SEC 21 : RIGHT AGAINST DOUBLE JEOPARDY

 DOUBLE JEOPARDY; DEFINITION

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.

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.

 RULE ON DOUBLE JEOPARDY

 Jeopardy is the peril in which a person is placed when he is regularly charged with a crime before a tribunal
properly organized and competent to try him

 The rule on double jeopardy means that when a person is charged with an offense and the case is terminate either by
conviction or acquittal, or in any other manner without the consent of the accused, the latter cannot again be charged
with the same or identical offense

 2 KINDS OF JEOPARDY

1. That no person shall be put twice in jeopardy for the same offense

2. 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

 REQUISITES FOR THE ACCUSED TO RAISE THE DEFENSE OF DOUBLE JEOPARDY?

1. A first jeopardy must have validly attached prior to the second

2. The first jeopardy must have been validly terminated

 3. The second jeopardy must be for the same offense or the second offense includes or is necessarily included in the
offense charged in the first information or is an attempt to commit the offense or a frustration thereof

 REQUISITES FOR THE FIRST JEOPARDY TO ATTACH?

1. A valid complaint or information

2. Court of competent jurisdiction

3. Arraignment

4. Plea

5. The defendant is acquitted, convicted, or the case was dismissed or terminated without his express consent

NOTE: The judgment should not only be final and executory but also be promulgated before there could be a valid jeopardy.

 EXCEPTIONS TO THE RIGHT AGAINST DOUBLE JEOPARDY

1. When the trial court acted with grave abuse of discretion amounting to lack or excess of jurisdiction.

2. The accused was not acquitted nor was there a valid and legal dismissal or termination of the case.

3. Dismissal of the case was during the preliminary investigation.

4. It does not apply to administrative cases.

5. Dismissal or termination of the case was with the express consent of the accused.

NOTE: When the dismissal is made at the instance of the accused, there is no double jeopardy.

> GR: Double jeopardy is not available when the case is dismissed other than on the merits or other than
by acquittal or conviction upon motion of the accused personally, or through counsel, since such dismissal is
regarded as with express consent of the accused, who is therefore deemed to have waived the right to plea
double jeopardy.

> XPNs:

1. Dismissal based on insufficiency of evidence.

2. Dismissal because of denial of accused’s right to speedy trial

 3. Accused is discharged to be a State witness

6. When the case was provisionally dismissed.

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

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

9. The plea of guilty to a lesser offense was made without the consent of the prosecutor and of the offended party except
as otherwise provided in Sec. 1(f) of Rule 116.

 FOR PURPOSES OF DOUBLE JEOPARDY, WHEN IS A COMPLAINT OR INFORMATION VALID

 A complaint or information is valid if it can support a judgment of conviction

 If the complaint or information is not valid, it would violate the right of the accused of the nature and cause of the
accusation against him

 If he is convicted under this complaint or information, the conviction is null and void and hence there is no first jeopardy

 REQUISITES FOR A VALID SUBSTITUTION OF A COMPLAINT OR INFORMATION

1. No judgment has been rendered

2. The accused cannot be convicted of the offense charged or any other offense necessarily included in the offense
charged

3. The accused will not be placed in double jeopardy

 WHEN WILL DISMISSAL OR TERMINATION OF THE FIRST CASE NOT BAR A SECOND JEOPARDY?

1. The dismissal must be sought by the defendant personally or through his counsel

2. Such dismissal must not be on the merits and must not necessarily amount to an acquittal

 GRANT OF DEMURER TO EVIDENCE OPERATES AS AN ACQUITTAL

The general rule that the grant of a demurrer to evidence operates as an acquittal and is, thus, final and unappealable,
to wit:

The demurrer to evidence in criminal cases, such as the one at bar, is "filed after the prosecution had rested its case," and
when the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to
warrant conviction beyond reasonable doubt, resulting in a dismissal of the case on the merits, tantamount to an acquittal of
the accused." Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed, for to do so would
be to place the accused in double jeopardy. The verdict being one of acquittal, the case ends there.
 WHEN IS A DISMISSAL OF THE CASE, EVEN WITH EXPRESS CONSENT OF THE ACCUSED, EQUIVALENT TO AN
ACQUITTAL, WHICH WOULD CONSTITUTE A BAR TO A SECOND JEOPARDY?

 For a dismissal to be a bar under double jeopardy, it must have the effect of acquittal

 As a general rule, dismissal upon motion of the accused or his counsel negates the application of double jeopardy
because the motion of the accused amounts to an express consent

 However, such a dismissal even with the express consent of the accused may constitute a bar to double jeopardy in
the following cases:

1. Where there is insufficiency of evidence given by the prosecution to support the charge against him

2. Where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to
speedy trial

 Consequently, the dismissal amounts to an acquittal and would bar a second jeopardy in the cases below

1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has
rested, which has the effect of a judgment on the merits and operates as an acquittal

2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a
speedy trial, which is in effect a failure to prosecute

 DISTINGUISH ACQUITTAL AND DISMISSAL

 Acquittal is a discharge after a trial, or an attempt to have one, upon the merits. It is always on the merits.
The accused is acquitted because the evidence doesn’t show his guilt beyond reasonable doubt.

