Crim Pro

Venue in criminal cases is jurisdiction. When the crime is committed or any of its essential ingredients
took place within the territorial jurisdiction of the court, it has jurisdiction or concurrent jurisdiction with
other courts, as the case may be,

Institution of Criminal actions

For all offenses requiring the conduct of preliminary investigation, the criminal action is filed with the
proper officer (in general, the prosecutor) for the purpose of conducting the preliminary investigation.

For all other offenses, the criminal action may be filed directly to the municipal trial court, or with the
office of the prosecutor. In Manila and other chartered cities, the filing of the criminal action shall be
made with the office of the prosecutor, unless otherwise provided in their charters.

Under Rule 112, Preliminary investigation is required in offenses where the law prescribes the penalty of
imprisonment of at least 4 years, 2 months and one day, without regard of the fine.

Criminal Information or Complaint

A complaint or information shall be in writing, in the name of the People of the Philippines and against
all persons who appear to be responsible for the offense involved.

A complaint is a sworn written statement charging a person with an offense, subscribed by the offended
party, peace officer or other public officer charged with the enforcement of the law violated.

Information is an accusation in writing charging a person with an offense, subscribed by the prosecutor
and filed with the court.

In all criminal actions initiated by the filing of a complaint or information shall be prosecuted under the
direction and control of the prosecutor. However, in case of heavy work schedule of the public
prosecutor or lack of public prosecutors, a private prosecutor may be authorized in writing by the Chief
Prosecutor of the Prosecution Office or by the Regional State Prosecutory and subject to the approval of
the court. Once authorized, he shall continue to prosecute the case up to end of the trial even in the
absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn.

In crimes of adultery or concubinage, only the offended spouse may initiate the criminal action. The
crime cannot be prosecuted if the offended spouse does not include all the guilty parties thereto if both
are alive, or when the offended spouse has consented to such offense or has pardoned the offenders.

In case of seduction, abduction or acts of lasciviousness, the said offenses may only be instituted by the
offended party, or his parents, grandparents or guardian, in that order of succession and preference. If
the offended party dies or becomes incapacitated and his or her parents, grandparents or guardian is
unknown, before the action has been filed, the State pursuant to the doctrine of parens patriae, may
institute the criminal action. Note however, that if the offended party has pardoned the offender, the
action cannot be prosecuted.

In case of defamation, only the persons defamed may institute the criminal action.

If the offended party is of legal age and does not suffer any incapacity or disability, he or she may only
commence the action, to the exclusion of all others.

Adultery, concubinate, seduction, abduction, acts of lasciviousness, and defamation are private crimes
and cannot be prosecuted de officio.

A complaint or information is sufficient if it states the following

1. the name of the accused

2. the designation of the offense by the law

3. the acts or omission complained of constituting the offense

4. the name of the offended party

5. the approximate date of the commission of the offense

6. the place where the offense is committed.

The complaint of information must state the first name and last name of the accused or any appellation
or nickname by which he has been or is known. If his name is unknown, he shall be described under a
fictitious name with a statement that his true name is unknown. If his name is later discovered, his true
name shall be inserted in the complaint or information.

The complaint or information must also state the designation of the offense as given by law or if there is
no designation as to such, reference to the number of provision violated shall be stated. It shall also state
the acts or omission complained of constituting the offense which must be in the ordinary, concise and
particular words. Also, the qualifying and aggravating circumstances attending the offense must also be
stated, otherwise, they shall not be appreciated.

General rule is that an accused cannot be convicted of a crime which is not stated in the complaint or
information. To do so would violate the right of the accused to be informed of the nature and cause of
the accusation. An exception to this rule is when the accused is convicted of a crime which necessarily
includes or is included in the offense charged.

The title or the designation of the offense is not the controlling factor in the prosecution of the offense
but the recital of the acts or omissions constituting the offense.

The Complaint or information must only charge one offense or where the law provides a single
punishment for several offenses, such as in complex crimes and special complex crimes.
All the elements of the offense and the acts pertaining thereto must be stated in the complaint or
information. The reason for this is to inform the accused of the nature and cause of the accusation
against him.

A complaint or information may be amended, in form or in substance, at any time before the accused
enters his plea. After the accused has been arraigned, only formal amendments may be made with leave
of court and provided that it does not cause prejudice to the rights of the accused.

