-PI

is required for offenses

where the penalty is at least 4 years,
2 months and 1 day.(Sec. 1, Rule 112)

Criminal Procedure
RULE 110
I. Prosecution of offenses
Who are the parties in a criminal
action?
The parties are the People of
the Philippines and the accused. The
offended party is regarded merely as
a witness for the state.
Reason:
The
purpose
of
criminal action is to determine the
penal liability of the accused for
having outraged the state with his
crime. (Heirs of Sarah Marie Palma
Burgos v. CA, 169711, February 8,
2010)

NOTE: RTC jurisdiction: over

offenses punishable by imprisonment
of more than 6 years, way above the
minimum penalty for offenses that
require PI.
-MTC has jurisdiction over
offenses punishable by not more than
6 years. (Sec. 32(2), BP 129, Judiciary
Reorganization Act of 1980).
NOTE: It is not correct to say
then that ALL offenses under the
jurisdiction of the MTC do not require
PI.

actions

What is the effect of the filing of

the
criminal
action
on
the
prescriptive period?

It
generally
depends
on
whether or not the offense is one
which
requires
preliminary
investigation (Sec. 1, Rule 110)

Sec. 1 categorically says that it

shall
interrupt
the
period
of
prescription of the offense charged
UNLESS
otherwise
provided
in
special laws.

How
are
instituted?

criminal

Where PI is required- instituted

by filing the complaint with the proper
officer for the requisite PI.
Where PI is NOT
instituted in either 2 ways:

required-

a) by filing directly with the

MTC and MCTC; or
b)
by
prosecutor's
110)

filing
with
the
office (Sec. 1, Rule

How about in Manila

chartered cities?

&

other

-Special rule: by filing with the

prosecutor's office unless otherwise
provided in the charter (Sec. 1, Rule
110)
Is there direct filing with the RTC?
NONE, because its jurisdiction
covers offenses which require PI.
Is
there
direct
filing
Manila/other chartered cities?

in

NONE, because as rule, the

complaint shall be filed with the
prosecutor's office.
In what offenses is PI require/not
required?
1

NOTE: Since Rule 110 provides that

one of ways of instituting the criminal
action is by filing with the proper
officer for the conduct of PI for
offenses that require it, such filing
with the proper officer for the
requisite PI shall interrupt the
prescriptive period.
For offenses where PI is not
required, the filing with the MTC or
with the prosecutor's office shall
interrupt the period.
In Manila and other chartered
cities, the filing with the prosecutor
interrupts the period.
Until when is the
period suspended?

prescriptive

-until such time that the

accused is either convicted or
acquitted by the proper court. (People
v. Bautista, GR No. 168641, April 27,
2007)
Rule on prescription for violations
of special laws and municipal
ordinances:
the

Act 3326, as amended, governs

period for prescription for

violations
of
special
municipal ordinances.

laws

and

Section 1. Violations penalized

by special acts shall, unless otherwise
provided in such acts, prescribe in
accordance with the following rules:
(a) after a year for offenses
punished only by a fine or by
imprisonment for not more than one
month, or both;
(b) after four years for those
punished by imprisonment for more
than one month, but less than two
years;
(c) after eight years for those
punished by imprisonment for two
years or more, but less than six years;
and
(d) after twelve years for any
other
offense
punished
by
imprisonment for six years or more,
except the crime of treason, which
shall prescribe after twenty years.
Violations penalized by municipal
ordinances shall prescribe after two
months.
Sec. 2. Prescription shall begin to
run
from
the
day
of
the
commission of the violation of the
law, and if the same be not known
at the time, from the discovery
thereof and the institution of
judicial
proceeding
for
its
investigation
and
punishment.
The
prescription
shall
be
interrupted when proceedings are
instituted
against
the
guilty
person, and shall begin to run
again if the proceedings are
dismissed
for
reasons
not
constituting
jeopardy.
Sec. 3. For the purposes of this Act,
special acts shall be acts defining and
penalizing violations of the law not
included in the Penal Code.
Notable cases re Act 3326:
1
) Zaldivia v. Reyes, 211 SCRA
277, a case involving an offense
punishable by a municipal ordinance.
=it held that Act 3326 says
that
the
period
of
prescription
shall
be
suspended
when
proceedings are instituted
against the guilty person,
the
proceedings
being
2

