not the technical name of the crime
supplied by the public prosecutor. In other words, the real nature of
the criminal charge is determined not from the caption or preamble
of the information nor from the specification of the provision of the
law alleged to have been violated, they being conclusions of law
which in no way affect the legal aspects of the information, but from
the actual recital of facts as alleged in the body of the information.

Under these circumstances, the amendment of the Information by

merely changing its express designation from homicide to murder is
only a formal amendment and no prejudice can be made against the
rights of the accused. (Buhat vs. Court of Appeals, G.R. No. 119601
December 17, 1996)

Is an additional allegation of habitual delinquency and

recidivism a substantial amendment?

No. These allegations only relate to the range of the imposable

penalty but not the nature of the offense.

Is an additional allegation of conspiracy a substantial

amendment?

Yes because it changes the theory of the defense. It makes the

accused liable not only for his own acts but also for those of his co-
conspirators. (Old J. Sabio answer)

The new answer is: No, it is not a substantial amendment in the

following example: X is charged with murder as principal. Later, the
complaint is amended to include two other persons who allegedly
conspired with X. Can X invoke double jeopardy on the ground that
the amendment is substantial? No. The amendment is merely a
formal amendment because it does not prejudice the rights of X,
who was charged as a principal to begin with.

Is a change in the items stolen by the accused a substantial

amendment?

Yes, because it affects the essence of the imputed crime and would
deprive the accused of the opportunity to meet all the allegations in
preparation of his defense.

Is a change in the nature of the offense due to supervening

event a substantial amendment?

No, it is merely a formal amendment.

Can the court order an amendment without a motion to

amend? Enumerate instances where the court can order an
amendment.

In criminal cases, if there is a motion to quash on the ground that

the information does not constitute an offense or is defective, the
court instead of dismissing it, will order the amendment. Only when
you fail to amend, will the court order the dismissal of the
case. (See Rule 117)

In a civil case, can a court order an amendment without a

motion to amend or notice to amend under Rule 10?

Yes.

1. If there is a motion for Bill of Particulars, instead of denying or

granting it the court can order an amendment.
2. If there is a motion to dismiss, the court can either grant or deny
the motion or order an amendment of the pleading (Sec. 3, Rule 16,
Rules of Court)

Section 3. Resolution of Motion. — After the hearing, the court

may dismiss the action or claim, deny the motion, or order the
amendment of the pleading.