If the amendment downgrades the nature of the offense charge or excludes any accused from the
complaint or information, such amendment may only be made upon motion of the prosecutor, with
notice to the offended party and with leave of court.

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 complain or information upon the filing of the new one charging the
proper offense, provided that the accused shall not be placed in double jeopardy.

An amendment may be considered prejudicial to the accused if his defenses under the information
which originally stood would no longer be available to the amended information; or if any evidence
which the defendant may have under the original information would no longer be available in the
amended information.

An amendment is considered as formal if it does not change the nature or essence of the offense charge
or it does not cause surprise to the accused as to deprive the latter of the opportunity to meet the new
information.

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Prosecution of Civil Actions

The institution or filing of the criminal action includes therein the institution of civil action for the
recovery of civil liability arising from the offense charge (Civil Liability Ex Delicto)

The exception to the above rule is when the offended party

1. waives the civil action

2. reserves the right to institute the civil action separately

3. institutes the civil action prior to the criminal action.

Another exception is when the civil liability arises from other sources provided by law such as violation
of civil and political rights, defamation, fraud and physical injury, refusal of a public officer to render aid,
or for quasi delicts. They may be instituted independently of the criminal action. They are called
independent civil actions. The limitation in such cases is that the offended party cannot recover damages
twice for the same acts or omission of the defendant.

In criminal actions of estafa and BP 22, the civil action shall be deemed included in the institution
thereof. There can be no separate institution of civil action in cases of estafa and bp 22. Or otherwise
stated, theere can be no reservation of the civil action for the recovery of civil liability in cases of estafa
and bp22.

In offenses cognizable by the Sandiganbayan, the civil liability arising from the offense charge shall be
deemed instituted in the criminal action. No reservation of the civil liability shall be allowed. If the civil
action is filed before the criminal action, the civil action shall be consolidated with the Sandiganbayan.
Otherwise, the civil case shall be abandone.

The acquittal of the accused in the criminal action does not carry with it the extinguishment of the civil
liability arising from the offense charged. The offended party may still prosecute the civil liability.
However, if it expressly provided in the judgment in the criminal action that the act or omission which
the civil liability arose from did not exist, then the civil liability arising thereform shall be extinguished.

Effect of death of the accused

Before arraignment, the criminal liability is extinguished thereby warranting the dismissal of the criminal
action. With respect to civil liability, the death is without prejudice to the filing of a separate civil action
against the estate of the accused.

After arraignment and during the pendency of the trial, the death of the accused shall extinguish the civil
liability arising from the offense charged. Unless, the civil liability is predicated on other sources of
obligation such law, contract, quasi contract, and quasi delict.

After final judgment, the civil liability adjudged shall be enforced against the estate of the deceased
accused as money claims.

A prejudicial question is one which arises in a case, the resolution of which is a logical antecedent of the
issue involved in the criminal case, and the cognizance of which pertains to another tribunal.

Elements of prejudicial question

1. The civil case involves facts which are intimately related to those upon which the criminal prosecution
is based upon.

2. In the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused
would necessarily determined

3. the jurisdiction to try said question must be lodged in another court.

Under the rules, the elements thereof are:

1. the previously instituted civil action involves an issue similar or intimately related to the issue raised in
the subsequent criminal action

2. the resolution of such issue determines whether or not the criminal prosecution may proceed.

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Preliminary Investigation

Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to

engender a well-founded belief that a crime has been committed and the respondent is probably guilty
thereof and should be held for trial.

Preliminary investigation is necessary for offenses which the law prescribes the penalty of at least 4
years, 2 months, and one day, withouh regard to fine.

Preliminary investigation is not required when the accused is arrested without a warrant. In flagrante
delicto.

Appeal may be taken to the DOJ within 15 days from the receipt of the decision of the Chief Prosecutor,
Regional State Prosecurtor, or Provincial/City Prosecutor or from the denial of motion for
reconsideration, and such appeal must be based on the grounds of manifest error or grave abuse of
discretion.

Procedure: The Complaint with the affidavits and other supporting documents shall be filed with the
prosecutor. Within 10 days from the filing of the complaint, the prosecutor may dismiss the complaint if
it finds no grounds to continue with the investigation or issue subpoena to the respondent attaching the
complaint and the supporting documents.

