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jurisdiction or with not be reviewable by
grave abuse of appeal or by certiorari
discretion, then before judgment. (Sec.
certiorari or 23, Rule 119, ROC, as
prohibition lies. amended)
(Lazarte v.
Sandiganbayan, G.R.
No. 180122, 13 Mar.
2009)
Where Certiorari may not lie in the Denial of
Demurrer to Evidence
A petition for certiorari assailing the denial of a
demurrer to evidence will not resolve the merits of
the case in advance of trial.
The court tasked with resolving the petition for
certiorari may only review whether the lower court
denied the demurrer to evidence with grave abuse
of discretion.
Filing petitions for certiorari to assail denials of
demurrers to evidence is emphatically discouraged.
There is clearly a remedy still left to the accused,
which is to continue with trial. (Espinosa v.
Sandiganbayan, G.R. No. 191834, 04 Mar. 2020)
Q: After the prosecution rested its case, the
defense filed a Motion for Leave to File Attached
Demurrer to evidence with attached Demurrer
to Evidence. The RTC then issued a Resolution
granting the Demurrer on the ground that based
on its assessment, the testimonies of the
prosecution witnesses were plagued with
inconsistencies. Disagreeing with the RTC, the
OSG filed a petition for certiorari before the CA.
The CA granted the petition for Certiorari and
reversed the acquittal made by the RTC. The CA
thus declared null and void the RTC's Resolution
granting the Demurrer, and ordered the case
reinstated for continuation of the proceedings.
Did the CA err in reversing Ray and Borromeo's
acquittal?
A: YES. Sec. 21, Art. III of the 1987 Constitution
provides that “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,
535
conviction or acquittal under either shall constitute
a bar to another prosecution for the same act.” This
is what is otherwise known as the right against
double jeopardy.
At the outset, it is important to point out that the
Court agrees with the CA that the RTC should not
have granted Raya and Borromeo's Demurrer.
Therefore, even if the RTC clearly erred in acquitting
Raya and Borromeo by granting their Demurrer, the
CA could not, and should not have, granted the
petition for certiorari for this was in violation of
their right against double jeopardy.
The grave abuses of discretion alleged by the People
in its petition for certiorari constituted, in reality,
mere errors of judgment or misapprehension of
evidence which do not justify the issuance of the
writ of certiorari. Ultimately, the CA erred in
granting the petition for certiorari and reinstating
the proceedings against Raya and Borromeo. (Raya
v. People, G.R. No. 237798, 05 May 2021)
Procedure when Motion to Quash is Denied
When the motion to quash is denied, the accused
should:
1. Plead;
2. Go to trial without prejudice to the special
defenses he invoked in the motion; and
3. Appeal from the judgment of conviction, if any,
and interpose the denial of the motion as an
error.
Q: Is the order denying the motion to quash
appealable?
A: NO.
GR: It is interlocutory and not appealable. Certiorari
and prohibition are not the correct remedies against
an order denying a motion to quash. The defendant
should instead go to trial and raise the special
defense he had invoked in his motion. And if after
trial on the merits, an adverse decision is rendered,
remedy is to appeal in the manner authorized by
law. (Bulaong v. CA, G.R. No. 78555, 30 Jan. 1990)
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XPNs:
1. The act has ceased to be an offense;
2. When intervention by higher court is required
for the orderly administration of justice in the
interest of both the accused and the public;
3. It is unfair and unjust to make the accused go to
trial;
4. When the circumstances warrant that
technicalities of procedures should be set aside;
and
5. If the court denying the motion to quash acted
without or in excess of jurisdiction or with
grave abuse of discretion.
Q: Bimby is charged with illegal possession of
firearms under an Information signed by the
Provincial Prosecutor. After arraignment but
before pre-trial, he found out that the Provincial
Prosecutor had no authority to sign and file the
Information as it was the City Prosecutor who
has such authority. During the pre-trial, Bimby
moves that the case against him be dismissed on
the ground that the information is defective
because the officer signing it lacked the
authority to do so. The Provincial Prosecutor
opposes the motion on the ground of estoppel as
Bimby did not move to quash the Information
before arraignment. If you are the counsel for
Bimby, what is your argument to refute the
opposition of the Provincial Prosecutor? (2000
BAR)
A: I would argue that since the Provincial
Prosecutor had no authority to file the information,
the court did not acquire jurisdiction over the
person of the accused and over the subject matter of
the offense charged. Hence, this ground is not
waived if not raised in a motion to quash and could
be raised at the pre-trial. (People v. Hon. Zeida
Aurora Garfin, G.R. No. 153176, 29 Mar. 2004)
Effects of Sustaining the Motion to Quash
1. If the motion to quash is sustained, the court
may order that another complaint or
information be filed except when the motion
was based on the extinction of criminal action
or liability or when it is based on double
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jeopardy, as provided in Sec. 6, Rule 117 of the
ROC, as amended.
a. If the order is made, the accused, if in
custody, shall not be discharged unless
admitted to bail.
b. 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. (Sec. 5, Rule
117, ROC, as amended)
2. If the motion to quash is sustained upon any of
the following grounds, the court must state, in
its order granting the motion, the release of the
accused if he is in custody, or the cancellation of
his bond if he is out on bail:
a. That a criminal action or liability has been
extinguished;
b. That it contains averments which, if true,
would constitute a legal excuse or
justification; or
c. That the accused has been previously
convicted or acquitted of the offense
charged.
3. If the ground upon which the motion to quash
was sustained is that the court has no
jurisdiction over the offense charged, the better
practice is for the court to remand or forward
the case to the proper court, not to quash the
complaint or information.
4. If the motion is based on any of the following
grounds:
a. That the facts charged do not constitute an
offense;
b. That the officer who filed the information
had no authority to do so;
c. That it does not conform substantially to
the prescribed form; or
d. That more than one offense is charged.
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The court should order the prosecution to file
another information or an amendment thereof, as
the case may be, with a definite period, the order
further stating that in case of failure to comply
therewith, the accused if he is in custody shall be
discharged, or his bond cancelled if he is bonded.
(Pamaran, 2010)
Exception to the Rule that sustaining the Motion
is not a bar to another Prosecution
GR: An order sustaining the motion to quash is not
a bar to another prosecution for the same offense.
XPNs: The motion was based on the grounds of:
1. Extinction of criminal action or liability; and
2. Double jeopardy. (Sec. 6, Rule 117, ROC, as
amended)
2. DOUBLE JEOPARDY
Double jeopardy, as a criminal law concept, refers to
jeopardy of punishment for the same offense,
suggesting that double jeopardy presupposes two
criminal prosecutions. (Riano, 2019 citing Garcia v.
Sandiganbayan, 603 SCRA 348, 361)
A person who has been convicted, acquitted or the
case against him dismissed or otherwise terminated
without his express consent cannot again be charged
with the same or identical offense.
The Philippine Constitution does not prohibit
placing a person in jeopardy. What it prohibits is
putting the accused in double jeopardy in which he
is put in danger of conviction and punishment for
the same offense for more than once. (Riano, 2019)
Purpose of the Right against Double Jeopardy
The purpose is to set the effects of the first
prosecution forever at rest, assuring the accused
that he shall not thereafter be subjected to the
danger and anxiety of a second charge against him
for the same offense. (Caes v. Intermediate Appellate
Court, G.R. Nos. 74989-90, 06 Nov. 1989)
537
It protects the accused not against the peril of
second punishment but against being tried again.
Finality of Acquittal Doctrine
GR: An acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately
final and cannot be appealed. (People v.
Sandiganbayan, G.R. No. 164068-69, 19 Nov. 2013)
XPN: When the proceedings were rigged, and a
sham and a mock trial held with pre-determined
judgment of acquittal, the proceedings are unlawful
and void ab initio. Double jeopardy then cannot be
invoked in setting aside such judgment because the
prosecution was denied of due process. (Galman v.
Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
Kinds of Double Jeopardy
1. No person shall be put twice in jeopardy for the
same offense.
NOTE: This prohibits double jeopardy of
punishment for the same offense.
2. When the act punished by a law and an
ordinance, conviction or acquittal under either
shall be a bar to another prosecution for the
same act. (Sec. 21, Art. III, 1987 Constitution)
NOTE: This kind prohibits double jeopardy of
punishment for the same act.
Q: Manuel was charged with violation of a city
ordinance prohibiting the use of unauthorized
installations of electric wirings. The case was
dismissed on the ground of prescription.
Subsequently, an information for theft of
electric power was filed against Manuel. May
Manuel properly invoke the principle of double
jeopardy?
A: YES. The immediate physical effect of the
unauthorized installation was the inward flow of
electric current into Manuel’s ice plant without the
corresponding recording thereof in his electric
meter. In other words, the “taking” of electric
current was integral with the unauthorized
installation of electric wiring and devices. The
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dismissal of the information for violation of the local
ordinance amounts to an acquittal of the accused of
that offense. (People v. Relova, G.R. No. L-45129, 06
Mar. 1987)
Elements of Double Jeopardy
1. Conviction or acquittal, or dismissal was made
without the consent of the accused;
2. Conviction or acquittal, or dismissal was made
by a court of competent jurisdiction;
3. A valid information sufficient in form and
substance to sustain a conviction of the crime
charged;
4. Accused enters a valid plea; and
5. The subsequent prosecution is for an offense
which is:
a. the same as in the former complaint or
information;
b. frustration of; or
c. for any offense which is necessarily
included in the offense charged in the
former complaint or information.
NOTE: The prohibition against double jeopardy
refers to the same offense and not to the same act.
The offense charged in the two prosecutions must
be the same in law and in fact, because the same acts
may be violative of two or more provisions of the
criminal law.
For a dismissal to be a bar under the jeopardy clause
of the Constitution, it must have the effect of an
acquittal. (People v. Obsania, G.R. No. L-24447, 29
June 1968)
Q: Can a person convicted by a court-martial be
prosecuted again in the civil court?
A: NO. A person convicted by a court-martial cannot,
for the same offense, be prosecuted again in the civil
court. A court martial is a court, and the prosecution
of an accused before it is criminal, not
administrative; thus, 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 double jeopardy.
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(Marcos v. Chief of Staff, G.R. No. L-4663, 30 May
1951)
Q: Is there double jeopardy when the complaint
or information was dismissed before the
defendant has been arraigned and had pleaded
thereto?
A: NO. The requirement that the accused must have
been arraigned and pleaded to the charge rests
upon the idea that it is only from that moment that
the issues for trial are deemed joined. Before that,
the accused is not in danger of being validly
convicted. (People v. Apostol, 64 Phil. 676)
Q: Dora and Egor were charged with homicide in
one information. Before they could be
arraigned, the prosecution moved to withdraw
the information altogether and its motion was
granted. Can the prosecution re-file the
information although this time for murder?
(2002 BAR)
A: YES. The prosecution can re-file the information
for murder in substitution of the information for
homicide because no double jeopardy has as yet
attached. (Galvez v. Court of Appeals, G.R. No. 114046,
24 Oct. 1994)
Q: Juancho entered a plea of guilty when he was
arraigned under an information for homicide.
To determine the penalty to be imposed, the
trial court allowed Juancho to present evidence
proving any mitigating circumstance in his
favor. Juancho was able to establish complete
self-defense. Convinced by the evidence
adduced by Juancho, the trial court rendered a
verdict of acquittal. May the Prosecution assail
the acquittal without infringing the
constitutional guarantee against double
jeopardy in favor of Juancho? Explain your
answer. (2017 BAR)
A: YES. A plea of guilty is an “unconditional
admission of guilt” with respect to the offense
charged. It forecloses the right to defend oneself
from said charge and leaves the court with no
alternative but to impose the penalty fixed by law
under the circumstances. Since the accused was
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only allowed to testify in order to establish
mitigating circumstances, for the purpose fixing the
penalty, the testimony could not be taken as a trial
on the merits to determine the guilt or innocence of
the accused. Since the accused asserted self-defense
in his testimony, said assertion had the effect of
vacating his plea of guilty. The trial court should
have required him to plead anew to the charge, or at
least direct that a new plea of not guilty be entered
for him and conducted trial on the merits. This was
not done. It follows that, in effect, there having been
no standing plea at the time the court a quo
rendered its judgment of acquittal; there can be no
double jeopardy with respect to the appeal of the
prosecution. (People v. Balicasan, G.R. No. L-26376,
31 Aug. 1966)
Q: Dondon was charged with slight physical
injuries in the MTC. He pleaded not guilty and
went to trial. After the prosecution has
presented its evidence, the trial court set the
continuation of the hearing on another date. On
the date scheduled for hearing, the prosecutor
failed to appear, whereupon the court, on
motion of Dondon, dismissed the case. A few
minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court
reconsidered its order and directed Dondon to
present his evidence. Before the next date of
trial came, however, he moved that the last
order be set aside on the ground that the
reinstatement of the case had placed him twice
in jeopardy. Acceding to this motion, the court
again dismissed the case. The prosecutor then
filed an information in the RTC, charging
Dondon with direct assault based on the same
facts alleged in the information for slight
physical injuries but with the added allegation
that he inflicted the injuries out of resentment
for what the complainant had done in the
performance of his duties as chairman of the
board of election inspectors. He moved to quash
the second information on the ground that its
filing had placed him in double jeopardy. How
should Dondon’s motion to quash be resolved?
(2002 BAR)
A: Dondon’s motion to quash should be granted on
the ground of double jeopardy because the first
539
offense charged is necessarily included in the
second offense charged. Although the dismissal of
the first case was upon motion of the accused,
double jeopardy attached since the dismissal was
due to failure to prosecute which amounts to an
acquittal. (People v. Clobel, G.R. No. L-20314, 31 Aug.