judicial proceedings and

not administrative.
2
) Recent cases
seemingly
abandoned the Zaldivia ruling:
a. Sanrio Company Limited v.
Lim,
GR
No.
168662,
February 19, 2008-Violation
of
Intellectual
property
Code.
-A complaint was filed
with the Task force on AntiIntellectual Property
Piracy
(TAPP)
of
the
DOJ.
The
complaint was dismissed by
TSPP
for
insufficiency
of
evidence. It was appealed up to
the CA which affirmed the
dismissal on the ground of
prescription since no complaint
was filed in court pursuant to
Act 3326.
Supreme
Court:
The
prescriptive
period
for
violation of special laws
starts on the day such
offense was committed and
IS INTERRUPTED BY THE
INSTITUTION
OF
PROCEEDINGS
AGAINST
THE
RESPONDENT.
The
prescriptive period for the
prosecution of violation of
the IPC was tolled by the
petitioner's timely filing of
the complaint before the
TAPP.
2) Panaguiton Jr v. DOJ, GR. No.167571,
11-25-08-case
for
Violation of BP 22.
-QC Prosecutor dismissed the
complaint on the ground of
prescription (4 years). The DOJ
affirmed the dismissal. The CA
dismissed certiorari petition on
technical grounds.
-Before the SC, respondent
invoked the Zaldivia ruling to
support the dismissal of the
complaint.
SC RULING: The filing of the
complaint
with
the
prosecutor
signified
the
commencement
of
the
proceedings
for
the
prosecution of the accused
and
thus,
EFFECTIVELY
INTERRUPTED
THE
PRESCRIPTIVE PERIOD.

-The court explained that

when Act 3326 was passed,
PI could be conducted by
justices of the peace, thus,
the phraseology in the law,
INSTITUTION OF JUDICIAL
PROCEEDINGS
FOR
ITS
INVESTIGATION
AND
PUNISHMENT XXX.
3
) SEC v. Interport Resources
Corp., GR No. 135808, 10-6-08involving Violation of Revised
Securities Act.
-SC
RULING:
It
is
established doctrine that a
preliminary
investigation
interrupts the prescriptive
period.
The
investigation
commenced
by
SEC,
pursuant to its powers under
the securities Act, effectively
interrupted the prescriptive
period.
NOTE: Sanrio, Panaguiton and
SEC cases cited above uniformly
held that the filing of the affidavit
complaint for PI interrupted the
running of the prescriptive period
for violations of special laws.
I

. PROSECUTION OF
CRIMINAL ACTION

WHO must prosecute the criminal

action?
-All criminal actions shall be
prosecuted
under
the
direct
supervision and control of the public
prosecutor. Even if there is a private
prosecutor, the criminal action is still
under the direction and control of the
public prosecutor.
Can a private prosecutor appear?
-YES. The appearance of
a
private prosecutor is allowed ONLY
when the civil action for the recovery
of civil liability is filed with the
criminal action pursuant to Rule 111
(Sec.
16,
Rule
110).
The
engagement or appointment of a
private prosecutor is done by the
offended party and it is the mode by
which
he
intervenes
in
the
prosecution of the offense.
-When NOT allowed: when
the offended party 1) WAIVES the
3

civil action, b) RESERVES the right

to file the civil action, and c)
institutes the civil action PRIOR to
the criminal action.
What
is
the
effect
of
an
independent civil action on the
right of the offended party to
intervene
through
a
private
prosecutor?
-the filing of an independent
civil action does not deprive the
offended party the right to intervene
through a private prosecutor.
-NOTE that under Sec. 1, Rule
111, what is deemed instituted with
the criminal action is the civil action
to recover civil liability arising from
the offense charged.
-Those not arising from the
offense charged like independent civil
actions under Arts. 32, 33, 34 and
2176 of the Civil Code are not deemed
instituted with the criminal action.
-These
independent
civil
actions, according to Sec. 3, Rule 111,
shall proceed independently of the
criminal
action.
No
need
for
reservation under the 2000 Rules of
Criminal Procedure because they can
proceed separately from the criminal
action.
-NOTE: THUS, it was ruled that
as a consequence of the independent
character of actions brought under
Arts. 32(civil & political rights), 33
(defamation/fraud/physical injuries),
34 (failure to render aid by peace
officer) and 2176 (quasi-delict caused
by fault/negligence) of the Civil Code,
even if a civil action based on these is
filed, the ex delicto civil liability in the
criminal prosecution remains. Hence,
the offended party may still intervene
through a private prosecutor.
WHO must prosecute criminal
actions in the MTC or MCTC?
-The public prosecutor MUST.
-EXCEPTION: when the public
prosecutor is NOT available, the
following
may
be
allowed
to
prosecute:(Sec. 5, Rule 110, as
amended by AM 02-2-7-SC &
clarified in OCA Circular No. 39,
August 21, 2002)

a. Private prosecutor
b. offended
c. peace officer
d. public officer charged with
the enforcement of the law
violated.
NOTE:
1) A.M. No. 02-2-7-SC, May 1,
2002, amending Sec. 5, Rule 110)
"Section 5. Who must prosecute
criminal action. - All criminal actions
either commenced by complaint or by
information shall be prosecuted under
the direction and control of a public
prosecutor. In case of heavy work
schedule of the public prosecutor
or in the event of lack of public
prosecutors,
the
private
prosecutor may be authorized in
writing by the Chief of the
Prosecution Office or the Regional
State Prosecutor to prosecute the
case subject to the approval of the
court. Once so authorized to
prosecute the criminal action, the
private prosecutor shall continue
to prosecute the case up to end of
the trial even in the absence of a
public prosecutor, unless the
authority is revoked or otherwise
withdrawn. x x x ."
2)
OCA
CIRCULAR
AUGST 21, 2002