 On the other hand, dismissal is when the case is terminated otherwise upon the merits thereof, as when the
dismissal is based on the allegation that the court has no jurisdiction, either upon the subject matter or the
territory, or that the complaint or information is not valid or sufficient, or upon any ground that doesn’t decide
the merits of the issue as to whether the accused is

or isn’t guilty of the offense charged

 WHEN WILL DISMISSAL OR TERMINATION OF THE FIRST CASE NOT BAR A SECOND JEOPARDY?

1. The dismissal must be sought by the defendant personally or through his counsel

2. Such dismissal must not be on the merits and must not necessarily amount to an acquittal

 WHAT ARE THE EXCEPTIONS TO DOUBLE JEOPARDY? WHEN CAN THE ACCUSED BE CHARGED WITH A SECOND
OFFENSE WHICH NECESSARILY INCLUDES THE OFFENSE CHARGED IN THE FORMER COMPLAINT OR INFORMATION?

 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 circumstances:

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
 c) The plea of guilty to a lesser offense was made without the consent of the prosecutor or offended party
except if the offended party fails to appear at arraignment

 RELATED PROTECTIONS PROVIDED BY THE RIGHT AGAINST DOUBLE JEOPARDY

1. Against a second prosecution for the same offense after acquittal;

2. Against a second prosecution for the same offense after conviction;

3. Against multiple punishments for the same offense

 DOCTRINE OF SUPERVENING EVENT

 Where after the first prosecution a new fact supervenes for which the defendant is responsible, which changes the
character of the offense and, together with the facts existing at the time, constitutes a new and distinct offense, the
accused cannot be said to be in second jeopardy if indicted for the second offense.

Example:

X WAS CHARGED WITH FRUSTRATED HOMICIDE. THERE WAS NOTHING TO INDICATE THAT THE VICTIM WAS
GOING TO DIE. X WAS ARRAIGNED. BEFORE TRIAL, THE VICTIM DIED. CAN X BE CHARGED WITH HOMICIDE?

> It depends.

> If the death of the victim can be traced to the acts of X, and the victim didn’t contribute to his death with
his negligence, X can be charged with homicide

> This is a supervening fact

> But if the act of X wasn’t the proximate cause of death, he cannot be charged with homicide

EXAMPLE OF DOUBLE JEOPARDY

1) A CRIME WAS COMMITTED IN MAKATI. THE CASE WAS FILED IN PASAY. WHEN THE PROSECUTION REALIZED THAT THE
COMPLAINT SHOULD HAVE BEEN FILED IN MAKATI, IT FILED THE CASE IN MAKATI. CAN THE ACCUSED INVOKE DOUBLE JEOPARDY?

> No, the court in Pasay has no jurisdiction, therefore, the accused was in no danger of being placed in jeopardy

> The first jeopardy didn’t validly attach

2) X WAS CHARGED WITH QUALIFIED THEFT. X MOVED TO DISMISS ON THE GROUND OF INSUFFICIENCY OF INFORMATION. THE CASE WAS
DISMISSED. SUBSEQUENTLY, THE PROSECUTION FILED A CORRECTED INFORMATION. CAN X PLEAD DOUBLE JEOPARDY?

> No, the first jeopardy didn’t attach because the first information was not valid

3) X WAS CHARGED WITH THEFT. DURING THE TRIAL, THE PROSECUTION WAS ABLE TO PROVE ESTAFA. X WAS ACQUITTED OF
THEFT. CAN X BE PROSECUTED FOR ESTAFA LATER WITHOUT PLACING HIM IN DOUBLE JEOPARDY?

> Yes
 > For jeopardy to attach, the basis is the crime charged in the complaint or information, and the one proved at the trial

> In this case, the crime charged in the first information was theft. X was therefore placed in jeopardy of being convicted of
theft. Since estafa is not an offense which is included or necessarily includes theft, X can still be prosecuted for estafa without placing
him in double jeopardy.

4) THE ESTAFA CASE AGAINST C WAS DISMISSED BUT THE DISMISSAL CONTAINED A RESERVATION OF THE RIGHT TO FILE
ANOTHER ACTION. CAN ANOTHER ESTAFA CASE BE FILED AGAINST X WITHOUT PLACING HIM IN DOUBLE JEOPARDY?