1964; Esmeñe v. Pogoy, G.R. No. L-54110, 20 Feb.
1981)
Tests in determining the Identity of the Offenses
for the purpose of applying the Rule on Double
Jeopardy
1. Same offense test – Whether the offense
charged in the first information is the same
offense in the second charge, or whether the
second offense necessarily includes or is
necessarily included in the first offense charged
in the former complaint or information.
2. Same evidence test – Whether the facts alleged
in the second information, if proved, would
have been sufficient to sustain the former
information, or from which the accused may
have been acquitted or convicted.
Identity Rule
GR: There is identity between two offenses not only
when the second offense is exactly the same as the
first, but also when the second offense includes or is
necessarily included in the first offense or an
attempt or frustration thereof, or when it
necessarily includes or is necessarily included in the
offense charged in the first information.
XPNs:
1. The graver offense developed due to
supervening facts arising from the same act or
omission constituting the former charge; (Sec.
7(a), Rule 117, ROC, as amended)
2. The facts constituting the graver offense
became known or were discovered only after a
plea was entered in the former complaint or
information; (Sec. 7(b), Rule 117, ROC, as
amended) and
3. The plea of guilty to the lesser offense was made
without the consent of the prosecutor and the
offended party. (Sec. 7(c), Rule 117, ROC, as
amended)
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XPN to the XPN: The plea of guilty to a lesser
offense was made with the conformity of the
prosecutor alone because of the failure of the
offended party to appear at the arraignment despite
due notice. (Sec. 1(f), Rule 116)
NOTE: 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. (Sec. 7,
Rule 117, ROC, as amended)
The rule of identity does not also apply when the
second offense was not in existence at the time of
the first prosecution for the simple reason that in
such case, there is no possibility for the accused,
during the first prosecution, to be convicted for an
offense that was then inexistent. (Melo v. People, G.R.
No. L–3580, 22 Mar. 1950)
Instances where Double Jeopardy will not attach
1. The dismissal of a case during preliminary
investigation does not constitute double
jeopardy, preliminary investigation not being
part of the trial. (Flores v. Montemayor, G.R. No.
170146, 08 June 2011)
2. When the Court finds that the “criminal trial
was a sham” because the prosecution
representing the sovereign people in the
criminal case was denied due process. (Galman
v. Sandiganbayan, G.R. No. 72670, 12 Sept. 1986)
3. A void judgment for having been issued without
jurisdiction. No double jeopardy attaches
because a void judgment is, in legal effect, no
judgment at all. By it, no rights are
divested. Through it, no rights can be
attained. Being worthless, all proceedings
founded upon it are equally worthless. It
neither binds nor bars anyone. (People v. Court
of Appeals, G.R. No. L-54641, 28 Nov. 1980)
4. Dismissal is with the express consent of the
accused except on the following:
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a. The dismissal is based on insufficiency of
evidence; or
b. The case is dismissed for violation of the
accused’s right to speedy trial. (Benares v.
Lim, G.R. No. 173421, 14 Dec. 2006)
5. The dismissal by a competent court motu
proprio of a valid information, after the accused
has pleaded not guilty, does not bar further
prosecution for the same offense, if such
dismissal was made without prejudice to the
refiling of the case in the proper court. (People
v. Manlapas, G.R. No. L-17993, 24 Aug. 1962)
6. The rule on double jeopardy does not apply to a
controversy where one is an administrative
case, and the other is criminal in nature. (Riano,
2019, citing Icasiano v. Sandiganbayan, G.R. No.
95642, 28 May 1992)
7. In People v. Balisacan (G.R. No. L-26376, 31 Aug.
1966), the accused had first entered a plea of
guilty but subsequently testified, in the course
of being allowed to prove mitigating
circumstances, that he acted in complete self-
defense. Said testimony had the effect of
vacating his plea of guilty and the trial court did
not require him to plead anew on the charge, or
at least direct that a new plea of not guilty be
entered for him. There having been no standing
plea at the time the trial court rendered its
judgment of acquittal, there can be no double
jeopardy with respect to the appeal in this case.
8. An order of dismissal of a criminal case has the
effect of such judgment, and if given verbally, is
incomplete and does not have the effect of
acquitting the accused before it is withdrawn.
Hence, the prosecution of the case after such
verbal order of dismissal has been withdrawn
by the court, does not place the accused in
double jeopardy (Cabarroguis v. Diego, et al.,
G.R. No. L-19517, 30 Nov. 1962)
Variance Doctrine
GR: The accused may be convicted only of the crime
with which he is charged. (Riano, 2019)
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NOTE: A minor variance between the information
and the evidence does not alter the nature of the
offense, nor does it determine or qualify the crime
or penalty, so that even if a discrepancy exists, this
cannot be pleaded as a ground for acquittal. (People
v. Noque, G.R. No. 175319, 15 Jan. 2010)
XPN: When there is variance between the offense
charge in the complaint or information and that
proved, and the offense as charged is included in 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.
(Sec. 4, Rule 120, ROC, as amended)
1. The accused can be convicted of an offense only
when it is both charged and proven;
2. The mere fact that the evidence presented
would indicate that a lesser offense outside the
court’s jurisdiction was committed does not
deprive the court of its jurisdiction, which had
vested in it under the allegations in the
information. (People v. Ocaya, G.R. No. L-47448,
17 May 1978)
XPN TO XPN: Where there are facts that
supervened after the filing of the information which
change the nature of the offense.
Doctrine of Supervening Fact
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 new offense. (People v. City Court of Manila,
G.R. No. L-36342, 27 Apr. 1983)
Q: Accused was charged with and convicted of
less serious physical injuries. The accused had
already begun serving his sentence when it was
found out that the complainant’s injuries did not
heal within the period formerly estimated, and
so the provincial fiscal filed another information
for serious physical injuries. The accused moved
541
to quash this second information on the ground
of double jeopardy. Is the accused correct?
A: NO. Reversing the trial court’s order granting his
motion, the SC reiterated the Melo ruling and then
added: “That rule applies to the present case where,
after the prosecution for a lesser crime, new facts
have supervened which, together with those
already in existence at the time of the first
prosecution, have made the offense graver and the
penalty first imposed legally inadequate.” (Double
Jeopardy: The Supervening Event Doctrine, 76 SCRA
469; Melo v. People, G.R. No. L-3580, 22 Mar. 1950)
NOTE: “It is indispensable that a new fact for which
the defendant is responsible had supervened and
this new fact changes the character of the crime first
imputed to him so that, together with the facts
previously existing, it constitutes a new and distinct
offense. (Ibid.)
Effect of Double Jeopardy on the Civil Aspect of
the Case
The offended party or the accused may appeal the
civil aspect of the case because the concept of
double jeopardy evidently has reference only to the
criminal case and has no effect on the civil liability
of the accused. (Riano, 2019)
Q: Can the public prosecutor appeal the civil
aspect of a criminal case?
A: NO. A public prosecutor cannot appeal the civil
aspect of a decision in a criminal case. The acquittal
of accused ends his work and the case is terminated
as far as the prosecutor is concerned. (Cruz v. CA,
G.R. No. 123340, 29 Aug. 2002; Salazar v. People, G.R.
No. 151931, 23 Sept. 2003)
Double Jeopardy in Quasi-Offenses
Q: As a result of vehicular mishap, petitioner
was charged before the MTC of two separate
offenses in two information for:
a. Reckless Imprudence Resulting in Slight
Physical Injuries; and
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Requisites of Provisional Dismissal
1. The prosecution with the express conformity of
the accused, or the accused, moves for a
provisional (sin perjuicio) dismissal of the case;
or both the prosecution and the accused move
for a provisional dismissal of the case;
2. The offended party is notified of the motion for
a provisional dismissal of the case;
3. The court issues an order granting the motion
and dismissing the case provisionally; and
4. The public prosecutor is served with a copy of
the order of provisional dismissal of the case.
(People v. Lacson, et al., G.R. No. 149453, 01 Apr.
2003)
Rule on Provisional Dismissal of a Case
GR: Where the case was dismissed provisionally
with the consent of the accused, he cannot invoke
double jeopardy in another prosecution therefor
or where the case was reinstated on a motion for
reconsideration by the prosecution.
XPNs: The dismissal amounts to an acquittal even if
the dismissal was ordered at the instance of the
defendant if:
1. It is based on lack or insufficiency of evidence;
2. It was predicated upon the violation of the right
of the accused to a speedy trial, hence, even if
the accused gave his express consent to such
dismissal or moved for dismissal, such consent
would be immaterial as such dismissal is
actually an acquittal; and
3. There is variance between the proof and the
allegations in the complaint or information.
Express Consent
Express consent to a provisional dismissal is given
either orally or in writing. It is a positive, direct,
unequivocal consent requiring no inference or
implication to supplying its meaning. (People v.
Vergara, G.R. No. 101557-58, 28 Apr. 1993)
543
The mere inaction or silence of the accused or his
failure to object to a provisional dismissal of the
case does not amount to express consent. (People v.
Ylagan, G.R. No. L-38443, 25 Nov. 1933)
Provisional Dismissal under A.M. No. 12-11-2-SC
(Guidelines for Decongesting Holding Jails by
Enforcing the Rights of Accused Persons to Bail
and to Speedy Trial)
1. When the delays are due to the absence of an
essential witness whose whereabouts are
unknown or cannot be determined and,
therefore, are subject to exclusion in
determining compliance with the prescribed
time limits which caused the trial to exceed 180
days, the court shall provisionally dismiss the
action with the express consent of the detained
accused.
2. When the delays are due to the absence of an
essential witness whose presence cannot be
obtained by due diligence though his
whereabouts are known, the court shall
provisionally dismiss the action with the
express consent of the detained accused
provided:
a. The hearing in the case has been previously
twice postponed due to the non-
appearance of the essential witness and
both the witness and the offended party, if
they are two different persons, have been
given notice of the setting of the case for
third hearing, which notice contains a
warning that the case would be dismissed if
the essential witness continues to be
absent; and
b. There is proof of service of the pertinent
notices of hearings or subpoenas upon the
essential witness and the offended party at
their last known postal or e-mail addresses
or mobile phone numbers.
3. For the above purpose, the public or private
prosecutor shall first present during the trial
the essential witness or witnesses to the case
before anyone else. An essential witness is one
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whose testimony dwells on the presence of
some or all of the elements of the crime and
whose testimony is indispensable to the
conviction of the accused. (Sec. 10, A.M. No. 12-
11-2-SC)
Reckoning Period of One- or Two-year Period
for Revival of Criminal Case
The one- or two-year period allowed for reviving a
criminal case that has been provisionally dismissed
shall be reckoned from the issuance of the order of
dismissal. The dismissal shall become automatically
permanent if the case is not revived within the
required period. Such permanent dismissal shall
amount to an adjudication of the case on the merits.
(Sec. 14, A.M. No. 12-11-2-SC)
NOTE: Although the rule states that the order of
dismissal shall become permanent one year after
the issuance thereof without the case having been
revived, the provision should be construed to mean
that the order of dismissal shall become permanent
one year after service of the order of dismissal on
the public prosecutor who has control of the
prosecution without the criminal case having been
revived. The public prosecutor cannot be expected
to comply with the timeline unless he is served with
a copy of the order of dismissal. (Co v. New
Prosperity Plastic Products, G.R. No. 183994, 30 June
2014)
I. PRE-TRIAL
(RULE 118)
Pre-trial is a procedural device intended to clarify
and limit the basic issues between the parties and to
take the trial of cases out of the realm of surprise
and maneuvering. It thus paves the way for a less
cluttered trial and resolution of the case. (LCK
Industries v. Planters Development Bank, G.R. No.
170606, 23 Nov. 2007)
Period of Pre-Trial
It shall be held after arraignment and within 30 days
from the date the court acquires jurisdiction over
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
the person of the accused unless a shorter period is
provided for in special laws or circulars of the
Supreme Court. (Sec. 1, Rule 118, ROC, as amended)
If the accused is under preventive detention, the
pre-trial shall be held within 10 days after
arraignment unless a law provides for a shorter
period. (A.M. No. 03-1-09-SC, IB(1))
Under the Revised Guidelines for Continuous Trial
of Criminal Cases, the arraignment and pre-
trial/preliminary conference are scheduled on the
same day.
Furthermore, the Pre-Trial Order shall immediately
be served upon the parties and counsel on the same
day after its termination. (A.M. No. 15-06-10-SC)
Court in which Pre-Trial is Mandatory
Pre-trial is mandatory in all criminal cases
cognizable by the:
1. Sandiganbayan;
2. RTC;
3. Metropolitan Trial Court;
4. Municipal Trial Court in Cities;
5. Municipal Trial Court; and
6. Municipal Circuit Trial Court (Sec. 1, Rule 118,
ROC, as amended)
The holding of a pre-trial conference is mandatory
and failure to do so is inexcusable. When the law or
procedure is so elementary, such as the provisions
of the Rules of Court, not to know it or to act as if one
does not know it constitutes gross ignorance of the
law. Such ignorance of a basic rule in court
procedure, as failing to conduct a pre-trial, sadly
amounts to gross ignorance and warrants a
corresponding penalty. (National Power
Corporations. Adiong (A.M. No. RTJ-072060
[Formerly OCA IPI No. 06-2498-RTJ]), 27 Jul. 2011)
Matters to be Considered during Pre-Trial
1. Plea bargaining;
2. Stipulation of facts;
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NOTE: In order for the accused to be bound, it
must be signed by him.
