MOTION TO QUASH

Section 1. Time to move to quash. —

At any time before entering his plea, the accused may move to quash
the complaint or information.

(Motion to Quash is to dismiss the case before its trial)

Section 2. Form and contents. —

The motion to quash shall be in writing

signed by the accused or his counsel
and shall distinctly specify its factual and legal grounds.

The court shall consider no ground other than those stated in the
motion, EXCEPT lack of jurisdiction over the offense charged.
Section 3. Grounds. — The accused may move to quash the
complaint or information on any of the following grounds:

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

Example: In the Information for violation of R.A 9262 case, the

information failed to alleged the relationship of the complainant and
the accused. The information does not provide the complete
elements/requisites of the crime.
(b) That the court trying the case has no jurisdiction over the offense
charged;

Example: The case is filed in the RTC but the acts complained of is
within the jurisdiction of the MTC.
(c) That the court trying the case has no jurisdiction over the person
of the accused.

Example: 1. The minor is charge of Theft in the MTC.

The MTC has no jurisdiction over the accused because the
case should have filed in the Family Court (because the accused is
minor).
Example: 2. The accused is illegally arrested.
(d) That the officer who filed the information had no authority to do
so;
Ex. Information is not signed by the Provincial Prosecutor or city
Prosecutor as the case may be.

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

Example: Failed to comply with the definition/Sufficiency or

requisites of Information or Complaint.
(f) That more than one offense is charged except when a single
punishment for various offenses is prescribed by law;

Example: The information contains allegations for two independent

offenses. (Theft and Robbery in the same information)
Exception- complex crime.
(g) That the criminal action or liability has been extinguished;
Example:
A is charged of Libel for an act happened two years ago.
Libel case must be filed within one year from its
commission. Otherwise, it is prescribed, or the accused is not liable
anymore.
(h) That it contains averments which, if true, would constitute a legal
excuse or justification;

Example:
A is charge of qualified theft of coconut. He own the
coconut plantation, but the title is not yet released to him. Before the
arraignment, he received a certified true copy of title and presented it
to the court by way of motion to quash information.
Thus, this (title) is a legal justification for him to take the
coconut from the plantation.
(i) That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (double jeopardy)

Example: 1. A is charged of Attempted Homicide. He was acquitted

for insufficiency of evidence. The complainant filed another case for
Serious Physical Injuries against the accused arising from the same
incident. This is double jeopardy.
Example: 2. A is charged of Attempted Homicide. The case was
provisionally dismissed for the continuous absence of the material
witness. He did not give his consent to the dismissal. The
complainant revive the case. The revival is quashable.
Section 4. Amendment of the complaint or information. —
If the motion to quash is based on:
1.defect of the complaint or information which can be cured by
amendment
the court shall order that an amendment be made.

Example: A minor was charge of Homicide. The information did not

allege that he “acted with discernment”. The information may be
amended upon order of the court.
2. Facts charged do not constitute an offense
 the prosecution shall be given opportunity to correct the defect
by amendment.

Example: A case for Less Serious Physical Injuries is filed against

B. The complaint/information does not specify the number of
days B would be incapacitated or would be unable to perform his
usual work.
The prosecution shall be given opportunity to correct the complaint/
information.
If the prosecution failed to make amendment, or the complaint is still
defective despite amendment,
the motion to quash shall be granted.
Section 5. Effect of sustaining the motion to quash. —
1.If the motion to quash is sustained (granted)
 the court may order that another complaint or information be
filed;

Except:
• The criminal liability of the accused is extinguished.
• Double jeopardy.
2. If the accused is in the custody (nakakulong) when another
complaint or information is ordered to be filed;
 the accused shall not be discharged unless admitted to bail.

3. If the accused is in the custody and no order is made to file

another complaint or information; or if an order is made but no
new information is filed;
 the accused shall be discharged unless he is also in custody for
another charge.
Example: The information against B for Estafa does not specify
fraud or deceit. The accused moved to quash the information and the
motion was granted by the court. Here are the effects:
The court may direct the prosecutor to file another complaint or
information.
•The accused, if in jail, will stay therein unless posted bail
If the court did not order to file another complaint or information
•The accused shall be released.
If the court order for another complaint or information and the
prosecutor failed to file.
•The accused shall be released
Section 6. Order sustaining the motion to quash not a bar to another
prosecution; exception. —
An order sustaining the motion to quash is not a bar to another
prosecution for the same offense, EXCEPT:
That the criminal action or liability has been extinguished;

That the accused has been previously convicted or acquitted of the

offense charged, or the case against him was dismissed or otherwise
terminated without his express consent. (double jeopardy)
Example: The Information against A for the felony of Estafa was
quashed for failure of the prosecutor to allege fraud or deceit. The
prosecutor may refile the case by filing another information. The
new information is barred (hindi na pwede) if:

 the liability of A has been extinguished, (example: prescribed or

out of time already), or;
Double jeopardy (see explanation in Section 17)
Section 7. Former conviction or acquittal; double jeopardy. —

Double Jeopardy-means that when a person is charged with an

offense and the case is terminated either by acquittal of conviction or
in any other manner without the consent of the accused, the latter
cannot be charged of the same or identical offense.
 REQUISITES OF DOUBLE JEOPARDY
The complaint or information was sufficient in form and
substance.
The court has criminal jurisdiction.
The accused has been arraigned and pleaded.
He was convicted or acquitted or the case is dismissed without his
express consent.
If the requisites are all present they constitute a BAR to a second
prosecution for:
Same offense
An attempt to commit the said offense
Frustration of the said offense
Any offense which necessarily includes or is necessarily included
in the first offense.
SAME OFFENSE
Example: A, was acquitted for the felony of Direct Bribery due to
insufficiency of Evidence to prove the ACCEPTANCE OF OFFER
of bribe money. The complainant cannot anymore file another direct
Bribery arising from the same incident.