39-2002,

The Supreme Court En Banc in its

Resolution dated 10 April 2002, in
A.M. No. 02-2-07-SC, RE: Proposed
Amendments to Section 5, Rule 110 of
the Revised Rules of Criminal
Procedure, Resolved to approve the
amendment to Sec. 5, Rule 110 to
read as follows:
"Section 5. Who must prosecute
criminal actions. (as quoted
above)
The afore-quoted resolution did
not state the entire first (1st)
paragraph of Section 5, Rule 110 of
the Revised Rules of Criminal
Procedure resulting to confusion on
the right of the offended party, any
peace officer or public officer to
prosecute the criminal cases before
the
Municipal
Trial
Courts
or
Municipal Circuit Trial Courts when
the public prosecutor is not available.
Such right on the part of the offended
party, peace officer or public officer to
4

prosecute the criminal case in the

aforementioned courts is still in effect
and not withdrawn. It is therefore
necessary to state in toto the first
(1st) paragraph of Section 5, Rule
110 as amended by the Supreme
Court Resolution dated 10 April
2002 in A.M. No. 02-2-07-SC as
follows:
"Section 5. Who must prosecute
criminal actions. All criminal
actions either commenced by
complaint or by information shall
be
prosecuted
under
the
direction and control of a public
prosecutor. In case of heavy work
schedule
of
the
public
prosecutor, or in the event of
lack of public prosecutors, the
private
prosecutor
may
be
authorized in writing by the
Chief of the Prosecution Office or
the Regional State Prosecutor to
prosecute the case subject to the
approval of the court. Once so
authorized to prosecute the
criminal action, the private
prosecutor shall continue to
prosecute the case up to the end
of the trial even in the absence of
a public prosecutor, unless the
authority is revoked or otherwise
withdrawn.
However,
in
Municipal
Trial
Courts
or
Municipal Circuit Trial Courts
when the prosecutor assigned
thereto or to the case is not
available, the offended party, any
peace officer, or public officer
charged with the enforcement of
the law violated may prosecute
the case. This authority shall
cease upon actual intervention of
the prosecutor or upon elevation
of the case to the Regional Trial
Court.
How are offenses in violation of
special laws prosecuted?
-pursuant to the provisions of
said law (Sec. 5, Rule 110)
III. PROSECUTION OF PRIVATE
CRIMES
How
are
prosecuted?
ONLY

private

crimes

1) Adultery & concubinageupon the complaint of

offended
110).

spouse

(Sec.

5,

Rule

-MUST be filed against BOTH

guilty parties, unless one is
dead (Sec. 5, Rule 110)
-may not be filed if the offended
spouse has consented to the
offense
or has pardoned the
offenders.- express or implied (Sec.
5, Rule
110)
-Prosecutor cannot prosecute
where
no complaint is filed by
the offended
spouse.
2) Seduction, abduction &
acts of lasciviousness-ONLY upon
complaint by the offended party
OR her parents, grandparents or
guardian.
-Effect of EXPRESS pardon by
any of the above: serves as a BAR to
criminal prosecution for any of these
crimes.
-a minor offended party can file
the complaint independently of her
parents, grandparents or guardian.
(Sec. 5, Rule 110)
-if
minor
dies
or
is
incapacitated before she can file and
no known parents, grandparents or
guardian, the State may file (Sec. 5,
Rule 110).
3) Defamation for imputing
the
offenses
of
adultery,
concubinage, seduction, or acts of
lasciviousness- ONLY upon the
compliant of the offended party.
I

. THE COMPLAINT AND

INFORMATION

Complaint- is a sworn written

statement charging a person with an
offense, subscribed by the offended
party, any peace officer, or other
public officer, charged with the
enforcement of law violated. (Sec. 3,
Rule 110)
-it is filed in the name of the
PEOPLE OF THE PHILIPPINES
and against all who appear
responsible for the offense.
only

-private offended parties are

witnesses for the prosecution.