3. Marking for identification of evidence of
parties;
NOTE: No evidence shall be allowed to be
presented and offered during the trial other
than those identified and marked during the
pre-trial except when allowed by the court for
good cause shown. (I-B (2), AM No. 03-1-09-SC)
4. Waiver of objections to admissibility of
evidence;
5. Modification of the order of the trial if one of the
accused admits the charge but interposes a
lawful defense (reverse trial); and
6. Such matters as will promote a fair and
expeditious trial of the criminal and civil
aspects of the case. (Sec. 1, Rule 118, ROC, as
amended)
NOTE: If the accused has pleaded not guilty to the
crime charged, he may state whether he interposes
a negative or affirmative defense. A negative
defense shall require the prosecution to prove the
guilt of the accused beyond reasonable doubt, while
an affirmative defense may modify the order of
trial and require the accused to prove such defense
by clear and convincing evidence. (Sec. 3, R.A. No.
8493, Speedy Trial Act)
Plea Bargaining
It is the process whereby the accused, the offended
party and the prosecution 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 one or
some of the counts of a multi-count indictment in
return for a lighter sentence than that for the graver
charge.
In this jurisdiction, plea bargaining has been defined
as “a process whereby the accused and the
prosecution work out a mutually satisfactory
disposition of the case subject to court approval.”
(Estipona Jr. v. Lobrigo, G.R. No. 226679, 15 Aug.
2017)
545
It usually involves the defendant’s pleading guilty to
a lesser offense or to only one or some of the counts
of a multi-count indictment in return for a lighter
sentence than that for the graver charge. (People vs.
Mamarlon, GR. No. 137554, 01 Oct. 2003)
Duty of the Judge when Plea Bargaining is
agreed upon
During the pre-trial, the trial judge shall consider
plea-bargaining arrangements, except in cases for
violations of the Comprehensive Dangerous Drugs
Act regardless of the imposable penalty. (Sec. 23,
R.A. No. 9165)
Duty of the Judge when Plea Bargaining fails
1. Adopt the minutes of preliminary conference as
part of the pre-trial proceedings, confirm
markings of exhibits or substituted photocopies
and admissions on the genuineness and due
execution of documents and list object and
testimonial evidence;
2. Scrutinize every allegation of the information
and the statements in the affidavits and other
documents which form part of the record of the
preliminary investigation and other documents
identified and marked as exhibits in
determining further admissions of facts,
documents and in particular as to the following:
a. The identity of the accused;
b. Court’s territorial jurisdiction relative to
the offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of
documents;
f. The cause of death or injury, in proper
cases;
g. Adoption of any evidence presented during
the preliminary investigation;
h. Disclosure of defenses of alibi, insanity,
self-defense, exercise of public authority
and justifying or exempting circumstances;
and
i. Such other matters that would limit the
facts in issue.
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3. Define factual and legal issues;
4. Ask parties to agree on the specific trial dates
and adhere to the flow chart determined by the
court which shall contain the time frames for
the different stages of the proceeding up to
promulgation of decision and use the time
frame for each stage in setting the trial dates;
5. Require the parties to submit to the Branch COC
the names, addresses and contact numbers of
witnesses that need to be summoned by
subpoena; and
6. Consider modification of order of trial if the
accused admits the charge but interposes a
lawful defense. (A.M. No. 03-1-09-SC)
Duty of the Judge before Pre-trial Conference
The judge before pre-trial conference must study
the following:
1. Allegations of the information;
2. Statements in the affidavits of witnesses; and
3. Other documents which form part of the record
of the preliminary investigation. (A.M. No. 03-1-
09-SC)
Duty of the Branch Clerk of Court during the
Preliminary Conference
During the preliminary conference, the branch clerk
of court shall:
1. Assist the parties in reaching a settlement of the
civil aspect of the case;
2. Mark the documents to be presented as exhibits
and copies thereof attached to the records after
comparison;
3. Ascertain from the parties the undisputed facts
and admissions on the genuineness and due
execution of documents marked as exhibits;
and
4. Consider such other matters as may aid in the
prompt disposition of the case. (A.M. No. 03-1-
09-SC)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
NOTE: The proceedings during the preliminary
conference shall be recorded in the minutes of
preliminary conference to be signed by both parties
and counsel. (A.M. No. 03-1-09-SC)
Order of Pre-Trial Conference
Order for pre-trial conference must contain orders:
1. Requiring the private offended party to appear
thereat for purposes of plea-bargaining and for
other matters requiring his presence;
2. Referring the case to the branch clerk of court, if
warranted, for a preliminary conference to be
set at least 3 days prior to the pre-trial to mark
the documents or exhibits to be presented by
the parties and copies thereof to be attached to
the records after comparison and to consider
other matters as may aid in its prompt
disposition; and
3. Informing the parties that no evidence shall be
allowed to be presented and offered during the
trial other than those identified and marked
during the pre-trial except when allowed by the
court for good cause shown. In mediatable
cases, the judge shall refer the parties and their
counsel to the Philippine Mediation Center unit
for purposes of mediation if available. (A.M. No.
03-1-09-SC)
What the Court should do when Prosecution and
Offended Party agree to the Plea offered by the
Accused
The court shall:
1. Issue an order which contains the plea
bargaining arrived at;
2. Proceed to receive evidence on the civil aspect
of the case; and
3. Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence. (A.M. No. 03-1-09-
SC)
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1. PRE-TRIAL AGREEMENT
All agreements or admissions made or entered into
during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel;
otherwise, the same cannot be used against the
accused. (Sec. 2, Rule 118, ROC, as amended) (2004
BAR)
NOTE: The court shall approve the agreements
covering the matters in the pre-trial conference.
Pre-Trial Agreement as Evidence
Requisites before a pre-trial agreement may be used
as evidence:
1. It is reduced in writing; and
2. Signed by the accused and his counsel.
The agreements in relation to matters referred to in
Sec. 1, Rule 118 are subject to the approval of the
court. (Sec. 2, Rule 118, ROC, as amended) Provided,
that the agreement on the plea of the accused to a
lesser offense may only be revised, modified, or
annulled by the court when the same is contrary to
law, public morals, or public policy. (Sec. 3, R.A. No.
8493, Speedy Trial Act)
NOTE: The requirement of Sec. 2, Rule 118 of the
Revised Rules on Criminal Procedure is intended to
further safeguard the rights of the accused against
improvident or unauthorized agreements or
admissions which his counsel may have entered
into, or which any person may have ascribed to the
accused without his knowledge, as he may have
waived his presence at the pre-trial conference.
(People v. Uy, G.R. No. 128046, 07 Mar. 2000)
Stipulation of facts during pre-trial is allowed by
Rule 118 of the Revised Rules of on Criminal
Procedure. Sec. 2 of Rule 118, meanwhile, prescribes
that all agreements or admissions made or entered
during the pre-trial conference shall be reduced in
writing and signed by the accused and counsel,
otherwise, they cannot be used against the accused.
In this case, while it appears that the pre-trial
agreement was signed only by the prosecution and
defense counsel, the same may nevertheless be
547
admitted given that the defense failed to object to its
admission. (People v. Likiran, G.R. No. 201858, 04
June 2014)
Amendment of Pre-Trial Agreement
Pre-trial may be amended on the grounds of:
1. Agreement; or
2. Palpable mistake.
2. NON-APPEARANCE DURING PRE-TRIAL
Effect of Non-appearance of Counsel for the
Accused or the Prosecutor during the Pre-Trial
without Valid Justification
The court may impose proper sanctions or penalties
in the form of reprimand, fines or imprisonment, if
the counsel does not offer an acceptable excuse for
his lack of cooperation. (Sec. 3, Rule 118, ROC, as
amended; Sec. 5, R.A. No. 8493, Speedy Trial Act)
Rationale of the Exclusion of the Accused in the
Mandatory Appearance during Pre-trial
The principal reason why the accused is not
included in the mandatory appearance is the fear
that to include him is to violate his constitutional
right to remain silent. (Sec. 12(1), Art. III, 1987
Constitution)
NOTE: Unless otherwise required by the court,
personal appearance of the accused at the
conference is not indispensable. This is aside from
the consideration that the accused may waive his
presence at all stages of the criminal action, except
at the arraignment, promulgation of judgment or
when required to appear for identification.
(Regalado, 2008)
3. PRE-TRIAL ORDER
Pre-Trial Order
It is an order issued by the court reciting the actions
taken, the facts stipulated, and the evidence marked
UNIVERSITY OF SANTO TOMAS
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VII. CRIMINAL PROCEDURE

Time Limit for the Trial of Criminal Cases
GR: Trial shall not exceed 180 days from the first
day of trial. (Sec. 2, Rule 119, ROC, as amended)
XPNs:
1. Those governed by the rules on summary
procedure;
2. Those where the penalty prescribed by law
does not exceed 6 months imprisonment or a
fine of P1,000 or both; and
3. Those authorized by the Chief Justice of the
Supreme Court. (Sec. 6, R.A. No. 8493, Speedy
Trial Act)
a. Any period of delay resulting from the absence
or unavailability of an essential witness;
NOTE: An essential witness shall be considered
absent when his whereabouts are unknown or
undetermined by due diligence. He shall be
considered unavailable whenever his whereabouts
are known but his presence for trial cannot be
obtained by due diligence.
b. Any period of delay resulting from the mental
incompetence or physical inability of the
accused to stand trial;

Commencement of trial may be extended based on c. If the information is dismissed upon motion of
the following conditions: the prosecution and thereafter a charge is filed
against the accused for the same offense, any
1. For the 180 days, for the first 12 calendar period of delay from the date the charge was
month period from the effectivity of the law; dismissed to the date the time limitation would
2. 120 days for the second 12-month period; and commence to run as to the subsequent charge
3. 80 days for the third 12-month period. (Sec. 9, had there been no previous charge;
R.A. No. 8493)
d. A reasonable period of delay when the accused
Exclusions in Computation of Time within which is joined for trial with a co-accused over whom
Trial must Commence the court has not acquired jurisdiction, or, as to
whom the time for trial has not run and no
1. Any periods of delay resulting from other motion for separate trial has been granted; and
proceedings concerning the accused, including
but not limited to the following: e. Any period of delay resulting from a
continuance granted by any court motu proprio,
a. Examination of the physical and mental or on motion of either the accused or his
condition of the accused; counsel, or the prosecution, if the court granted
b. Proceedings with respect to other criminal the continuance on the basis of its findings set
charges against the accused; forth in the order that the ends of justice served
c. Extraordinary remedies against by taking such action outweigh the best interest
interlocutory orders; of the public and the accused in a speedy trial.
d. Pre-trial proceedings; provided, that the (Sec. 3, Rule 119, ROC, as amended)
delay does not exceed 30 days;
e. Orders of inhibition, or proceedings Q: In a petition assailing the validity of the order
relating to change of venue of cases or of the trial court, the petitioner insists that the
transfer from other courts; judge acted with grave abuse of discretion when
f. A finding of the existence of a prejudicial it dismissed the criminal case against the
question; or accused on the ground that that the 30-day time
g. Those delays reasonably attributable to limit set by Rule 119 had been breached. It is
any period, not to exceed 30 days, during further claimed by the petitioner that their
which any proceeding concerning the pending petition for transfer of venue should
accused is actually under advisement. interrupt proceedings and, therefore, halt the
running of the 30-day time limit. Is the petition
meritorious?

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A: NO. The delays that may be excluded from the
time limit in Sec. 3, Rule 119 within which trial must
commence are those resulting from proceedings
concerning the accused. The time involved in the
proceedings in a petition for transfer of venue can
only be excluded from said time limit if it was the
accused who instituted the same. Further, the
petition for transfer of venue cannot interrupt
proceedings unless a TRO or writ of preliminary
injunction has been issued in accordance with Sec.
7, Rule 65 as said petition is akin to a petition for
certiorari. (Mari v. Gonzales, G.R. No. 187728, 12 Sept.
2011)
Remedies of the Accused when a Prosecuting
Officer without just cause secures
postponements of the trial against his protest
beyond a reasonable period of time:
1. Mandamus to compel a dismissal of the
information; or
2. If he is restrained of his liberty, by habeas
corpus to obtain his freedom.
Acts of the Counsel, Attorney, or Prosecutor
which would warrant a sanction
1. Knowingly allowing 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, knowing it to be
frivolous and without merit;
3. Makes a statement in order to obtain
continuance which he knows to be false, and
which is material to the granting of a
continuance; and
4. Willfully fails to proceed to trial without
justification. (Sec. 8, Rule 119, ROC, as amended)
Order of Trial in Criminal Cases
In criminal cases, the trial shall proceed in the
following order:
1. The prosecution shall present evidence to
prove the charge and, in the proper case, the
civil liability.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
NOTE: In Dangerous Drugs cases, it is the duty
of the prosecution to present a complete picture
detailing the buy-bust operation—from the
initial contact between the poseur-buyer and
the pusher, the offer to purchase, the promise
or payment of the consideration, until the
consummation of the sale by the delivery of the
illegal subject of sale. (People v. Ong, G.R. No.
175940, 06 Feb. 2008)
2. The accused may present evidence to prove his
defense, and damages, if any, arising from the
issuance of a provisional remedy in the case.
3. The prosecution may present rebuttal evidence
unless the court, in furtherance of justice,
permits them to present additional evidence
bearing upon the main issue.
