Motion to Quash –Rule 117

MOTIONS IN GENERAL

MOTION - application for relief other than by a pleading.

KINDS OF MOTION

1. Litigated - with notice to adverse party and requires hearing;

2. Ex-parte - without notice and hearing

3. Special ( motion of course) - directed to the discretion of the court and usually involves an
investigation of the facts on which the application is predicated. E.g. motion to lift declaration of
default;

4. Motion of course - one which is entitled as a matter of right and not of discretion on the part
of the court and which requires no investigation of the truth of any allegation or suggestion on
which it is founded. E.g. motion for execution

EFFECT OF LACK OF NOTIOCE OF HEARING - motion is mere scrap of paper; no binding force and
effect upon the court unless otherwise waived.

3-day notice rule - every written motion required to be heard and the notice of hearing thereof
shall be served in a such a manner to ensure its receipt by the other party at least 3 days before
the date of hearing, unless the court for good cause sets the hearing on shorter notice.

MOTION TO QUASH INFORMATION - is the mode by which an accused assails the validity of a
criminal complaint or information filed against him for insufficiency on its face in point of law, or
for defects which are apparent in the face of the information.

- the right belongs only to the accused.

Time to move to quash. — At any time before entering his plea, the accused may move to quash
the complaint or information. (1)

EFFECT OF FAILURE TO QUASH before he pleads to the complaint or information, either

because he did not file a motion to quash or failed to allege the same in said motion, shall be
deemed a waiver of any objections based on the grounds provided for in paragraphs (a), (b), (g),
and (i) of section 3 of this Rule. (8)

Form and contents. — The motion to quash

a) shall be in writing,
b) signed by the accused or his counsel and

c) shall distinctly specify its factual and legal grounds. The court shall consider no ground
other than those stated in the motion, except lack of jurisdiction over the offense
charged. (2a)

Section 3. Grounds. — The accused may move to quash the complaint or information on any of
the following grounds:

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

- The test is whether the facts alleged, if hypothetically admitted, will establish the
essential elements of the crime as defined by law, w/o considering evidence aliunde. If it
 does the motion has to be denied. If it does not, the court may either dismiss the case or
require the complaint/info to be amended.

-defect must be evident on its face

Amendment of the complaint or information. — If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order
that an amendment be made. (Section 4)

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

-Thus, if the defect can be cured by amendment or if it is based on the ground that the
facts charged do not constitute an offense, the prosecution is given by the court the
opportunity to correct the defect by amendment. If the motion to quash is sustained, the court
may order that another complaint or information be filed, except when the information is
quashed on the ground of extinction of criminal liability or double jeopardy.

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

-when the issue of jurisdiction is raised, the court should resolve it before conducting
trial in order to avoid the court spending precious time and energy unnecessarily trying
the case and to spare the accused from the inconvenience, anxiety, expense and
embarrassment in undergoing trial which would possibly be annulled for want of
jurisdiction.

- court without jurisdiction can not render a valid judgment

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

-jurisdiction is acquired by arrest or voluntary appearance

- if illegally arrested, accused should move to quash the info on such ground along with
other grounds, otherwise if he allows himself to be arraigned, the illegality of arrest is
waived.

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

- the Prosecutor who signed the information must have territorial jurisdiction to conduct
PI of the offense

-Information must be approved by City/Provl/Regl Pros.

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

- complaint or info must substantially conform to the prescribed form under sec 6 Rule
110

-accused has right to be informed of the nature and cause of accusation against him.

NOTE: if the allegations are vague or broad, the remedy is not motion to quash but a
motion for bill of particulars.

(f) That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;
 -If the accused fails to object and goes to trial under the information which contains
more than one offense, the general rule is he waives the objection and he should be
sentenced for as many offenses as alleged in the information and proved during trial.

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

Criminal liability is totally extinguished in any of the ff:

i. death of convict
ii. service of sentence;

iii. amnesty which completely extinguishes the penalty and all its effects;

iv. absolute pardon;

v. prescription of the crime;

vi. prescription of the penalty;

vii. pardon by the offended party in private crimes prior to the filing of the
complaint.

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

Art 11 of RPC – justifying circumstance

Art. 12 RPC – exempting circumstance

(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated without
his express consent. (3a)

DOUBLE JEOPARDY (non bis in Idem or not twice for the same)

--res judicata in prison grey

Constitutional Basis:

Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act.