ATTEMPT TO COMMIT/ FRUSTRATION

Likewise, an ATTEMPTED/FRUSTRATED (Direct Bribery) arising
from the same act cannot be filed.
NECESSARILY INCLUDES

An offense may be said to necessarily include another when some of

the essential elements or ingredients of the former as alleged in
the complaint or information constitute the latter.
Example: A, was charge of Indirect Bribery. He was acquitted. The
complainant filed another case for Direct Bribery arising from the
same act.

This is double jeopardy, because in the new charge of Direct Bribery,

it necessarily includes the Indirect Bribery, the felony where the
accused is acquitted.
 INDIRECT BRIBERY DIRECT BRIBERY
Elements: Elements:

(1)The accused is a public officer;

(2)That he accepts gifts; (1)that the accused is a public officer;
(3)That the gifts are offered to him by reason of (2)that he received directly or through
his office another some gift or present, offer or
promise;
(3)that such gift, present or promise has been
given in consideration of his commission of
some crime, or any act not constituting a
crime, or to refrain from doing something
which is his official duty to do; and
(4)that the crime or act relates to the exercise
of his functions as a public officer
Example 2.

A was acquitted for Less Physical Injuries. The unhappy

complainant, for his desire to jail A, filed another case for Attempted
Homicide arising from the same act.

Here, the Attempted Homicide case necessarily includes the less

serious physical injuries, the case where he was acquitted.
NECESSARILY INCLUDED
An offense may be said to be necessarily included in another when
the essential ingredients of the former constitute or form part of those
constituting the latter.

Example: A, was charge of Murder. He was acquitted for

insufficiency of evidence. The complainant filed another case of
Homicide against A, arising from the same incident.
Homicide is necessarily included in the crime of murder (Afable v.
Cajigal, G.R. No. 157472, September 28, 2007
NO DOUBLE JEOPARDY

The conviction of the accused shall not be a bar to another

prosecution for an offense which necessarily includes the offense
charged in the former complaint or information under any of the
following instances:

•(a) the graver offense developed due to supervening facts arising

from the same act or omission constituting the former charge;
Example:

A attacked B, the latter sustained several wounds. A was convicted

for Serious Physical Injuries. B eventually died because of the
injuries he sustained from the attacked of A. The heirs of B filed
another case for Homicide.

This is not double jeopardy, because the graver offense developed

due to supervening facts arising from the same act.
(b) the facts constituting the graver charge became known or were
discovered only after a plea was entered in the former complaint or
information; or

Example: A attacked B, the latter sustained several wounds. While

the case for Serious Physical Injuries is pending trial, B eventually
died because of the injuries he sustained from the attacked of A. A
new case for Homicide is filed.

This is not double jeopardy, because the graver charge became

known or were discovered only after a plea was entered in the former
complaint or information.
(c) the plea of guilty to the lesser offense was made without the
consent of the prosecutor and of the offended party except as
provided in section 1 (f) of Rule 116.

Example: A was charged of Serious Physical Injuries for attacking B.

He pleaded guilty to Less Serious Physical Injuries. But his plea of
guilty to a lesser offense has no consent of B and the prosecutor.

Here, no double jeopardy because the plea of guilty to the lesser

offense was without the consent of the prosecutor and B.
Days of imprisonment served shall be credited.

In any of the foregoing cases, where the accused satisfies or serves in

whole or in part the judgment, he shall be credited with the same in
the event of conviction for the graver offense. (7a)
Section 8. Provisional dismissal. —

The case shall not be dismissed provisionally, unless:

with the express consent of the accused
with notice to the offended party.

Example: A filed a case for Homicide against B. A failed to present

evidence for 3 consecutive trial dates after arraignment. The case
may be provisionally dismissed.
PERMANENCY/REVIVAL OF THE CASE PROVISIONALLY
DISMISSED CASE

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.

The case may be revived within one (year) year after issuance of the
order of provisional dismissal.
offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years
after issuance of the order without the case having been revived.
(n)

The case may be revived within two (2) years after issuance of the
order of provisional dismissal.
Section 9. Failure to move to quash or to allege any ground
therefor. — The failure of the accused to assert any ground of a
motion to quash before he pleads to the complaint or information,
either because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of any objections
EXCEPT those based on the grounds provided for in paragraphs (a),
(b), (g), and (i) of section 3 of this Rule. (8)
• a) That the facts charged do not constitute an offense;
• (b) That the court trying the case has no jurisdiction over the
offense charged;
• (g) That the criminal action or liability has been extinguished;
• ( i) That the accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.
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