NOTE: Rebuttal evidence is any competent
evidence to explain, repel, counteract or
disprove the adversary’s proof. It is receivable
only where new matters have been developed
by the evidence of one of the parties and is
generally limited to a reply to new points.
4. The accused may present rebuttal evidence
unless the court permits them to present
additional evidence bearing upon the main
issue.
5. Upon admission of the evidence of the parties,
the case shall be deemed submitted for decision
unless the court directs them to argue orally or
to submit written memoranda. (Sec. 11, Rule
119, ROC, as amended)
NOTE: The order of the trial may be modified when
the accused admits the act or omission charged in
the complaint or information but interposes a
lawful defense. (Sec. 11(e), Rule 119, ROC, as
amended)
Q: What is reverse trial and when may it be
resorted to? Explain briefly. (2012 BAR)
A: When the accused admits the act or omission
charged in the complaint or information but
interposes a lawful defense, the trial court may
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allow the accused to present his defense first and
thereafter give the prosecution an opportunity to
present its rebuttal evidence. A departure from the
order of the trial is not reversible error as where it
was agreed upon or not seasonably objected to, but
not where the change in order of the trial was timely
objected by the defense.
NOTE: Where the order of the trial set forth was not
followed by the court to the extent of denying the
prosecution an opportunity to present evidence, the
judgment is a nullity. If there is not enough evidence
to prove the accused’s guilt beyond reasonable
doubt, then the defense should file demurrer to
evidence.
Case Deemed Submitted for Decision
Upon the admission of the parties’ evidence-in-
chief, rebuttal and sur-rebuttal proof, the case is
deemed submitted for decision unless the court
directs them to argue their respective memoranda.
Mistake in Charging the Proper Offense
GR: When it becomes manifest at any time before
judgment that a mistake has been made in charging
the proper offense, the accused cannot be convicted
of the offense charged or any other offense
necessarily included therein.
XPN: The accused shall not be discharged if there
appears to be a good cause to detain him. In such
case, the court shall commit the accused to answer
for the proper offense and dismiss the case upon
filing of the proper information. (Sec. 19, Rule 119,
ROC, as amended)
NOTE: This rule is predicated on the fact that an
accused has the right to be informed of the nature
and cause of the accusation against him.
Reopening of the Proceedings
At anytime before finality of 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
553
be terminated within 30 days from the order
granting it. (Sec. 24, Rule 119, ROC, as amended)
The case may be reopened upon the showing of the
following requirements:
1. The reopening must be before finality of a
judgment of conviction;
2. The order is issued by the judge on his own
initiative or upon motion;
3. The order is issued only after the hearing is
conducted;
4. The order intends to prevent a miscarriage of
justice; and
5. The presentation of additional and/or further
evidence should be terminated within thirty
days from the issuance of the order. (Cabales v.
Maceda, 516 SCRA 303, 20 Feb. 2007)
Instances when Presence of Accused is required
by Law
In the following instances, the presence of the
accused is required:
1. At arraignment and plea, whether of innocence
or of guilt; (Sec. 1(b), Rule 116, ROC, as amended)
2. During trial whenever necessary for
identification purposes; (Sec. 1(c), Rule 115,
ROC, as amended) and
3. At the promulgation of sentence, unless it is for
a light offense, in which case, the accused may
appear by counsel or representative. (Sec. 6,
Rule 120, ROC, as amended)
Waiver of Right
GR: The accused may waive his presence at the trial
pursuant to the stipulations set forth in his bail.
(Sec. 1(c), Rule 115, ROC, as amended)
XPN: Unless his presence is specifically ordered by
the court for purposes of identification. (Sec. 1(c),
Rule 115, ROC, as amended)
Duty of the Public Attorney when Accused is
imprisoned
It shall be his duty to do the following:
UNIVERSITY OF SANTO TOMAS
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a. 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 advice the
prisoner of his right to demand trial.
b. Upon receipt of that notice, the custodian of that
prisoner shall promptly advice the prisoner of
the charge and of his right to demand trial. If at
any time 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.
c. Upon receipt of such notice, the public attorney
shall promptly seek to obtain the presence of
the prisoner for trial.
d. 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. (Sec. 7, Rule 119, ROC, as
amended)
Conduct of Trial for Several Accused
GR: When two or more persons are jointly charged
with an offense, they shall be tried jointly. This rule
is so designed as to preclude a wasteful expenditure
of judicial resources and to promote an orderly and
expeditious disposition of criminal prosecutions.
XPN: The court, in its discretion and upon motion of
the prosecutor or any of the defendants, may order
a separate trial for one or more accused. (Sec. 16,
Rule 119, ROC, as amended)
NOTE: In the interest of justice, a separate trial may
be granted even after the prosecution has finished
presenting its evidence in chief. (Joseph v. Villaluz,
G.R. No. L-45911, 11 Apr. 1979)
If a separate trial is granted, the testimony of one
accused imputing the crime to his co-accused is not
admissible against the latter. In joint trial, it would
be admissible if the latter had an opportunity for
cross-examination.
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Requisites before a Trial can be Suspended on
Account of Absence of Witness
To justify delay or suspension of trial by reason of
the absence of a witness, the following must be
present:
1. Witness is essential and appears to the court to
be so;
NOTE: “Essential” means indispensable,
necessary, or important in the highest degree.
(Riano, 2019)
2. His absence is brought by either of the
following:
a. His whereabouts are unknown; or
b. His whereabouts cannot be determined by
due diligence.
NOTE: A witness shall be considered unavailable
even if his whereabouts are known but his presence
for the trial cannot be obtained by due diligence.
(Sec. 3(b), Rule 119, ROC, as amended)
Effect of Absence of Witness
Any period of delay resulting from the absence or
unavailability of an essential witness shall be
excluded in computing the time within which trial
must commence. (Sec. 3, Rule 119, ROC, as amended)
Appearance of Material Witness
Either party may, upon motion, secure an order
from the court for a material witness to post bail for
such sum as maybe deemed proper, if the court is
satisfied upon either proof or oath that a material
witness will not testify when required. (Sec. 14, Rule
119, ROC, as amended)
If the witness refuses to post bail, the court shall
commit him to prison until he compiles or is legally
discharged after his testimony has been taken.
(Ibid.)
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Q: Assailing the validity of the decisions of both
trial and appellate court, the petitioner
questions the decisions of both courts
convicting him for violation of B.P. 22 on the
ground that he was denied due process of law as
the trial court proceeded with his trial and
promulgated the assailed decision in absentia. Is
the petition meritorious?
A: NO. The holding of trial in absentia is authorized
by law. Under Sec. 14 (2), Art. III of the 1987
Constitution, “after arraignment, trial may proceed
notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable.” The failure of the
accused to appear before the court in spite of notice
has been considered a waiver of their right to be
present at their trial, and the inability of the court to
notify them of the subsequent hearings did not
prevent it from continuing with their trial. They
were deemed to have received notice. Thereafter,
the trial court had the duty to rule on the evidence
presented by the prosecution against all the accused
and to render its judgment accordingly. (Bernardo v.
People, G.R. No. 166980, 04 Apr. 2007)
Remedy when Accused is not brought to Trial
within the Prescribed Period
If the accused is not brought to trial within the time
limit required by Sec. 1(g), Rule 116, and Sec. 1, as
extended by Sec. 6, Rule 119, the information may be
dismissed on motion of the accused on the ground
of denial of his right to speedy trial. (Sec. 9, Rule 119,
ROC, as amended)
NOTE: The dismissal shall be subject to the rules on
double jeopardy. (Ibid.)
Burden of proving the Motion
The accused has 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 Sec. 3, Rule 117, ROC, as amended.
(Ibid.)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Failure of the Accused to move for Dismissal
prior to Trial
The failure of the accused shall constitute a waiver
of the right to dismiss under Sec. 9, Rule 117 of the
Revised Rules on Criminal Procedure.
2. EXAMINATION OF WITNESS
FOR THE PROSECUTION
When it satisfactorily appears that a witness for the
prosecution is too sick or infirm to appear at the
trial as directed by the court, or has to leave the
Philippines with no definite date of returning, he
may forthwith be conditionally examined before the
court where the case is pending. Such examination,
in the presence of the accused, or in his absence
after reasonable notice to attend the examination
has been served on him, shall be conducted in the
same manner as an examination at the trial. Failure
or refusal of the accused to attend the examination
after notice shall be considered a waiver. The
statement taken may be admitted in behalf of or
against the accused. (Sec. 15, Rule 119, ROC, as
amended)
In order for the testimony of the prosecution
witness be taken before the court where the case is
being heard, it must be shown that the said
prosecution witness is either: (a) too sick or infirm
to appear at the trial as directed by the order of the
court, or; (b) has to leave the Philippines with no
definite date of returning. (People v. Sergio, G.R. No.
240053, 09 Oct. 2019, J. Hernando)
PEOPLE v. SERGIO
G.R. No. 240053, 09 Oct. 2019
Q: In October 2010, the Supreme Court of
Indonesia affirmed the conviction of Mary Jane
for drug trafficking and sentenced her to death
by firing squad. Meanwhile, in the Philippines,
Cristina and Julius were arrested by the
operatives of the Anti-Human Trafficking
Division of the NBI, and were charged with
qualified trafficking in person and with the
crime of illegal recruitment. Upon arraignment,
Cristina and Julius entered a plea of “not guilty”
on all charges.
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The PDEA, PNP Crime Laboratory, and the DFA
went to Wirugonan Prison to interview Mary
Jane. She executed a document known as
“Sinumpaang Salaysay ni Mary Jane Fiesta
Veloso,” where she maintained her innocence
and narrated how she was recruited by Cristina
and Julius. She alleged that while in Malaysia,
Cristina gave Mary Jane the luggage, which was
unusually heavy but, upon checking, she found
nothing inside. The luggage was the same bag
she used on her trip to Indonesia.
The Philippine Government requested the
Indonesian Government to suspend the
scheduled execution of Mary Jane as her
testimony is vital in the prosecution of Cristina
and Julius. The Indonesian authorities however
imposed some conditions relative to the taking
of Mary Jane’s testimony. Thereafter, the State,
through the OSG, filed a “Motion for Leave of
Court to Take the Testimony of Complainant
Mary Jane Veloso by Deposition Upon Written
Interrogatories under Rule 23 of the Rules of
Court.”
Cristina and Julius objected to the motion
asserting that such method of taking testimony
will violate their right to confront the witness,
Mary Jane, and that depositions under Rules 23
is limited only in civil cases. Can Mary Jane
Veloso, who was sentenced to death by the
Indonesian Government and who is presently
confined in a prison facility in Indonesia, testify
by way of deposition without violating the
constitutional right to confrontation of a witness
by the accused?
A. YES. It is true that Cristina and Julius have no
opportunity to confront Mary Jane face to face in
light of the prevailing circumstance. However, the
terms and conditions laid down by the trial court
ensure that they are given ample opportunity to
cross-examine Mary Jane by way of written
interrogatories so as not to defeat the first purpose
of their constitutional right. In this case, the trial
court required Cristina and Julius, through their
counsel, to file their comment and may raise
objections to the proposed questions in the written
interrogatories submitted by the prosecution. The
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trial court judge shall promptly rule on the
objections. Thereafter, only the final questions
would be asked by the Consul of the Philippines in
Indonesia or his designated representative. Also,
the trial court judge will be present during the
conduct of written interrogatories on Mary Jane.
This will give her ample opportunity to observe and
to examine the demeanor of the witness closely.
Although the deposition is in writing, the trial court
judge can still carefully perceive the reaction and
deportment of Mary Jane as she answers each
question propounded to her both by the
prosecution and the defense. (People v. Sergio, G.R.
No. 240053, 09 Oct. 2019, J. Hernando)
3. REQUISITES FOR DISCHARGE OF ACCUSED
TO BECOME A STATE WITNESS
State Witness
He is one of two or more persons jointly charged
with the commission of a crime but who is
discharged with his consent as such accused so that
he may be a witness for the State. (People v. Ferrer,
G.R. No. 102062, 14 Mar. 1996)
Requisites before an Accused may become a
State Witness:
1. Two or more accused are jointly charged with
the commission of an offense;
2. The motion for discharge is filed by the
prosecution before it rests its case;
3. The prosecution is required to present evidence
and the sworn statement of each proposed state
witness at a hearing in support of the discharge;
4. The accused gives his consent to be a state
witness; and
5. The trial court is satisfied that:
a. There is absolute necessity for the
testimony of the accused whose
discharge is requested;
b. There is no other direct evidence available
for the proper prosecution of the offense
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committed, except the testimony of the said
accused;
c. The testimony of said accused can be
substantially corroborated in its material
points;
d. Said accused does not appear to be the most
guilty; and
e. Said accused has not at any time been
convicted of any offense involving moral
turpitude. (Sec. 17, Rule 119, ROC, as
amended)
When an Accused be discharged to become a
State Witness
The discharge can be at any time from filing to the
time the defense starts to offer any evidence.
(People v. Aninon, G.R. No. L-39083, 06 Mar. 1988)
Q: May an accused who has pleaded guilty to an
offense still be discharged to become a state
witness?
A: YES, for as long as he or she has not yet been
sentenced. The basic reason for the rule is that the
discharge of an accused is a matter of discretion.
(People v. Ocimar, G.R. No. 94555, 17 Aug. 1992)
The guidelines however in the discharge of an
accused must be complied with. Another reason is
that the prosecutor should know better than the
court and the defense for that matter, as to who
among the accused would best qualify to be
discharged to become a state witness. The public
prosecutor knows the evidence in his possession
ahead of all the rest. He knows he needs to establish
his case. (Albano, 2020)
Q: Petitioner claims that the public respondent
judge erred when it ordered the discharge of
private respondents as state witnesses when the
latter were already charged along with the other
accused, including him, before they were
admitted to the Witness Protection under R.A.