Section 7, Rule 117 of the Revised Rules on Criminal Procedure

SEC. 7.Former conviction or acquittal; double jeopardy. When an accused has

been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction,
upon a valid complaint or information or other formal charge sufficient in form
and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt
to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint
or information.
 However, the conviction of the accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense charged in the
former complaint or information under any of the following instances:

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

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

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

Finality-of-acquittal doctrine - a verdict of acquittal is immediately final and a reexamination of

the merits of such acquittal, even in the appellate courts, will put the accused in jeopardy for
the same offense.

-A re-examination of the merits of such acquittal even in the appellate courts will put the accused in
jeopardy for the same offense.

-The gov’t cannot appeal from an acquittal or for the purpose of increasing or modifying a
penalty even if the decision be not in accordance with law.

PURPOSES:

1. It prevents the State from using its criminal processes as an instrument of harassment to
wear out the accused by a multitude of cases with accumulated trials.
2. It also serves the additional purpose of precluding the State, following an acquittal, from
successively retrying the defendant in the hope of securing a conviction.

3. And finally, it prevents the State, following conviction, from retrying the defendant again
in the hope of securing a greater penalty

GENERAL RULE: - an acquittal is final and unappealable on the ground of double jeopardy,
whether it happens at the trial court level or before the Court of Appeals.

two recognized exceptions:

(1) Where there has been deprivation of due process and where there is a finding of a mistrial

-the cardinal precept is that where there is a violation of basic constitutional rights, courts are
ousted of their jurisdiction.

(2) Where there has been a grave abuse of discretion under exceptional circumstances

- a judgment rendered with grave abuse of discretion or without due process is void; it doesn’t
exist in legal contemplation and thus, cannot be the source of an acquittal. ( Villareal v Aliga, GR
166995, 1-13-14)

Requisites of DOUBLE JEOPARDY:

(1) A first jeopardy must have attached prior to the second

(2) The first jeopardy must have been validly terminated
 (3) The second jeopardy must be for the same offense charged in the first information or
is an attempt to commit the same or a frustration thereof.

In determining when the first/legal jeopardy may be raised to have attached, it is necessary to
prove the ff:

(1) Court of competent jurisdiction;

(2) Valid complaint or information;

(3) Arraignment;

(4) Valid plea;

(5) The defendant was acquitted or convicted or the case was dismissed or otherwise
terminated without the express consent of the accused.

1. COURT OF COMPETENT JURISDICTION

- a court w/o jurisdiction cannot render a valid judgment, hence a person charged before it
cannot plead double jeopardy when tried anew for the same offense by a competent court, as
the first prosecution never placed him in jeopardy.

--the military tribunal has no jurisdiction to try cases of civilians. ( Olaguer v Military
Commission, 150 SCRA 144

- a court-martial is a court, and the prosecution of an accused before it is a criminal, and not an
administrative case, and therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter would place the accused
in jeopardy. ( Garcia vs Executive Secretary, 677 SCRA 750)

2. VALID COMPLAINT OR INFORMATION

- a prosecution based on an invalid complaint or info cannot lead to a valid judgment

- The Court considered the complaint or information filed before Sandiganbayan which did not
allege that they committed the offense specified therein in relation to their office as insufficient.
Petitioners therefore were not placed in danger of being convicted wgen they entered their lea
of not guilty. ( Herrera v Sandiganbayan, GR 119660-61, 2-13-09)

3.VALID PLEA

- Before plea, accused had not been exposed to danger under the first indictment.

-It is the essence of a plea of guilty that the accused admits absolutely and unconditionally his
guilt and responsibility for the offense imputed to him. Hence, an accused may not foist a
conditional plea of guilty on the court by admitting his guilt provided that a certain penalty will
be meted unto him.

- A waiver of the constitutional right against double jeopardy must be clear, categorical,
knowing and intelligent. Corollary to this rule, the alleged conditions attached to an arraignment
must be unmistakable, express, informed and enlightened. Otherwise, the plea should be
deemed to be simple and unconditional.

4. TERMINATION OF THE CASE

CONVICTION – appealable within 15 days but becomes final if the convict starts serving his
sentence even before the expiration of this period.