> Yes

> To raise the defense of double jeopardy, the first jeopardy must have been validly terminated

> This means that there must have been either a conviction or acquittal, or an unconditional dismissal of the case

> A provisional dismissal, such as this one, doesn’t validly terminate the first jeopardy

NOTE: in the second kind of jeopardy, the first jeopardy can validly only be terminated either by conviction or acquittal and not by the
dismissal of the case without the express consent of the accused.

5) X WAS CHARGED WITH THEFT. ON THE DAY OF THE TRIUAL, THE PROSECUTOR AND THE WITNESSES FAILED TO APPEAR. COUNSEL FOR
ACCUSED MOVED TO DISMISS THE CASE. THE COURT DISMISSED THE CASE PROVISIONALLY. SUBSEQUENTLY X WAS
CHARGED WITH THEFT AGAIN. CAN X INVOKE JEOPARDY?

> No, the case was dismissed upon motion of counsel for the accused, so it wasn’t dismissed without the express consent

> Moreover, the dismissal was only provisional, which is not a valid termination of the first jeopardy

> In order to validly terminate the jeopardy, the dismissal must have been unconditional

6) X WAS CHARGED WITH SLIGHT PHYSICAL INJURIES. ON HIS MOTION, THE CASE WAS DISMISSED DURING TRIAL. ANOTHER CASE
FOR ASSAULT UPON A PERSON IN AUTHORITY WAS FILED AGAINST HIM. CAN X INVOKE DOUBLE JEOPARDY?

> No, the first jeopardy wasn’t terminated through either conviction, acquittal, or dismissal without the express consent of X

> The first case was dismissed upon the motion of X himself

> Therefore, he cannot invoke double jeopardy

7) X WAS CHARGED WITH THEFT. DURING TRIAL, THE EVIDENCE SHOWED THAT THE OFFENSE COMMITTED WAS ACTUALLY ESTAFA.
WHAT SHOULD THE JUDGE DO?

> The judge should order the substitution of the complaint for theft with a new one charging estafa

> Upon filing of the substituted complaint, the judge should dismiss the original complaint. If it appears at any time before judgment
that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a
new one charging the proper offense
8) X WAS CHARGED WITH HOMICIDE. ON THE FIRST DAY OF TRIAL, THE PROSECUTION FAILED TO APPEAR. THE COURT DISMISSED THE
CASE ON THE GROUND OF VIOLATION OF THE RIGHT OF THE ACCUSED TO SPEEDY TRIAL. X WAS LATER CHARGED WITH MURDER.
CAN X INVOKE DOUBLE JEOPARDY?

> No, the first jeopardy was not validly terminated

> The judge who has not dismissed the case on the ground of violation of the right of X to speedy trial committed grave abuse
of discretion in dismissing the case after the prosecution failed to

appear once

> This is not a valid dismissal because it deprives the prosecution of due process

> When the judge gravely abuses the discretion in dismissing a case, the dismissal is not valid

Therefore, X cannot invoke double jeopardy

9) BEFORE THE PROSECUTION COULD FINISH PRESENTING EVIDENCE, THE ACCUSED FILED A DEMURRER TO EVIDENCE. THE
COURT GRANTED THE MOTION AND DISMISSED THE CASE ON THE GROUND OF INSUFFICIENCY OF EVIDENCE OF THE PROSECUTION. CAN
THE ACCUSED BE PROSECUTED FOR THE SAME OFFENSE AGAIN?

> Yes. There was no double jeopardy because the court has exceeded its jurisdiction in dismissing the case even before
the prosecution could finish presenting evidence

> It denied the prosecution of its right to due process. Because of this, the dismissal is null and void and cannot constitute a proper
basis for a claim of double jeopardy

10) THE PROSECUTOR FILED AN INFORMATION AGAINST X FOR HOMICIDE. BEFORE X COULD BE ARRAIGNED, THE PROSECUTOR
WITHDREW THE INFORMATION WITHOUT NOTICE TO X. THE PROSECUTOR THEN FILED AN INFORMATION AGAINST X FOR
MURDER. CAN X INVOKE DOUBLE JEOPARDY?

> No, there was no arraignment yet under the first information

> Therefore, the first jeopardy didn’t attach. The withdrawal or dismissal of the case before arraignment is not a bar to the filing
of a new information for the same offense.

> There is no double jeopardy where there is yet no arraignment

> A nolle prosequi or dismissal entered before the accused is placed on trial and before he pleads is not equivalent to an acquittal
and doesn’t bar a subsequent prosecution for the same offense

11) IF THE ACCUSED FAILS TO OBJECT TO THE MOTION TO DISMISS THE CASE FILED BY THE PROSECUTION, IS HE DEEMED TO HAVE
CONSENTED TO THE DISMISSAL? CAN HE STILL INVOKE DOUBLE JEOPARDY?