No. 6981. Petitioner argues that if this were to be
allowed, the same is tantamount to permitting
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the prosecution to supplant with its own the
court’s exercise of discretion on how a case over
which it has acquired jurisdiction will proceed.
Is the petition meritorious?
A: NO. The discharge of an accused under R.A. No.
6981 is separate and distinct from Rule 119. Rule
119 of the Revised Rules on Criminal Procedure does
not support the proposition that the power to
choose who shall be a state witness is an inherent
judicial prerogative. The Rules of Court have never
been interpreted to be beyond change by legislation
designed to improve the administration of our
justice system. R.A. No. 6981 is one of the much-
sought penal reform laws to help government in its
uphill fight against crime. What is only required
under R.A. No. 6981 is compliance with Sec. 14, Rule
110 requiring that the exclusion of the accused be
made only upon motion by the prosecutor, with
notice to the offended party and with leave of court.
(Yu v. Judge RTC of Tagaytay City, G.R. No. 142848, 30
June 2006)
4. EFFECTS OF DISCHARGE OF ACCUSED
AS STATE WITNESS
GR:
1. Discharge of accused operates as an acquittal
and bar to further prosecution for the same
offense; (Sec. 18, Rule 119, ROC, as amended)
2. Evidence adduced in support of the discharge
shall automatically form part of the trial; (Sec.
17, Rule 119, ROC, as amended) and
3. If the court denies the motion to discharge the
accused as State witness, his sworn statement
shall be inadmissible in evidence. (Sec. 17, Rule
119, ROC, as amended)
XPNs:
1. When the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of his
discharge; (Sec. 18, Rule 119, ROC, as amended)
2. Failure to testify refers exclusively to
defendant’s will or fault; and
3. Where an accused who turns into a state
witness on a promise of immunity but later
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i. if the motion is filed without prior
leave of court;
ii. when preliminary investigation is not
required under Sec. 8, Rule 112 of the
Rules of Court; and
iii. when the regular preliminary
investigation is required and has been
actually conducted, and the grounds
relied upon in the motion are not
meritorious, such as issues of
credibility, admissibility of evidence,
innocence of the accused, or lack of due
process when the accused was actually
notified, among others.
d. Motion to Quash information when the
ground is not one of those stated in Sec. 3,
Rule 117 of the Rules of Court.
e. Motion for Bill of particulars that does not
conform to Sec. 9, Rule 116 of the Rules of
Court.
f. Motion to Suspend the arraignment based
on grounds not stated under Sec. 11, Rule
116 of the Rules of Court.
g. Petition to Suspend the criminal action on
the ground of prejudicial question, when no
civil case has been filed, pursuant to Sec. 7,
Rule 111 of the Rules of Court.
h. Motion for Postponement, except if it is
based on acts of God, force majeure or
physical inability of the witness to appear
and testify.
3. Meritorious Motions – Motions that allege
plausible grounds supported by relevant
documents and/ or competent evidence, except
those that are already covered by the Revised
Guidelines, are meritorious motions, such as:
a. Motion to withdraw information, or to
downgrade the charge in the original
information, or to exclude an accused
originally charged therein, filed by the
prosecution as a result of a reinvestigation,
reconsideration, and review;
563
b. Motion to quash warrant of arrest;
c. Motion to suspend arraignment on the
ground of an unsound mental condition;
(Sec. 11(a), Rule 116, ROC, as amended)
d. Motion to suspend proceedings on the
ground of a prejudicial question where a
civil case was filed prior to the criminal
case; (Sec. 11(b), Rule 116, ROC, as
amended)
e. Motion to quash information on the
grounds that the facts charged do not
constitute an offense, lack of jurisdiction,
extinction of criminal action or liability, or
double jeopardy; (Sec. 3, pars. (a), (b), (g),
and (i), Rule 117, ROC, as amended)
f. Motion to discharge accused as a state
witness; (Sec. 17, Rule 119, ROC, as
amended)
g. Motion to quash search warrant under (Sec.
14, Rule 126, ROC, as amended) or motion to
suppress evidence; and
h. Motion to dismiss on the ground that the
criminal case is a Strategic Lawsuit Against
Public Participation (SLAPP) under Rule 6
of the Rules of Procedure for
Environmental Cases.
Rules on Motion for Postponement
1. A motion for postponement may be written or
oral;
2. It shall be at all times accompanied by the
original receipt from the Office of the Clerk of
Court evidencing payment of the postponement
fee under Sec. 21(b), Rule 141 of the Rules of
Court;
3. The original receipt of payment shall be
submitted to either at the time of the filing of
said motion or not later than the next hearing
date; and
4. The Clerk of Court shall not accept the motion
unless accompanied by the original receipt.
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GR: Motion for postponement is prohibited
XPN: If it is based on acts of God, force majeure or
physical inability of the witness to appear and
testify.
NOTE: If the motion is granted based on such
exceptions, the moving party shall be warned that
the presentation of its evidence must still be
finished on the dates previously agreed upon.
Free Legal Assistance
If a party fails to qualify to avail of the services of the
Public Attorney's Office:-
1. The Integrated Bar of the Philippines Local
Chapter shall provide free legal assistance to
said party;
2. The IBP Local Chapter shall submit to the
Executive Judges a list of IBP-local lawyers who
may be appointed by the courts to act as counsel
de officio in such cases; and
3. The lists shall be disseminated among all the
trial courts in the station. (Par. 3, A.M. No. 15-06-
10-SC)
NOTE: The IBP Local Chapter is also duty-bound to
submit the names of local lawyers to the Executive
Judge who may be appointed as counsel de officio.
(Moya, 2018)
Private Prosecutor
In cases where only the civil liability is being
prosecuted by a private prosecutor, the head of the
prosecution office must issue in favor of the private
prosecutor a written authority to try the case even
in the absence of the public prosecutor. The written
authority must be submitted to the court prior to
the presentation of evidence by the private
prosecutor in accordance with Sec. 5, Rule 110 of the
Revised Rules on Criminal Procedure.
With this authority on record, the court may set the
trial in the case and in other cases tried by private
prosecutors with delegated authority on separate
days when the presence of the public prosecutor
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2023 GOLDEN NOTES
may be dispensed with. (Par. 4, A.M. No. 15-06-10-
SC)
The prosecution of crimes lies with the executive
department of the government whose principal
power and responsibility is to see that the laws of
the land are faithfully executed. A necessary
component of this power to execute the laws is the
right to prosecute their violators. (Punzalan v. Plata,
G.R. No. 160316, 02 Sept. 2013)
The above mandate is founded on the theory that a
crime is a breach of the security and peace of the
people at large, an outrage against the very
sovereignty of the state. It follows that a
representative of the State shall direct and control
the prosecution of the offense. (Tan v. Gallardo, G.R.
No. L-41213-14, 05 Oct. 1976)
Consolidations
1. Newly filed Cases – When newly filed criminal
cases involving offenses based on the same facts
or forming part of a series of offenses of similar
character, are accompanied by a motion for
consolidation filed by the Office of the
Prosecutor, the Executive Judge shall cause the
raffle to only one court which shall then resolve
said motion for consolidation, preferably on the
date of the arraignment and in the presence of
the accused and counsel.
2. Pending Cases with Multiple Accused – In
cases involving multiple accused where a
subsequent information is filed involving an
accused who has been subjected to further
investigation by the Office of the Prosecutor
over an incident which has the same subject
matter as a prior information/s against
different accused, said subsequent case when
filed accompanied by a motion for
consolidation from the Office of the Prosecutor
shall no longer be raffled.
The subsequent case shall be assigned directly
by the Executive Judge to the court where the
earlier case is pending. If the earlier case is
already at the trial stage and witnesses have
been presented, the parties may be allowed to
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VII. CRIMINAL PROCEDURE
adopt the evidence so far presented, without
prejudice to additional direct examination
questions and cross-examination questions.
(Par. 5, A.M. No. 15-06-10-SC)
Archiving of Cases
The archiving of cases shall be done within the
period prescribed under the Guidelines in the
Archiving of Cases under SC Administrative Circular
No. 7-A-92, as restated in OCA Circular No. 89-2004.
A criminal case shall be archived only if, after the
issuance of the warrant of arrest, the accused
remains at large for six (6) months from the delivery
of the warrant to the proper peace officer.
Such case shall likewise be archived when
proceedings therein are ordered suspended for an
indefinite period because:
1. The accused appears to be suffering from an
unsound mental condition which effectively
renders him unable to fully understand the
charge against him and to plead intelligently, or
to undergo trial, and he has to be committed to
a mental hospital;
2. A valid prejudicial question in a civil action is
invoked during the pendency of the criminal
case, unless the civil and criminal cases are
consolidated;
3. An interlocutory order or incident in the
criminal case is elevated to, and is pending
resolution/decision for an indefinite period
before a higher court which has issued a
temporary restraining order or writ of
preliminary injunction; and
4. When the accused has jumped bail before
arraignment and cannot be arrested by the
bondsman. (Par. 6, A.M. No. 15-06-10-SC)
Revival of Provisionally Dismissed Cases
Revival of provisionally dismissed cases shall
conform to the requisites and the periods provided
for under Sec. 8, Rule 117 of the Revised Rules on
Criminal Procedure. Provisional dismissal of
565
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.
Provisional dismissal of offenses punishable by
imprisonment of more than six (6) years, shall
become permanent two (2) years after the issuance
of the order without the case having been revived.
(Par. 7, A.M. No. 15-06-10-SC)
Requisites:
1. The prosecution with the express conformity of
the accused, or the accused, moves for a
provisional dismissal (sin perjuicio) of his case;
or both the prosecution and the accused moved
for its provisional dismissal
2. The offended party is notified of the motion for
a provisional dismissal of the case;
3. The court issues an order granting the motion
and dismissing the case provisionally; and
4. The public prosecutor is served with a copy of
the order of provisional dismissal of the case.
(Bonsubre, Jr v. Pedro, G.R. No. 205952, 11 Feb.
2015)
Arraignment and Pre-trial
1. Schedule of Arraignment and Pre-trial
Once the court has acquired jurisdiction over
the person of the accused, the arraignment of
the accused and the pre-trial shall be set within
10 calendar days from date of the court's
receipt of the case for a detained accused, and
within 30 calendar days from the date the court
acquires jurisdiction (either by arrest or
voluntary surrender) over a non-detained
accused, unless a shorter period is provided by
special law or Supreme Court circular.
The court must set the arraignment of the
accused in the commitment order, in the case of
detained accused, or in the order of approval of
bail, in any other case.
For this purpose, where the Executive Judge
and Pairing Judges act on bail applications in
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cases assigned to other courts, they shall
coordinate with the courts to which the cases
are actually assigned for scheduling purposes.
Once the court has acquired jurisdiction over
the person of the accused.
2. Notice of Arraignment and Pre-Trial
Notice of arraignment and pre-trial shall be sent
to the accused, his/her counsel, private
complainant or complaining law enforcement
agent, public prosecutor, and witnesses whose
names appear in the information for purposes
of plea-bargaining, arraignment and pre-trial.
3. Waiver of Reading of the Information
In multiple cases, the court, upon personal
examination of the accused, may allow a waiver
of the reading of the information upon the full
understanding and express consent of the
accused and his/her counsel, which consent
shall be expressly stated in both the minutes/
certificate of arraignment and the order of
arraignment. The court shall explain the waiver
to the accused in the language or dialect known
to him/her, and ensure the accused's full
understanding of the consequences of the
waiver before approving the same.
In multiple cases, the court, upon personal
examination of the accused, may allow a waiver
of the reading of the information upon the full
understanding and express consent of the
accused and his/her counsel, which consent
shall be expressly stated in both the minutes/
certificate of arraign1nent and the order of
arraignment. The court shall explain the waiver
to the accused in the language or dialect known
to him/her, and ensure the accused's full
understanding of the consequences of the
waiver before approving the same.
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4. Arraignment Proper
a. Plea Bargaining Except in Drug Cases –
Plea bargaining shall immediately proceed
if:
i. The accused desires to enter a plea of
guilty to a lesser offense;
ii. The private offended party in private
crimes, or the arresting officer in
victimless crimes, is present to give
his/her consent with the conformity of
the public prosecutor to the plea
bargaining.
Thereafter, judgment shall be immediately
rendered in the same proceedings.
b. Plea of Guilty to the Crime Charged in the
Information – If the accused pleads guilty
to the crime charged in the information,
judgment shall be immediately rendered,
except in those cases involving capital
punishment.
c. Where No Plea Bargaining or Plea of
Guilty Takes Place – If the accused does
not enter a plea of guilty, whether to a
lesser offense or to the offense charged in
the information, the court shall
immediately proceed with the arraignment
and the pre-trial, in accordance with the
succeeding provisions on pre-trial.
The schedule of the trial dates, for both the
prosecution and the accused, shall be
continuous and within the periods
provided in the Regular Rules/ Special
Rules. The trial dates may be shortened
depending on the number of witnesses to
be presented. In this regard, a flowchart
shall be prepared by the court which shall
serve as the final schedule of hearings.