ACQUITTAL – executory upon rendition and entitles the accused to immediate release.
 - A judgment of acquittal cannot be reconsidered because it places the accused under
double jeopardy ( generally)

DISMISSAL – its consequences may vary according to the nature of the dismissal and whether or
not it was expressly consented to by the defendant.

DISMISSAL OF THE FIRST CASE – presupposes a definite or unconditional dismissal which

terminates the case. And for the dismissal to be a bar under the jeopardy clause, it must have
the effect of acquittal.

General rule: dismissal with express consent will not bar another prosecution for the same
offense, as said consent is considered a waiver of his right against double jeopardy. The consent
to be effective must be express and excludes mere silence or failure of accused to object to the
dismissal.

When Dismissal even with express consent of accused will give rise to double jeopardy: ( when
dismissal amounts to acquittal)

a. If the same is based on insufficiency of evidence of the prosecution;

b. Or made on the basis of a demurrer to evidence;

c. If there is a violation of the right of the accused to a speedy trial

CRIMES COVERED: the second offense charged is

A) the same as the first, or

- a person acquitted w/ murder cannot be prosecuted again for the same murder;

B) is an attempt to commit the same or

C) a frustration thereof, or

D) that the second offense necessarily includes or ( mURDEr then Homicide)

E) is necessarily included in the offense or information ( slight physical injuries then for less
serious)

NOTE: If the first jeopardy was never terminated, the remand of the criminal case for further
hearing &/or trial before the lower courts amounts merely to continuation of the first jeopardy
and does not expose the accused to a second jeopardy.

WHEN THERE IS NO DOUBLE JEOPARDY:

(a) Doctrine of supervening event – the accused may be prosecuted for another offense
if a subsequent development changes the character of the first indictment under which
he may have already been charged or convicted

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

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

(c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1 (f) of Rule 116.
In any of the foregoing cases, where the accused satisfies or serves in whole or in part the
judgment, he shall be credited with the same in the event of conviction for the graver offense.
(7a)

OTHER INSTANCES WHEN THERE IS NO DOUBLE JEOPARDY

(d) when a single criminal act gives rise to 2 or more separate & distinct offenses

E.g. rape under Art. 266-A(1) of RPC & sexual abuse under sec 5(b) of RA 7610

(e) when one case is administrative, while the other is criminal ( Cayao-Lasam v
Ramolete, 54 SCRA 439)

(f) Preliminary investigation is not a trial to which DJ attaches

WHEN THERE IS DOUBLE JEOPARDY

1. An order granting a motion to quash on the ground that the offense charged has
prescribed is an adjudication on the merits and constitutes a bar to another prosecution
for the same offense on the ground of double jeopardy.
2. The effect of prosecuting first for the lesser offense where a larger offense has been
committed and could be prosecuted would be to split the larger offense into its lesser
parts, thus bringing the man into jeopardy for each os such parts. This is unthinkable
under a civilized system of criminal justice. The State in electing to prosecute the first
one waives, in legal effect all the others. ( PP vs Besa, 74 Phil 57)

3. Act violating law and ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act ( sec 21, Phil Constn)

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

eg. – a person charged under city ordinance for having installed a device in his ice plant
to lower his electric meter reading was dismissed on ground of prescription. A case for theft of
electric current under the RPC would constitute double jeopardy. (PP vs Relova, 148 SCRA 292)

4. DJ in quasi offenses - reckless imprudence under Art. 365 of RPC is a single quasi-offense
by itself and not merely a means to commit other crimes. Hence, conviction or acquittal
of such quasi-offense bars subsequent prosecution for the same quasi-offense regardless
of its various resulting acts.

- the law punishes the negligent or careless act and not the result thereof. The gravity of the
consequence is only taken into account to determine the penalty and it does not qualify the
substance of the offense. And as the careless act is single, whether the injurious result
should affect one person or several persons, the offense (criminal negligence) remains one
and the same, and cannot split into different crimes and prosecutions.

eg. Ivler convicted of RI resulting in slight physical injuries can no longer be prosecuted
for RI resulting in homicide and damage to property.

5. INSEPARABLE OFFENSES – where one offense is inseparable from another and proceeds
from the same act, they cannot be the subject of separate prosecutions.

E.g one convicted of physical injuries cannot be later prosecuted for direct assault
committed on the same occasion and against the same victim.