Within 10 days from the receipt of the subpoena and the complaint, the respondent shall submit his
counter-affidavit with the supporting documents.

If the respondent cannot be subpoenaed or fails to file his counter affidavit, the investigating prosecutor
shall forthwith render resolution based on the complaint and its supporting documents.

A hearing shall be conducted within 10 days from the filing of the counter-affidavit. It shall be terminated
within 5 days. Within 10 days after its termination, the investigating officer shall then issue a resolution
determining whether or not there is probable cause to hold the respondent for trial.

The resolution shall be then forwarded to the provincial or city prosecutor, as the case may be, who shall
approve and sign the same. Thereafter, the case shall be then file with the appropriate court.

Warrant of Arrest - The Court, within 10 days from the filing of the complaint or information, the judge
shall personally evaluate the resolution. If the court is satisfied, he may forthwith issue a warrant of
arrest. If not, he may require the submission of additional documents within 5 days from the order
thereof, and issue a resolution within 30 days from the said submission of additional documents.

Warrant of arrest shall not issue if the accused is already in detention.

Inquest Proceeding - an inquest proceeding is an informal and summary investigation conducted by the
investigating prosecutor in criminal cases involving persons who arrested without the benefit of a
warrant of arrest, for the purpose of determining whether or not the said persons should remain under
custody and correspondingly be charge in court.

Probable Cause by Prosecutor vs. Probable Cause by the Judge

The finding of probable cause by the prosecutor, which is executive in nature, has for its object the
determination of sufficiency of facts which would engender a belief that a crime has been committed
and the respondent is probably guilty thereof, and should be held for trial. Its purpose is for the filing of
information in court.

The finding of probable cause by the judge, also called preliminary examination, is for the purpose of
issuing a warrant of arrest or commitment order. The judge shall personally examine the resolution, the
complaint and the supporting documents, and if satisfied, issue the corresponding warrant of arrest.

A person arrested without a warrant, before the filing the complaint information in court, may request
that a preliminary investigation be conducted. However, the person arrested shall be required to execute
a waiver of the provisions of Article 125 of the RPC.

If the complaint or information is already filed in court, within 5 days from the time he learned of such
filing, he may request for the conduct of preliminary investigation. Failure to request within such period
shall constitute as a waiver.

Absence of the conduct of a preliminary investigation does not affect the complaint or information nor
does it affect the jurisdiction of the court. It may not be dismissed on such ground as it is not among the
grounds provided by the Rules. The should not dismiss the case if a preliminary investigation was not
conducted. It should hold in abeyance the proceeding and order the conduct of preliminary
investigation.

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Arrest

Arrest is the taking of a person into the custody in order that he may be bound to answer for the
commission of an offense.

Arrest is made by the actual restraint of person to be arrest or by his submission to the custody of the
person making the arrest. No violence or unnecessary force shall be used in making the arrest. The
person arrested shall not be subjected to a greater restraint than is necessary for his detention.

The arresting officer has the duty to deliver the person arrested to the nearing police station or jail
without necessary delay. Also, the head of the office to whom the warrant of arrest was delivered shall
cause the execution of the arrest within 10 days from its receipt. Within 10 days after the expiration of
the warrant, the officer to whom it was delivered shall make a report to the judge who issued the
warrant.

Warrentless Arrest

A peace officer or a private person may, without warrant, arrest

1. when, in his presence, the person to be arrested has committed, 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 the facts or circumstance that the person to be arrested has committed it

3. when the person to be arrested is a prisoner who escaped from a penal establishment, or place where
he is serving final judgment or temporarily detained while his case is pending, or has escaped while
being transferred from one detention to another.

4. when the person lawfully arrested escaped or is rescued

5. when the person is arrested by his bondsman for the purpose of surrendering him

6. when the person to be arrested is released on bail and attempts to depart the the country without
court permission;

Elements of in flagrante delicto

1. the person arrested must have executed an overt act manifesting or indicating that he has just
committed, is actually committing or is attempting to commit an offense

2. such over act is done in the presence or within the view of the arresting officer.

Warrant of Arrest

1. It must be issued based on probable cause.

2. the probable cause must be determined personally by the judge

3. There must be an examinationn under oath or affirmation of the complainant and the witnesses he
may produce

4. the warrant must be particularly describe the person to be seized.

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Bail
It is the security given for the release of a person in custody of law, furnished by him or by bondsman, to
guarantee his appearance before any court as required under the conditions specified.