5. Arraignment and Preliminary Conference of
Mediatable Cases subject to the Rule on
Summary Procedure
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The arraignment and preliminary conference
shall be simultaneously held, and the court shall
take up all the matters required under Sec. 14,
Rule on Summary Procedure during the
preliminary conference.
a. If the accused pleads guilty to the crime
charged in the information, subheading
Plea of Guilty to the Crime Charged in the
Information shall be followed.
b. If the accused pleads guilty to a lesser
offense, subheading III, Plea Bargaining
except in Drug Cases shall be followed.
c. If the accused does not enter a plea of
guilty, whether to a lesser offense or to the
offense charged in the information, the
court shall immediately proceed with the
arraignment and the preliminary
conference, and thereafter refer the case to
mediation.
6. Conduct of Pre-Trial
a. Absence of parties – The court shall
proceed with the pre-trial despite the
absence of the accused and/ or private
complainant, provided they were duly
notified of the same, and the counsel for the
accused, as well as the public prosecutor,
are present.
b. Stipulations – Proposals for stipulations
shall be done with the active participation
of the court itself and shall not be left alone
to the counsels.
c. Marking of evidence – The documentary
evidence of the prosecution and the
accused shall be marked.
d. Pre-trial Order – The Pre-trial Order shall
immediately be served upon the parties
and counsel on the same day after the
termination of the pre-trial.
e. Compliance with Rules – Courts must
strictly comply with the Guidelines to be
Observed in the Conduct of Pre-Trial under
A.M. No. 03-1-09-SC.
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Mediation
1. The following cases shall be referred to
mediation on the civil liability unless a
settlement is reached earlier in the pre-
trial/preliminary conference:
a. Crimes where payment may prevent
criminal prosecution or may extinguish
criminal liability, such as violations of:
i. B.P. Blg. 22;
ii. SSS Law (R.A. No. 1161, as
amended by R.A No. 8282); and
iii. PAG-IBIG Law. (R.A. No. 9679)
b. Crimes against property under Title 10
of the RPC, where the obligation may be
civil in nature, such as:
i. Theft under Art. 308, RPC,
cognizable by the first level courts;
ii. Estafa under Art. 315(1), RPC, except
estafa under Art. 315 (2) and (3);
iii. Other forms of swindling under Art.
316, RPC;
iv. Swindling of a minor under Art. 317,
RPC;
v. Other deceits under Art. 318, RPC;
and
vi. Malicious mischief under Art. 327,
RPC.
c. Crimes against honor under Title 13 of the
RPC, where the liability may be civil in
nature, such as:
i. Libel by means of writings or similar
means under Art. 355, RPC;
ii. Threatening to publish and offer to
present such publication for a
compensation under Art. 356, RPC;
iii. Prohibited publication of acts ref
erred to in the course of official
proceedings under Art. 357, RPC;
iv. Grave Slander (Grave Oral
Defamation) of serious and insulting
nature under Art. 358, par. 1, RPC;
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v. Simple Slander (Oral Defamation) –
not of a serious and insulting nature
under Art. 358, par. 2, RPC;
vi. Grave Slander by Deed – of a serious
nature under Art. 359, par. 1, RPC;
vii. Simple Slander by Deed – not of a
serious nature under Art. 359, par. 2,
RPC;
viii. Incriminating innocent person
under Art. 363, RPC;
ix. Intriguing against honor under Art.
364, RPC;
d. Libel under R.A. No. 10175 (Cybercrime
Prevention Act of 2012) where the liability
may be civil in nature;
e. Criminal negligence under Title 14 of the
RPC, where the liability may be civil in
nature; and
f. Intellectual property rights cases where the
liability may be civil in nature.
2. The referral of the case for mediation to the
Philippine Mediation Center (PMC) Unit shall be
made only after the conduct of the arraignment
and the pre-trial/preliminary conference.
The court shall serve the Order of Referral to
the PMC Unit immediately after the
arraignment and the pre-trial/preliminary
conference.
The mediation shall be terminated within a
non-extendible period of 30 calendar days
from the date of referral by the court to the PMC
Unit. After the lapse of the mediation period or
if mediation fails, trial shall proceed.
Except those cases mentioned above, criminal
cases subject to the Rule on Summary
Procedure shall not be referred to mediation.
Bail
a. Petition for bail
Petition for bail filed after the filing of the
information shall be set for summary hearing
after arraignment and pre-trial. Testimony of a
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2023 GOLDEN NOTES
witness in petition for bail may be in the form
allowed, provided that the demeanor of the
witness is not essential in determining his/her
credibility.
Petition for bail shall be heard and resolved
within a non-extendible period of 30 calendar
days from date of the first hearing, except in
drug cases which shall be heard and resolved
within 20 calendar days, without need of oral
argument and submission of memoranda,
consistent with the summary nature of the
proceedings.
Motion for reconsideration on the resolution of
petition for bail shall be resolved within a non-
extendible period of ten 10 calendar days from
date of submission of the motion.
b. Evidence in petition for bail
The resolution of petition for bail shall be based
solely on the evidence presented during the bail
proceedings by the prosecution. The
prosecution shall present only pieces of
evidence that are essential in establishing that
the evidence of guilt is strong. The accused need
not present evidence to contradict or rebut the
prosecution's evidence.
c. Non-suspension of the presentation of
evidence
The court shall not suspend the presentation of
the evidence in chief while awaiting resolution
of the petition for bail or the motion for
reconsideration.
Form of Testimony
a. For First Level Courts
In all criminal cases, including those covered by
the Rule on Summary Procedure, the
testimonies of witnesses shall consist of the
duly subscribed written statements given to
law enforcement or peace officers or the
affidavits or counter-affidavits submitted
before the investigating prosecutor, and if such
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are not available, testimonies shall be in the
form of judicial affidavits, subject to additional
direct and cross-examination questions.
The trial prosecutor may dispense with the
sworn written statements submitted to the law
enforcement or peace officers and prepare the
judicial affidavits of the affiants or modify or
revise the said sworn statements before
presenting it as evidence.
b. For Second Level Courts, Sandiganbayan and
Court of Tax Appeals
In criminal cases where the demeanor of the
witness is not essential in determining the
credibility of said witness, such as forensic
chemists, medico-legal officers, investigators,
auditors, accountants, engineers, custodians,
expert witnesses and other similar witnesses,
who will testify on the authenticity, due
execution and the contents of public documents
and reports, and in criminal cases that are
transactional in character, such as falsification,
malversation, estafa, or other crimes where the
culpability or innocence of the accused can be
established through documents, the
testimonies of the witnesses shall be the duly
subscribed written statements given to law
enforcement or peace officers or the affidavits
or counter-affidavits submitted before the
investigating prosecutor, and if such are not
available, testimonies shall be in the form of
judicial affidavits, subject to additional direct
and cross-examination questions.
In all other cases where the culpability or the
innocence of the accused is based on the
testimonies of the alleged eyewitnesses, the
testimonies of these witnesses shall be in oral
form.
NOTE: Mere relationship of the witness with the
victim does not necessarily tarnish the witness’
testimony. When there is no showing of improper
motive on the part of the witness in testifying
against the accused, her relationship with the victim
does not render her testimony less worthy of
credence. In fact, relationship itself could even
569
strengthen credibility in a particular case, for it is
highly unnatural for an aggrieved relative to falsely
accuse someone other than the actual culprit.
(People v. Solar y Dumbrique, G.R. No. 225595, 06
Aug. 2019)
Stipulations
During pre-trial/preliminary conference, the court
shall require the parties to enter into stipulations on
the subject of both direct and cross-examinations of
witnesses who have no personal knowledge of the
material facts constituting the crimes, such as
forensic chemists, medico-legal officers,
investigators, auditors, accountants, engineers,
custodians, expert witnesses and other similar
witnesses, who will testify on the authenticity, due
execution and the contents of public documents and
reports; corroborative witnesses; and those who
will testify on the civil liability.
This rule is without prejudice to allowing additional
direct and cross-examination questions.
If stipulations cannot be had in full, where the
adverse party does not waive the right to cross-
examination, the subject of the direct testimony of
these witnesses should be stipulated upon, without
prejudice to additional direct and cross-
examination questions.
Trial
a. The court shall encourage the accused and the
prosecution to avail of:
1. For the accused – Secs. 12 and 13, Rule 119
of the Rules of Court on the application for
examination of witness for accused before
trial and how it is made; and
2. For the prosecution – Sec. 15, Rule 119 of the
Rules of Court on the conditional
examination of witness for the prosecution.
b. Absence of counsel de parte – In the absence of
the counsel de parte, the hearing shall proceed
upon appointment by the court of a counsel de
officio.
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c. Offer of evidence – The offer of evidence, the
comment/ objection thereto, and the court
ruling thereto shall be made orally. A party is
required to make his/her oral offer of evidence
on the same day after the presentation of
his/her last witness, and the opposing party is
required to immediately interpose his/her oral
comment/objection thereto. Thereafter, the
court shall make a ruling on the offer of
evidence in open court.
In making the offer, the counsel shall cite the
specific page numbers of the court record
where the exhibits being offered are found, if
attached thereto. The court shall ensure that all
exhibits offered are submitted to it on the same
day of the offer.
If the exhibits are not attached to the record, the
party making the offer must submit the same
during the offer of evidence in open court.
d. Demurrer to Evidence – After the prosecution
has rested its case, the court shall inquire from
the accused if he/she desires to move for leave
of court to file a demurrer to evidence, or to
proceed with the presentation of his/her
evidence.
If the accused orally moves for leave of court to
file a demurrer to evidence, the court shall
orally resolve the same. If the motion for leave
is denied, the court shall issue an order for the
accused to present and terminate his/her
evidence on the dates previously scheduled and
agreed upon, and to orally offer and rest his/her
case on the day his/her last witness is
presented.
If despite the denial of the motion for leave, the
accused insists on filing the demurrer to
evidence, the previously scheduled dates for the
accused to present evidence shall be cancelled.
The demurrer to evidence shall be filed within
a non-extendible period of 10 calendar days
from the date leave of court is granted, and the
corresponding comment shall be filed within a
non-extendible period of 10 calendar days
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counted from date of receipt of the demurrer to
evidence. The demurrer shall be resolved by the
court within a non-extendible period of 30
calendar days from date of the filing of the
comment or lapse of the 10-day period to file
the same.
If the motion for leave of court to file demurrer
to evidence is granted, and the subsequent
demurrer to evidence is denied, the accused
shall likewise present and terminate his/her
evidence (one day apart, morning and
afternoon) and shall orally offer and rest
his/her case on the day his/her last witness is
presented. The court shall rule on the oral offer
of evidence of the accused and the comment or
objection of the prosecution on the same day of
the offer. If the court denies the motion to
present rebuttal evidence because it is no
longer necessary, it shall consider the case
submitted for decision.
e. Presentation of Rebuttal and Sur-rebuttal
Evidence – If the court grants the motion to
present rebuttal evidence, the prosecution shall
immediately proceed with its presentation after
the accused had rested his/her case, and orally
rest its case in rebuttal after the presentation of
its last rebuttal witness. Thereafter, the accused
shall immediately present sur-rebuttal
evidence, if there is any, and orally rest the case
in sur-rebuttal after the presentation of its last
sur-rebuttal witness. Thereafter, the court shall
submit the case for decision.
NOTE: If the court denies the motion to present
rebuttal evidence because it is no longer
necessary, it shall consider the case submitted
for decision.
f. One-day examination of witness rule – The
court shall strictly adhere to the rule that a
witness has to be fully examined in one (1) day.
Memoranda
The submission of memoranda is discretionary on
the part of the court, which in no case shall exceed
25 pages in length, single-spaced, on legal size
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paper, using size 14 font. The period to submit
memoranda shall be non-extendible and shall not
suspend the running of the period of promulgation
of the decision; thus, with or without memoranda,
the promulgation shall push through as scheduled.
Lack of Stenographic Notes
Judges who conducted the trial and heard the
testimonies of some or all of the witnesses shall not
defer the submission of the case for decision on the
ground of incomplete or missing transcript of
stenographic notes. If the case was heard
completely by another judge, not the judge tasked to
write the decision, the latter shall direct the
stenographers concerned to submit the complete
transcripts within a period of 30 calendar days from
date of his/her assumption to office.
Promulgation
Schedule of promulgation – The court shall
announce in open court and include in the order
submitting the case for decision, the date of the
promulgation of its decision which shall not be more
than 90 calendar days from the date the case is
submitted for decision, except when the case is
covered by Special Rules and other laws which
provide for a shorter period.
Resolution of motion for reconsideration of
judgment of conviction or motion for new trial –
A motion for reconsideration of judgment of
conviction or motion for new trial under Rule 121 of
the Rules of Court filed within the reglementary
period of 15 days from promulgation shall be
resolved within a non-extendible period of 10
calendar days from the submission of the comment
of the prosecution. With or without comment, the
court shall resolve the motion within the 10-day
period.
Effect of Non-Compliance
Non-compliance with the Revised Guidelines,
including failure to observe the timelines and
deadlines herein provided, is a ground for
disciplinary action.
571
K. JUDGMENT
(RULE 120)
Judgment is the 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, if any. (Sec. 1, Rule 120, ROC, as amended)
Formal Requisites
1. Written in official language;
NOTE: If given verbally, it is incomplete. (People
v. Catolico, G.R. No. L-31260, 29 Feb. 1972) An
oral dismissal of a criminal case does not attain
the effect of judgment of acquittal. So that it is
still within the powers of the judge to set aside
and enter another order. This is so because the
order of dismissal must be written and signed
by the judge. (Abay, Sr. v. Garcia, G.R. No. L-
66132, 27 June 1988)
2. Personally and directly prepared by the judge;
3. Signed by the judge; and
4. Contains clearly and distinctly a statement of
the facts and the law upon which it is based.