> No, silence doesn’t mean consent to the dismissal

> If the accused fails to object or acquiesces to the dismissal of the case, he can still invoke double jeopardy, since the dismissal was
still without his express consent.

> He is deemed to have waived his right against double jeopardy if he expressly consents to the dismissal

12) X WAS CHARGED WITH MURDER. THE PROSECUTION MOVED TO DISMISS THE CASE. COUNSEL FOR X WROTE THE WORDS “NO
OBJECTION” AT THE BOTTOM OF THE MOTION TO DISMISS AND SIGNED IT. CAN X INVOKE DOUBLE JEOPARDY LATER ON?
 > No, X is deemed to have expressly consented to the dismissal of the case when his counsel wrote “no objection” at the bottom of
the motion to dismiss

> Since the case was dismissed with his express consent, X cannot invoke double jeopardy

13) X WAS CHARGED WITH MURDER. AFTER THE PROSECUTION PRESENTED ITS EVIDENCE, X FILED A MOTION TO DISMISS ON THE
GROUND THAT THE PROSECUTION FAILED TO PROVE THAT THE CRIME WAS COMMITTED WITHIN THE TERRITORIAL JURISDICTION OF
THE COURT. THE COURT DISMISSED THE CASE. THE PROSECUTION APPEALED? CAN X INVOKE DOUBLE JEOPARDY?

> No, X cannot invoke double jeopardy

> The dismissal was upon his own motion so it was with his express consent

> Since the dismissal was with his express consent, he is deemed to have waived his right against double jeopardy

> The only time when a dismissal, even with the express consent of the accused, will bar a double jeopardy is if it is based either on
insufficiency of evidence or denial of the right to speedy trial

> These are not grounds invoked by X so he cannot claim double jeopardy

14) X WAS CHARGED WITH HOMICIDE. X MOVED TO DISMISS ON THE GROUND THAT THE COURT HAD NO JURISDICTION. BELIEVING IT HAD
NO JURISDICTION, THE JUDGE DISMISSED THE CASE. SINCE THE COURT, IN FACT, HAD JURISDICTION OVER THE CASE, THE
PROSECUTION FILED ANOTHER CASE IN THE SAME COURT. CAN X INVOKE DOUBLE JEOPARDY?

> No, X is estopped from claiming that he was in danger of being convicted during the first case, since he had himself earlier
alleged that the court had no jurisdiction

15) X WAS CHARGED WITH HOMICIDE. THE COURT, BELIEVED IT HAD NO JURISDICTION, MOTU PROPIO DISMISSED THE CASE. THE
PROSECUTION APPEALED, CLAIMING THAT THE COURT, IN FACT HAD JURISDICTION. CAN X INVOKE DOUBLE JEOPARDY?

> Yes, when the trial court has jurisdiction but mistakenly dismisses the complaint or information on the ground of lack of it,
the dismissal wasn’t at the request of the accused, the dismissal is not

appealable because it will place the accused in double jeopardy

16) X WAS CHARGED WITH RAPE. X MOVED TO DISMISS ON THE GROUND THAT THE COMPLAINT WAS INSUFFICIENT BECAUSE IT
DID NOT ALLEGE LEWD DESIGNS. THE COURT DISMISSED THE CASE. LATER, ANOTHER CASE FOR RAPE WAS FILED AGAINST X.
CAN X INVOKE DOUBLE JEOPARDY?

> No, X is estopped from claiming that he could have been convicted under the first complaint

> He himself moved for the dismissal on the ground that the complaint was insufficient

> He cannot change his position and now claim that he was in danger of being convicted under the complaint

17) X WAS CHARGED WITH MURDER, ALONG WITH THREE OTHER PEOPLE. X WAS DISCHARGED AS A STATE WITNESS. CAN X BE
PROSECUTED AGAIN FOR THE SAME OFFENSE?

> It depends
 > As a general rule, an order discharging an accused as state witness amounts to an acquittal, and he is barred from being
prosecuted again for the same offense

> However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for the
discharge, he can be prosecuted again

18) X INSTALLED A JUMPER CABLE WHICH ALLOWED HIM TO REDUCE HIS ELECTRICITY BILL. HE WAS PROSECUTED AND SUBSEQUENTLY
CONVICTED FOR A MUNICIPAL ORDINANCE AGAINST UNAUTHORIZED INSTALLATION OF A DEVICE. CAN HE STILL BE
PROSECUTED FOR THEFT?

> No, under the second type of jeopardy, when an act is punished by law and an ordinance, conviction or acquittal under one will bar
a prosecution under the other

> The constitutional protection against double jeopardy is available as long as the acts which constitute or have given rise to the first
offense under a municipal ordinance are the same acts which

constitute or have given rise to the offense charged under the statute