Forms of Bond

1. Corporate Surety

2. Property Bond

3. Cash Deposit

4. Recognizance

Bail negating Circumstance - If the penalty imposed by the trial court is imprisonment exceeding 6 years,
but not more than 20 years, the accused shall be denied bail or his bail shall be cancelled upon showing
by the prosecution of the following

1. the accused is a recidivist, quasi recidivist, or habitual delinquent, or has committed a crime
aggravated by reiteration.

2. the acccused has previously escaped from legal confinement, evaded sentence or violated the
conditions of his bail without justification

3. the accused committed a crime while under probation, parole or under condition pardon

4. the circumstances of his case indicate the probability of flight if released on bail

5. there is an undue risk that he may commit another crime during the pendency of appeal.

Bail as a matter of right

1. before or after conviction by the MTC

2. Before conviction by the RTC of a crime not punishable by reclusion perpetua, life imprisonment or
death

3. before conviction by the rtc of a crime punishable by reclusion perpetua, life imprisonment, or death
when the evidence of guilt is not strong

Bail as a matter of discretion

1. after conviction by the rtc of a crime not punishable by reclusion perpetua, life imprisonment or death

2. upon conviction of a crime by the RTC which the law prescribes the penalty of imprisonment
exceeding 6 years but not more than 20 years, the grant of bail to the accused shall be discretionary if
the prosecution has shown that
a. the accused is a recidivist, quasi recidivist, or habitual delinquent or committed a crime aggravated by
reiteration

b. the accused previously escape legal confinement, evaded sentence or violated the conditions of his
bail without justification

c. the accused committed a crime while under probation, parole or condition pardon

d. the circumstances of his case indicate the probability of fllight if released on bail

3. there is an undue risk that he may commit another crime during the pendency of appeal

3. before conviction by the rtc of a crime punishable by reclusion perpetua, llife imprisonment, or death
when the evidence of guilt is strong.

Conditions of Bail

The accused shall appear before the court whenever required by the court or by the rules

failure of the accused to appear at the trial without justification despite notice shall be deemed a waiver
of his right to be present thereat. the trial may proceed in absentia

the bondsman shall surrender the accused for the execution of final judgment

Factors to be considered in granting bail

1. financial ability of the accused to give bail

2. nature and circumstances of the offense

3. penalty of the offense charged

4. character and reputation of the accused

5. age and health of the accused

6. weight of the evidence against the accused

7. probability of the accused appearing at the trial

8. forfeiture of other bails

9. the fact that the accused was a fugitive from justice when arrested

10. pendency of other cases where the accused in on bail

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Arraingment and Plea

Arraignment is a proceeding in a criminal case the object of which is to establish the identity of the
accused, to inform the accused of the charge, and to give him the opportunity to plead.

The arraignment shall be made within 30 days from the time the court acquires jurisdiction over the
person of the accused, unless the law provides for a shorter period within which to arraign the accused.

When the accused is under preventive detention, his case shall be raffled within 3 days from filing and
the accused shall be arraigned within 10 days from the time the court acquired the record of the case.

Plea bargaining is the process whereby the accused, offended party, and the prosecution work out a
mutally satisfactory disposition of the case subject to the court's approval. It usually results in the
accused pleading to a lower offense or to one of the offenses for multi-count indictment in return of a
lighter sentencce.

After arraingment but before trial, the accused may still be allowed to plead guilty to a lower offense,
provided that the offended party, prosecutor approves of that same and provided further that he
withdraws his previous plea.

The accused may still be allowed to change his plea to a lesser offense after the trial has begun provided
that the offended party and the prosecution approves of the same and that the prosecution does not
have sufficient evidence to establish the guilt of the accused.

If the accused plead guilty to a capital offense, the court must 1) conduct searching inquiry into the
voluntariness and full comprehension of the plea, 2) require the prosecution to present evidence to
prove the guilt and precise culpability of the acused 3) ask the accused if he desires to present evidence
on his behalf and to allow him if he so desires.

Searching inquiry element

The judge must satisfy himself that the acccused entered the plea voluntarily and intelligently

the judge must satisfy himself that there exist a rational basis in the finding of guilt of the accused based
on the plea

inform the accused of the exact length of imprisonment and the certainty that he will serve it in the
national penitentiary.