(Sec. 1, Rule 120, ROC, as amended)
Jurisdictional Requirements before a Judgment
may be Rendered
1. Jurisdiction over the subject matter;
2. Jurisdiction over the territory; and
3. Jurisdiction over the person of the
accused. (Antiporda, Jr. v. Garchitorena,
G.R. No. 133289, 23 Dec. 1999)
Contents of Judgment
The judgment must state:
1. If of conviction:
a. Legal qualification of the offense
constituted by the acts committed by the
accused, and the aggravating or mitigating
circumstances attending its commission;
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b. Participation of the accused whether as
principal, accomplice or accessory;
c. Penalty imposed upon the accused; and
d. Civil liability or damages caused by the
wrongful act or omission unless a separate
civil action has been reserved or waived.
(Sec. 2, Rule 120, ROC, as amended)
2. If of acquittal:
a. 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; and
b. In either case, the judgment shall
determine if the act or omission from which
the civil liability might arise did exist. (Sec.
2, Rule 120, ROC, as amended)
Penalties in the alternative
Q: Can the courts impose penalties in the
alternative?
A: NO. It is true that under many of the provisions of
the penal law, the court has the discretion or
alternative of imposing one or another of different
penalties; but certainly it cannot be argued that,
because the judge has the discretion of fixing one or
another penalty, he can impose both in the
alternative. He must fix positively and with
certainty the particular penalty. (US v. Chong Ting,
G.R. No. 7259, 02 Sept. 1912)
Award of Indemnity to Offended Party in spite of
Acquittal
In case of acquittal, unless there is a clear showing
that the act from which the civil liability might arise
did not exist, the judgment must make a finding on
the civil liability of the accused in favor of the
offended party. (Sec. 2, par. 2, Rule 120, ROC, as
amended)
Remedies when the Judgment fails to award
Civil Liability:
1. Appeal;
2. Certiorari; or
3. Mandamus.
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Duplicitous Complaint or Information
When two or more offenses are charged in a single
complaint or information but the accused fails to
object to it before trial, the court may convict him of
as many offenses as are charged and proved, and
impose on him the penalty of each offense, setting
out separately the findings of the fact and law in
each offense. (Sec. 3, Rule 120, ROC, as amended) The
failure to object is tantamount to a waiver.
Judgment rendered by Judge who did not hear
the Case
The SC clarified that the fact that the trial judge who
rendered judgment was not the one who had the
occasion to observe the demeanor of the witnesses
during trial, but merely relied on the records of the
case, does not render the judgment erroneous,
especially where the evidence on record, is
sufficient to support its conclusions. (People v.
Alfredo, G.R. No. 188560, 15 Dec. 2010)
The judge who presided over the entire trial would
be in a better position to ascertain the truth or
falsity of the testimonies. But the judge who only
took over can render a valid decision by relying on
the transcript. It does not violate due process.
(People v. Badon, G.R. No. 126143, 10 June 1999)
Variance Doctrine
GR: An accused can be convicted of an offense only
when it is both charged and proved.
XPN: When the offense as charged is included in 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.
(Sec. 4, Rule 120, ROC, as amended)
NOTE: The accused can be convicted of an offense
only when it is both charged and proven.
The mere fact that the evidence presented would
indicate that a lesser offense outside the court’s
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it under
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1. PROMULGATION OF JUDGMENT
Promulgation of Judgment
It is the official proclamation or announcement of
judgment. It is promulgated by reading it in the
presence of the accused and any judge of the court
which it was rendered, or when the judgment is one
of conviction for a light offense, in the presence of
the accused’s counsel or representative. (Sec. 6, Rule
120, as amended)
Authority to Promulgate the Judgment
GR: The judge of the court who renders the
judgment.
XPNs:
1. When the judge is absent or outside the
province or city – Judgment may be
promulgated by the clerk of court; and
2. When the accused is confined or detained in
another province or city – Judgment may be
promulgated by the executive judge of the RTC
having jurisdiction over the place of
confinement or detention. (Sec. 6, Rule 120, ROC,
as amended)
NOTE: When it is not merely physical absence of the
judge who penned the decision, but the cessation or
termination of his incumbency as such judge, there
is no judgment validly entered in such a case. (Ong
Siu v. Paredes, G.R. No. L-21638, 26 July 1966)
Sin perjuicio Judgment
It is a judgment without a statement of the facts in
support of its conclusion to be later supplemented
by the final judgment. This practice is discouraged
by the courts. (Dizon v. Lopez, A.M. No. RTJ-96-1338,
05 Sept. 1997) This is a practice which should not be
followed and cannot be looked upon with favor.
(Director of Lands v. Sanz, 45 Phil. 117, 31 Aug. 1923)
Notice of Promulgation to the Accused
The proper clerk of court shall give notice to the
accused requiring him or to be present at the
promulgation of the decision:
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1. personally;
2. through his bondsman or warden and counsel;
or
3. notice shall be served at his or her last known
address, if the accused tried in absentia because
he jumped bail or escaped from prison
How Promulgation is made when the Accused is
absent despite notice
The promulgation shall still be made by:
1. Recording such judgment in the criminal
docket; and
2. Serving him a copy thereof at his last known
address or through his counsel.
Effects of the Absence of the Accused in the
Promulgation of Judgment; Remedies
If judgment is one of conviction and the accused is
absent without justifiable cause, the court shall
order his arrest and he shall lose the remedies
available in the rules against the judgment and his
bail shall be forfeited.
However, the accused may surrender and file a
motion for leave of court to avail of these remedies
within 15 days from the promulgation of judgment.
If such motion is granted, he may avail of these
remedies within 15 days from notice of such order
granting the motion. (Sec. 6, Rule 120, ROC, as
amended) He must however, state the reasons for
his absence at the promulgation and prove that his
absence was for a justifiable cause.
Instances when Judgment may be promulgated
even if the Accused is not present
1. A judgment of acquittal; and
2. Judgment is for a light offense, in which case
judgment may be promulgated in the presence
of the counsel for the accused or a
representative
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Modification of Judgment
A judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes
final or before appeal is perfected. (Sec. 7, Rule 120)
Thus, a modification of the judgment must be upon
motion of the accused. It cannot be done on the
court’s own motion.
NOTE: A judgment of acquittal becomes final
immediately after promulgation and cannot be
recalled for correction or amendment. (People v.
Sison, G.R. No. L-11669, 30 Jan. 1959)
Instances when Judgment becomes Final
A judgment becomes final:
1. After the lapse of time for perfecting an appeal;
NOTE: In case the death penalty is imposed, the
CA shall automatically review the judgment
before it becomes final.
2. When the sentence has been partially or totally
satisfied;
3. When the accused has expressly waived in
writing his right to appeal; or
4. When the accused has applied for probation.
(Sec. 7, Rule 120, ROC, as amended)
NOTE: Applying for probation is necessarily
deemed a waiver of one’s right to appeal.
Appeal and probation are mutually exclusive
remedies. Implicit in an application for
probation is an admission of guilt. (Enrique
Almero v. People, G.R. No. 188191, 12 Mar. 2014)
(2012 BAR)
4. When the accused has applied for probation.
(Sec. 7, Rule 120, ROC, as amended)
NOTE: Applying for probation is necessarily
deemed a waiver of one’s right to appeal.
Appeal and probation are mutually exclusive
remedies. Implicit in an application for
probation is an admission of guilt. (Enrique
575
Almero v. People, G.R. No. 188191, 12 Mar. 2014)
(2012 BAR)
Entry of Judgment
The recording of the judgment or order in the book
of entries of judgments shall constitute its entry.
The record shall contain the dispositive part of the
judgment order and shall be signed by the clerk,
with a certificate that such judgment or order has
become final and executory. (Sec. 2, Rule 36, ROC, as
amended)
Finality of Judgment vs. Entry of Judgment
The finality of the judgment is entirely distinct from
its entry and the delay in the latter does not affect
the effectivity of the former, which is counted from
the expiration of the period to appeal. (Munnez v. CA,
G.R. No. L-46040, 23 July 1987)
Remedies before the Judgment of Conviction
becomes final
Before the judgment of conviction becomes final,
the convicted accused may avail of certain remedies,
to wit:
a. Modification of judgment (Sec. 7, Rule 120, ROC,
as amended)
b. Reopening of the proceedings (Sec. 24, Rule 119,
Rules of Court)
c. Motion for New Trial (Sec. 1, Rule 121, ROC, as
amended)
d. Motion for Reconsideration (Sec. 1, Rule 120,
ROC, as amended)
e. Appeal from the judgment (Rule 122, ROC, as
amended)
L. NEW TRIAL OR RECONSIDERATION
(RULE 121)
Period to file a Motion for New Trial or Motion
for Reconsideration
It should be filed with the trial court within 15 days
from the promulgation of the judgment. If an appeal
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has already been perfected, a motion for new trial
on the ground of newly discovered evidence maybe
filed in the appellate court.
A new trial or reconsideration may be granted at
any time before the judgment of conviction becomes
final:
1. On motion of the accused; or
2. On motion of the court but with consent of the
accused.
Form of a Motion for New Trial or
Reconsideration
The motion must:
1. Be in writing;
2. Be filed in court;
3. State the grounds on which it is based; and
4. If the motion for new trial is based on newly
discovered evidence, it must be supported by
the affidavits of the witness by whom such
evidence is expected to be given or duly
authenticated copies of documents which it is
proposed to introduce in evidence. (Sec. 4, Rule
121, ROC, as amended)
NOTE: While the rule requires that an affidavit of
merit be attached to support a motion for new trial
based on newly discovered evidence, the rule also
allows that the defect of lack of affidavit of merit
may be cured by the testimony under oath of the
defendant at the hearing of the motion. (Paredes v.
Borja, G.R. No. L-15559, 29 Nov. 1961)
Notice of the motion for new trial or reconsideration
shall be given to the prosecutor. (Sec. 4, Rule 121,
ROC, as amended)
NEW TRIAL
New trial
Rehearing of a case already decided but before the
judgment of conviction therein rendered has
become final, whereby errors of law or
irregularities are expunged from the record or new
evidence is introduced, or both steps are taken.
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NOTE: A hearing shall be conducted when the
motion for new trial calls for a resolution of a
question of fact. The court may hear evidence on the
motion by affidavits or otherwise. (Sec. 5, Rule 121,
ROC, as amended)
Grounds
1. Errors of law have been committed during the
trial;
2. Irregularities prejudicial to the substantial
rights of the accused have been committed
during the trial; or
3. New and material evidence has been
discovered which the accused could not, with
reasonable diligence, have discovered and
produced at the trial and which if introduced
and admitted would probably change the
judgment. (Sec. 2, Rule 121, ROC, as amended)
Requisites before a New Trial may be Granted
on Ground of Newly Discovered Evidence
(Berry Rule)
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered
and produced at the trial even with the exercise
of reasonable diligence;
3. It is new and material, not merely cumulative,
corroborative or impeaching; and
4. The evidence is of such a weight that it would
probably change the judgment if admitted.
(Tadeja v. People, G.R. No. 145336, 20 Feb. 2013)
NOTE: The most important requisite is that the
evidence could not have been discovered and
produced at the trial even with reasonable
diligence; hence, the term “newly discovered.”
(Ibid.)
It must be of weighty influence and will affect
the result of the trial. (People v. Alfaro, G.R. Nos.
136742-43, 30 Sept. 2003)
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aside or vacated and a new judgment rendered
accordingly.
The other effects would depend upon the ground
availed of in granting the new trial or
reconsideration, thus:
1. Errors of law or irregularities committed
during the trial
a. All proceedings and evidence not affected
by such errors and irregularities shall
stand;
b. Those affected shall be set aside and taken
anew; and
c. In the interest of justice, the court may
allow the introduction of additional
evidence.
2. Newly discovered evidence
a. The evidence already taken shall stand; and
b. Newly discovered and other evidence as
the court may, in the interest of justice,
allow to be introduced, shall be taken and
considered together with the evidence
already in the record. (Sec. 6, Rule 121, ROC,
as amended)
NOTE: The effect of granting a new trial is not to
acquit the accused of the crime of which the
judgment finds him guilty but precisely to set aside
said judgment so that the case may be tried de novo
as if no trial had been had before.
Application of the Neypes Rule in Criminal Cases
(Fresh Period Rule)
The period for appeal is not only within 15 days
from notice of the judgment but also within 15 days
from notice of the final order appealed from.
NOTE: A fresh period of 15 days to appeal is counted
from the denial of the motion for reconsideration or
new trial. (Neypes v. CA, G.R. No. 141524, 14 Sept.
2005)
The raison d’être for the “fresh period rule” is to
standardize the appeal period provided in the Rules
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and do away with the confusion as to when the 15-
day appeal period should be counted.
The new rule aims to regiment or make the appeal
period uniform, to be counted from the receipt or
the order denying the motion for new trial, motion
for reconsideration (whether full or partial) or any
final order of resolution. (Neypes v. Court of Appeals,
G.R. No. 141524, 14 Sept. 2005)
M. APPEAL
(RULE 122)
Appeal
A proceeding for review by which the whole case is
transferred to the higher court for a final
determination. The right of appeal is a mere
statutory privilege. Only final judgments and orders
are appealable.
In all criminal prosecutions, the accused shall have
the right to appeal in the manner prescribed by law.