NOTE: The mere filing of 2 infos or complaints charging the same offense does not yet afford the
accused in those cases the occassion to complain that he is being placed in jeopardy twice for
the same offense, for the simple reason that the primary basis of the defense of DJ is that the
accused has already been convicted or acquitted in the 1st case or that the same has been
terminated or dismissed w/o his express consent. ( tangan v PP, 155 SCRA 435)

IDENTITY OF OFFENSE:

i. When the evidence to support a conviction for one offense would be

sufficient to warrant conviction for the other; or
ii. When the second offense is exactly the same as the first; or

iii. When the second offense is an attempt to commit or a frustration therof;

or

iv. When it necessarily includes or is necessarily included in the offense

charged in the first information.

 the offense charged necessarily includes the offense proved when some of the
essential elements or ingredients of the former, as alleged in the complaint or
information, constitute the latter.

 And an offense charged is necessarily included in the offense proved when the
essential ingredients of the former constitute or form a part of those constituting
the latter

NO “same offense” - if there is variance between the elements of the 2 offenses charged.

Order sustaining the motion to quash not a bar to another prosecution; exception. — An order
sustaining the motion to quash is not a bar to another prosecution for the same offense unless
the motion was based on the grounds specified in section 3 (g) and (i) of this Rule. (6a)

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

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

Section 5. Effect of sustaining the motion to quash. — If the motion to quash is sustained, the
court may order that another complaint or information be filed except as provided in section 6
of this rule. If the order is made, the accused, if in custody, shall not be discharged unless
admitted to bail. If no order is made or if having been made, no new information is filed within
the time specified in the order or within such further time as the court may allow for good
cause, the accused, if in custody, shall be discharged unless he is also in custody for another
charge. (5a)

REMEDY OF PROSECUTOR if court sustains the motion to quash :

1) Amend the info in order to correct the defects if the court makes an order to that effect;
( except of ground is g or h);
2) If prosec does not agree with the order of quashal, it may appeal the Order of dismissal
to the CA

REMEDY OF ACCUSED IF MOTION IS DENIED:

- The usual course to take is for the accused to proceed with the trial, and in case of
conviction, to appeal therefrom and assign as error the denial of the motion to quash.
- The order denying the motion is interlocutory and therefore not appealable nor can it be
the subject of a petition for certiorari
 - The petition for certiorari and prohibition may be availed of where the information or
complaint is patently defective or the offense charged therein has been indisputably
shown to have prescribed.

A Special Civil Action may lie against an order of denial a motion to quash in any of the ff
instances:

"a. To afford adequate protection to the constitutional rights of the accused (Hernandez vs.
Albano, et al., L-19272, January 25, 1967, 19 SCRA 95);
"b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs. Albano,
supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
"c. When there is a pre-judicial question which is sub judice (De Leon vs. Mabanag, 70 Phil.
202);
"d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67 Phil. 62);
"e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs. Rafferty,
33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
"f. When double jeopardy is clearly apparent (Sangalang vs. People and Avendia, 109 Phil.
1140);
"g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L-25795, October
29, 1966, 18 SCRA 616);
"h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CA-G.R. No.
4760, March 25, 1960);
"i. Where the charges are manifestly false and motivated by the lust for vengeance (Recto vs.
Castelo, 18 L.J. [1953], cited in Rañoa vs. Alvendia, CA-G.R. No. 30720-R, October 8, 1962; Cf,
Guingona, et al vs. City Fiscal, L-60033, April 4, 1984, 128 SCRA 577); and
"j. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied (Salonga vs. Paño, et al., L-59524, February 18, 1985, 134 SCRA 438).
"k. to avoid multiplicity of actions.

MOTION TO QUASH DEMURRER TO EVIDENCE

1. Filed before accused enters a plea 1. Filed after the prosec rests its case

2. Does not require prior leave of court 2.Requires prior leave of court

3. Grounds are different 3.Ground: insufficiency of evidence

4. The ground for a MQ is generally based on 4.based on matters outside of the complaint or
matters found on the face of the complaint or info such as the evidence or lack of it
information

5. When granted, dismissal of the case will not 5.an order granting a demurrer is a resolution
necessarily follow. Court may order the filing of the case on the merits and amounts to
of a new info. acquittal