Improvident Plea is a plea without information as to all the circumstances affecting it; it is based on a
mistaken assumption or misleading information or advice. In such case, the judgment for conviction may
be set aside if it solely based on the improvident plea. However, the court may still validly convict the
accused if the conviction is supported with adequate evidence to prove guilt.

The arraignment may be suspended on the following grounds

1. there is a prejudicial question

2. the accused is suffering from unsound mental condition which renders him or her unable to
understand the charges against him or her and to plead intelligently thereto.

3. there is a petition for review in the DOJ or Office of the President, in such case the suspension shall
not exceed 60 days.

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Motion to Quash

The motion must be filed at any time before the accused enters plea. Otherwise, the objections shall be
deemed waived, except for the ground that the court has no jurisdiction over the offense charged, the
facts charged do not constitute an offense, prescription and double jeopardy

No oral motion to quash. It must be in writing, signed by the accused or his counsel and distincly specify
the factual and legal grounds.

The following are the grounds for the quashal of the complaint or information

1. The facts charged does not constitute an offense

2. the court trying the case has no jurisdiction over the offense charged

3. the court trying the case has no jurisdiction over the person of the acccused

4. the person who filed the information has no authority to do so

5. the complaint or information does not conform substantially to the prescribed form

6. that more than one offense is charged except when a single penalty for various offenses is prescribed
by law

7. the criminal action or liability is extinguished by prescription

8. it contains averments which, if true, would constitute a legal excuse or justification

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

If the motion to quash is based on an alleged defect on the complaint or information which can be cured
by amendment, the court shall order that an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be
granted the opportunity to correct the defect by amendment. The court shall only grant the motion if
after such opportunity, the prosecution fails to amend the complaint or information or that after such
amendment, it suffers the same defect.
If the motion is sustained, the court shall order that another information shall be filed except when the
quashal is based on prescription or double jeopardy. If the accused is under custody, he shall not be
discharged except when he is released on bail. If no order or if an order is given and no new information
is filed, the accused shall be released unless he is also in custody for other charges.

Elements of Double Jeopardy

1. The first jeopardy must have attached, that is, a) the accused has been previously convicted or
acquitted of the offense charge, or the case against him or her was dismissed or otherwise terminated
without his or her express consent, b) made by a court of competent jurisdiction, c) there is a valid
complaint or information, d) the accused has been arraigned.

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 necessary
included in the offense charged in the first complaint or information or is an attempt or frustration
thereof.

Exceptions to double jeopardy

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

2. the facts constituting the graver charge became known or were discovered only after the accused
entered his plea to the former complaint or information

3. the plea of guilty to a lesser offense was made without the consent of the prosecution or the offended
party except when the latter fails to appear before the court,

4. the prior conviction was not made by a competent court

Provisional dismissal - No provisional dismissal shall be made except with the consent of the prosecutor,
consent of the accused, and notice to the offended party.

In offenses punishable with imprisonment not exceeding 6 years, the order of provisional dismissal shall
become permanent if it is not revived within 1 year from the issuance of the order. In case of offenses
punishable with imprisonment exceeding 6 years, the order of provisional dismissal shall become
permanent if it is not revived within 2 years after issuance of the order.

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Pretrial

The purpose of pretrial is for the simplication, abbreviation, and to expedite the disposition of the case.

The matters to be considered in the pretrial are

1. plea bargaining

2. stipulation of facts

3. marking for identifaction of evidence

4. waiver of objections to admisibility of evidence

5. modification of the order of trial if the accused admits of the charge but interposes a lawful defense

6. such other matters as will promote fair and expeditious trial of the criminal and civil aspects of the
case.

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Trial

Within 30 days after the receipt of the pretrial order, the trial shall commence. The witness has at least
15 days to prepare for trial. Otherwise stated, the trial shall commence not earlier than 15 days but not
more than 30 days from the receipt of the pretrial order.

The period of trial shall not exceed 180 days counted from the first day of trial.

The periods of delay which are mainly attributable to the accused shall not be counted.

The grant of continuance shall only be granted considering the following factors, if the case is novel,
unusual or complex due to the nature of the case, the number of the accused or that the preparation for
the case cannot, with reasonable diligence, be made within a certain period of time; or whether or not
the grant of continuance would result in the miscarriage or make the continuance impossible.