It is an essential part of our judicial system and trial
courts are advised to proceed with caution so as not
to deprive a party of the right to appeal and
instructed that every party-litigant should be
afforded the amplest opportunity for the proper and
just disposition of his cause, freed from the
constraints of technicalities. While this right is
statutory, once it is granted by law, however, its
suppression would be a violation of due process, a
right guaranteed by the Constitution. (Hilario v.
People, G.R. No. 161070, 14 Apr. 2008)
NOTE: The right to appeal is neither a natural right
nor a part of due process. It is merely a statutory
privilege and may be exercised only in the manner
and in accordance with the provisions of law. Thus,
one who seeks to avail of the right to appeal must
comply with the requirements of the Rules. Failure
to do so leads to the loss of the right to appeal.
Anyone seeking exemption from the application of
the reglementary period for filing an appeal has the
burden of proving the existence of exceptionally
meritorious instances warranting such deviation.
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(Ramirez v. Felomino, G.R. No. 202661, 17 Mar. 2021,
J. Hernando)
Period to take an Appeal
It must be taken within 15 days from promulgation
of judgment or from notice of final order appealed
from. (Sec. 6, Rule 122, ROC, as amended)
Who may Appeal
Any party may appeal from a judgment or final
order, unless the accused will be placed in double
jeopardy. (Sec. 1, Rule 122, ROC, as amended)
NOTE: The authority to represent the State in
appeals of criminal cases before the Court of
Appeals and the Supreme Court is solely vested in
the Solicitor General.
Effect of Appeal by the Accused
When the accused appeals his conviction, he waives
the protection on the prohibition against double
jeopardy and runs the risk of being sentenced to a
penalty higher than that imposed by the trial court.
(Philippine Rabbit Bus Lines, Inc. v. People, G.R. No.
147703 14 Apr. 2004)
Q: May the prosecution appeal a judgment of
acquittal?
A: GR: NO. The accused would be subjected to
double jeopardy.
XPNs:
1. If the dismissal is made upon motion or with the
express consent of the accused;
XPNs to the XPN:
a. Insufficiency of the prosecution
evidence; or
b. Violation of the accused’s right to speedy
trial.
2. If the dismissal is not an acquittal or based upon
consideration of the evidence on the merits;
3. If the question is purely legal so that should the
dismissal be found incorrect, the case shall be
579
remanded for further proceedings to determine
the guilt or innocence of the accused; and
4. If there is a showing of grave abuse of discretion
amounting to lack or excess of jurisdiction,
certiorari under Rule 65 of the Rules of Court
may be available.
Modes of Appeal
Modes of appeal that may be taken from a judgment
convicting the accused are:
1. The accused may seek a review of said
judgment as regards both criminal and civil
actions; or
2. The private offended party may appeal only
with respect to the civil action either because
the lower court has refused or failed to award
damages or because the award made is
unsatisfactory to him.
Modes of review recognized by the Rules of Court:
1. Ordinary appeal;
2. Petition for review;
3. Petition for review on certiorari; and
4. Automatic appeal.
Effect of an Appeal
An appeal in a criminal case opens the whole case
for review and this includes the review of penalty,
indemnity, and the damages involved.
Consequently, on appeal, the appellate court may
increase the penalty and indemnity of damages
awarded by the trial court although the offended
party had not appealed from said award, and the
party who sought a review of the decision was the
accused.
Effect of Perfection of Appeal with regard to the
Jurisdiction of the Court
Once an appeal in a case, whether civil or criminal,
has been perfected, the court a quo loses jurisdiction
over the case both over the record and over the
subject of the case. (Director of Prisons v. Teodoro,
G.R. No. L-9043, 30 July 1955) Failure to serve a copy
to the prosecutor is not a defect which can nullify
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the appeal or prejudice the unquestionable rights of
the accused.
Effects of Failure to Prosecute an Appeal
1. Judgment of the court becomes final.
2. Accused cannot be afforded the right to appeal
unless:
a. He voluntarily submits to the jurisdiction of
the court; or
b. He is otherwise arrested within 15 days
from notice of judgment against him.
Appeal Not Mooted by Accused’s Release on
Parole
Parole is not one of the modes of totally
extinguishing criminal liability under Art. 89 of the
RPC.
NOTE: Parole refers to the conditional release of an
offender from a correctional institution after he
serves the minimum term of his prison sentence.
Appeal from the Civil Aspect
1. The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from.
2. The appeal period accorded to the accused
should also be available to the offended party
who seeks redress of the civil aspect of the
decision. The period to appeal granted to the
offended party is the same as that granted to the
accused. (Riano, 2019)
Death of the Accused Pending Appeal
Upon the death of the accused pending appeal of his
conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand
as the accused; the civil action instituted therein for
the recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal
action. (People v. Paras, G.R. No. 192912, 03 Oct.
2014)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
Factual Findings of the Trial Court
GR: The trial court’s factual findings are accorded
great respect and even conclusive effect if duly
supported by evidence.
XPNs: When facts or circumstances of weight and
substance have been:
1. Overlooked;
2. Misapprehended;
3. Misinterpreted; or
4. The court gravely abused its discretion
Where to Appeal
Appeals shall be taken before the:
1. To the RTC, in cases decided by the MTC, MTCC,
MeTC, or MCTC;
2. To the CA or to the SC in the proper cases
provided by law, in cases decided by the RTC;
3. To the SC, in cases decided by the CA; (Sec. 2,
Rule 122, ROC, as amended)
4. To the SC, in cases decided by CTA en banc; (Sec.
1, Rule 116, ROC, as amended)
5. To the SC, in cases decided by Sandiganbayan.
(Sec. 1, Rule 45, ROC, as amended)
Service of Notice of Appeal
GR: Notice of appeal should be served upon the
adverse party or his counsel by personal service.
XPN: If personal service cannot be made, through:
a. Registered mail;
b. By substituted service pursuant to Secs. 7 and
8 of Rule 13 (Sec. 4, Rule 122, ROC, as
amended); or
c. By publication, made in a newspaper of
general circulation in the vicinity once a week
for a period not exceeding 30 days. (Pamaran,
2010)
NOTE: The appellee may waive his right to notice of
appeal. However, the appellate court may, in its
discretion, entertain an appeal notwithstanding
failure to give such notice if the interests of justice
so require. (Sec. 5, Rule 122, ROC, as amended)
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VII. CRIMINAL PROCEDURE
Period to Withdraw an Appeal
1. An appellant may withdraw his appeal before
the record has been forwarded by the clerk of
court to the proper appellate court as provided
by Sec. 8, Rule 122, in which case the judgment
shall become final. (Sec. 12, Rule 122, ROC, as
amended)
2. The court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a
motion to that effect is filed before the rendition
of the judgment in the case on appeal. (Sec. 12,
Rule 122, ROC, as amended)
Probation
The court may, after it shall have convicted and
sentenced a defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for
such period and conditions it may deem best. No
application for probation shall be entertained or
granted if the defendant has perfected an appeal
from the judgment of conviction. (Sec. 4, P.D. 968 as
amended) Therefore, that an appeal should not bar
the accused from applying for probation if the
appeal is taken solely to reduce the penalty (in order
to “qualify” for probation) is contrary to the clear
and express mandate of the law. (Boado, 2015)
NOTE: Appeal and probation are mutually exclusive
remedies. Implicit in an application for probation is
an admission of guilt. (Almero v. People, GR No.
188191, 12 Mar. 2014)
Stay of Execution
Upon perfection of the appeal, the execution of the
judgment or final order appealed from shall be
stayed as to the appealing part. (Sec. 11(c), Rule 122,
ROC, as amended)
NOTE: The benefit of the stay of execution afforded
to a co-accused, who timely files an appeal, cannot
be extended to those who failed to file the same.
Thus, the period to appeal continued to run against
the accused who did not appeal even if his co-
accused appealed. (Riano, 2019)
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Effect of Appeal by any of Several Accused
Appeal taken by any of the several accused shall
have the following effects:
1. It shall not affect those who did not appeal,
except insofar as the judgment of the appellate
court is favorable and applicable to the latter
(People v. Gandia, G.R. No. 175332, 06 Feb. 2008)
2. The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from; and
3. Upon perfection of the appeal, the execution of
the judgment or final order appealed from shall
be stayed as to the appealing party. (Sec. 11,
Rule 122, ROC, as amended)
NOTE: In People v. Olivo (G.R. No. 177768, 27 July
2009), an accused has benefitted from the acquittal
of his co-accused despite the former’s failure to
appeal from the judgment.
Grounds for Dismissal of Appeal
1. Failure of the appellant to serve and file the
required number of copies of his brief of
memorandum within the time provided by
these Rules;
2. Appellant escapes from prison or confinement,
jumps bail or flees to a foreign country during
the pendency of the appeal.
3. Failure of the record on appeal to show on its
face that the appeal was taken within the period
fixed by these Rules;
4. Failure to file the notice of appeal or the record
on appeal within the period prescribed by these
Rules;
5. Failure of the appellant to pay the docket and
other lawful fees as provided in Sec. 5 of Rule 40
and Sec. 4 of Rule 41 of the Rules of Court;
6. Unauthorized alterations, omissions or
additions in the approved record on appeal as
provided in Sec. 4 of Rule 44 of the Rules of
Court;;
7. Absence of specific assignment of errors in the
appellant’s brief, or of page references to the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL L AW
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REMEDIAL LAW
record as required in Sec. 13, pars. (a), (c), (d)
and (f) of Rule 44 of the Rules of Court; and
8. Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order.

Erroneous Mode of Appeal

In cases where the contention of the adverse party

that the ordinary appeal filed by appellant be
dismissed because the proper remedy is petition for
review on certiorari was rejected. The Supreme
Court said that in cases similarly situated, and as
long as the steps formally required for the
perfection of an appeal were taken in due time,
appeal may be given due course, without prejudice
to requiring the appellant to file the necessary
petition for review on certiorari which is also a form
of appeal. (People v. Resuello, G.R. No. L-30165, 23
Feb. 1971)

Rule if the Opinion of the Supreme Court en banc

is equally divided

When the SC en banc is equally divided in opinion or

the necessary majority cannot be had on whether to
acquit the appellant, the case shall again be
deliberated upon and if no decision is reached after
redeliberation, the judgment of conviction of the
lower court shall be reversed and the accused
acquitted. (Sec. 3, Rule 125, ROC, as amended)

UNIVERSITY OF SANTO TOMAS 582

2023 GOLDEN NOTES
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REMEDIAL LAW
N. SEARCH AND SEIZURE
(RULE 126)
Nature of Search Warrant
It is in the nature of a criminal process and may be
invoked only in furtherance of public prosecutions.
Search warrants have no relation to civil process or
trials and are not available to individuals in the
course of civil proceedings, nor for the maintenance
of a mere private right. It is interlocutory in
character because it leaves something more to be
done, which is the determination of the guilt of the
accused.
It is not a proceeding against a person but is solely
for the discovery and to get possession of personal
property. It is a special and peculiar remedy, drastic
in nature, and made necessary because of public
necessity. It resembles in some respects with what
is commonly known as John Doe proceedings.
(Riano, 2019, citing Worldwide Web Corporation v.
People, G.R. No. 161106, 13 Jan. 2014)
An application for a search warrant is not a criminal
action. Hence, any aggrieved party may question an
order quashing the same without need for the
conformity of the public prosecutor. (Riano, 2019)
Search Warrant
1. An order in writing issued in the name of the
People of the Philippines;
2. Signed by a judge; and
3. Directed to a peace officer, commanding him to:
a. Search for personal property described
therein; and
b. Bring it before the court. (Sec. 1, Rule 126,
ROC, as amended)
The power to issue such search warrants is
exclusively vested with the trial judges in the exercise
of their judicial functions. (Skechers, USA v. Inter
Pacific Industrial Trading Corporation, G.R. No.
164321, 30 Nov. 2006)
UNIVERSITY OF SANTO TOMAS
2023 GOLDEN NOTES
NOTE: The warrant must name the person upon
whom it is to be served except in those cases where
it contains a descriptio personae such as will enable
the officer to identify the person. The description
must be sufficient to indicate clearly the proper
person upon whom it is to be served. (People v.
Veloso, G.R. No. L-23051, 20 Oct. 1925)
General Warrant
A general warrant is defined as a search or arrest
warrant that is not particular as to the person to be
arrested or the property to be seized. It allows the
seizure of one thing under a warrant describing
another and gives the officer executing the warrant
the discretion over which items to take.
Such discretion is abhorrent, as it makes the person,
against whom the warrant is issued, vulnerable to
abuses. The Constitution guarantees our right
against unreasonable searches and seizures, and
safeguards have been put in place to ensure that
people and their properties are searched only for
the most compelling and lawful reasons.
(Worldwide Web Corporation v. People, G.R. No.
161106, 13 Jan. 2014)
NOTE: A search warrant need not describe the
items to be seized in precise and minute detail. The
warrant is valid when it enables the police officers
to readily identify the properties to be seized and
leaves them with no discretion regarding the
articles to be seized. (Ibid)
Scatter-shot Search Warrant
It is a warrant issued for more than one offense.
(Retired SP04 Laud v. People, G.R. No. 199032, 19 Nov.
2014) It is invalid because it violates what the law
requires in a warrant of arrest.
NOTE: There must be strict compliance with the
constitutional and statutory requirements.
Otherwise, it is void. No presumptions of regularity
are to be invoked in aid of the process when an
officer undertakes to justify it. (People v. Veloso, G.R.
No. 23051, 20 Oct. 1925) It will always be construed
strictly without going the full length of requiring
technical accuracy.
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