The accused may move for the dismissal of information on the ground of denial of his right to speedy
trial if he is not brought to trial within the time limit. Such dismissal is subject to double jeopardy. Failure
of the accused to move for dismissal shall constitute as a waiver of the right to dimiss under this section.

A witness may be compelled to appear and testify by ordering him to post bail or if he refuses, the court
shall order for his arrest and commit to prison until he complies or testifies.

The accused may examine a witness before trial if the witness is sick or infirm as to render the witness
unable to attend the trial or when he lives more than 100 km from the place of trial and he has no
means to attend the same. It shall be made before any court, a member of the bar with good standing,
or if the order is made by a superior court, before an inferior court.
The prosecution may also examine witness before trial if the witness is sick or infirm which would render
him unable to attend the trial or when he is to leave the Philippines and such examination must be done
before the court where the case is filed.

When there are several accused, they shall be tried jointly, unless the trial shall have been ordered
separated via a motion.

State Witness

When two or more accused jointly tried for the commission of an offense, upon motion of the
prosecution before resting its case, the court may order direct one or more of the accused be discharge
with their consent so that they may be witnesses for the state. It must be shown and that the court must
be satisfied that:

1. There is an absolute necessity for the testimony of the accused whose discharge is requested

2. there is no other direct evidence available for the proper prosecution of the offense committed,
except for the testimony of the accused

3. the testimony of the accused can be substantially corroborated in its material points

4. the accused must not appear to be the most guilty

5. the accused has not at any time been convicted of any offense involving moral turpitude.

Demurrer to evidence

It is a ground for dismissing a criminal case based on the insufficieny of evidence against the accused.
The demurrer to evidence may be made by the court upon its initiative or upon motion of the accused.
The demurrer to evidence may only be made after the prosecution has rested its case.

If the demurrer to evidence is filed without leave of court, the denial thereof shall constitute as a waiver
on the part of the accused of his right to present his evidence. The Court shall then proceed to render
judgment based on the evidence presented by the prosecution.

If the demurrer to evidence is filed with leave of court, the denial thereof shall not result in the waiver
on the part of the accused of his right to present evidence; the accused may still present evidence.

In both cases, the grant of the demurrer to evidence shall result in the dismissal of the case. Such
dismissal operates as an acquittal and can no longer be subject of appeal without the accused being
placed in double jeopardy.

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Judgment

The judgment must be in writing, in the official language, personally and directly prepared by the judge,
signed by him, and must state clearly and distinctly the facts and the law on which it is based. It must
state whether the accused is guilty or not guilty and imposing upon him the proper penalty and civil
liability.

It shall contain the legal qualification of the offense committed constituting the acts committed by the
accused and the aggravating or mitigating circumstances which attended its commission, the
participation of the accused whether as a principal, accomplice or accessory, the penalty imposed, and
the civil liability of the accused, if any.

In case of acquittal, the judgment must state whether or not the evidence of the prosecution absolutely
failed to proved the guilt of the accused, or merely failed to prove beyond reasonable doubt the guilt of
the accused. In both case, it shall be stated therein the act or omission on which the civil liability is based
exists or not.

When two or more offenses are charged in the complaint or information and the accused failed to object
thereto before arraignment, the court may convict him on as many offenses as are charged and proved
and impose on him the penalty of each, setting out separately the findings of fact and law.

The general rule is that the accused can only be convicted of the offense charged in the complaint of
information. The exception is in the Rule on Variance. When there is variance between the offense
charged in the complaint or information and that proved, and the offense as charged is included or
necessarily includes the offense proved, the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is included in the offense proved.

An offense charged necessarily includes the offense proved if some of the essential elements of the
latter as alleged in the complaint or information, constitute the latter.

an offense charged is necessarily included in the offense proved when the essential elements of the
former constitute that of the latter.

Judgment becomes final

1. lapse of the period within which to file an appeal, and no appeal is taken therefrom.

2. total or partial service of the sentence

3. the accused waives in writing the right to appeal

4. when the accused has applied for probation.

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Motion for New Trial

1. error of law during trial

2. irregularities which are prejudicial to substantial rights of the accused

3. new and material evidence is discovered which the accused could not with reasonable diligence
produce it at the trial and if presented and admitted would change the judgment

Motion for Reconsideration

1. error of law

2. error of fact in judgment