-Cannot appeal the criminal

aspect
BUT only as to the civil
aspect.
Information- is an accusation in
writing charging a person with an
offense subscribed by the prosecutor
and filed with the court. (Sec. 4, Rule
110)
-filed in
PEOPLE
OF
and against
responsible.

the name of the

THE PHILIPPINES
all who appear

Effect of infirmity in the signature

in the information-an infirmity, such
as lack of authority of the officer
signing it cannot be cured by silence,
acquiescence, or even by express
consent.
What is the test for sufficiency of
the complaint or information?
-the test is whether the crime is
described in intelligible terms with
such particularity as to apprise the
accused with reasonable certainty, of
the offense charged.
When can one raise any question
as to the sufficiency of the
complaint or information? As to
form?
-Upon arraignment or during
trial. Failure to do so is deemed a
waiver, such as when accused
voluntarily entered a plea and
participated in the trial. (Frias v.
People, G.R. No. 171437, 10-4-07).
-objections as to form must
likewise be made before arraignment
and cannot be made for the time on
appeal.
What determines the nature and
character of the offense charged?
-the recitals of the ultimate
facts and circumstances in the
information and NOT by the caption of
the
information
nor
by
the
specification of the provisions of the
law violated.
All
qualifying
or
aggravating
circumstances must be alleged:
-if NOT, the court cannot take
them into consideration in the
imposition of the penalty even if

proven during the trial. (Sec. 8,9, Rule

110, People v. Tampus, G.R. No.
181084, June 16, 2009)
What is the rule on duplicity of
offense
as
charged
in
the
information? (bar 2005)
-General rule=the complaint
or information must charge
only one offense.
EXCEPTION: when the law
prescribes a single punishment
for various offenses. (Sec. 13,
Rule 110)
NOTE: Objections on the ground
of duplicity must be raised before
trial, otherwise it is deemed
waived.
I

. VENUE OF CRIMINAL
ACTIONS

-refer to discussion on
preliminary topics
VI. AMENDMENT OR
SUBSTITUTION OF COMPLAINT
OR INFORMATION

a) with LEAVE
b) it does not prejudice the
rights of the accused.
b) As to substance NOT allowed
by the rules.
EXCEPT: If beneficial to the
accused.
What is the test whether
amendment will prejudice
rights of the accused?

the
the

-the test of whether the rights

of an accused are prejudiced by the
amendment of the complaint or
information is whether a defense
under the original complaint or
information, would no longer be
available after the amendment is
made; and when any evidence the
accused might have would be
inapplicable to the complaint or
information.
SUBSTITUTION OF COMPLAINT
OR INFORMATION:

Under what instances when LEAVE

is
still
required
even
if
amendment is done before plea?

-If it becomes manifest at any

time before judgment that there is a
mistake in charging the proper
offense, the court shall require the
filing of the proper information, but
shall still commit the accused to
answer the proper charge if there
appears good reason to detain him.
After the proper information is filed, it
shall dismiss the original case
provided the accused will not be
placed in double jeopardy

-a) the amendment downgrades

nature of the offense charged;

Distinctions between amendment

and substitution :

Before PLEA-no LEAVE required:

-allowed as to both form and
substance WITHOUT leave of
court. (Sec. 14)

the
or
the
14)

-b) excludes any accused from

compliant or information.(Sec.

NOTE: Under the above instances,

the following are required: a)
Leave of court b) by way of motion
by prosecutor c) and with notice to
offended:
The court, on the other
hand, is mandated by the rules to
state its reasons in resolving the
motion and furnish all parties.
Amendment AFTER plea:
a) As to Form ALLOWED:
6

Amendment

Substitution

1.before or after 1.before or after

plea
plea-anytime
before judgment
2.form
substance

3. before
w/o leave

or 2.substancechange
from
original charge
plea- 3.before or after
plea-WITH leave

4.as to form-NO 4. another PI and

NEED for PI & re-arraignment
retaking of plea
required.
5. refers to the 5.

presupposes

same offense or
one
that
necessarily
includes
or
is
included in the
original charge

that new charge is

different
from
original,
hence
accused
cannot
claim
double
jeopardy.

RULE 111
Prosecution of Civil Action
General Rule. When a criminal
action is instituted, the civil
action for the recovery of civil
liability arising from the offense
shall be deemed instituted with
the criminal action.
Reason for the Rule: Every person
criminally liable is also civilly liable
(Art. 100, Revised Penal Code). A
criminal action has two aspects- the
criminal and the civil aspect. One
source of obligation is delict or acts or
omissions punishable by law. The law
abhors splitting the criminal and civil
aspect of a criminal action since it
goes against efficient and speedy
disposition of cases.
Exceptions to the General Rule:
1. When the offended party
waives the civil action.
2. When the offended party
reserves the right to
institute
a
separate
action.
3. When the offended party
institutes
civil
action
prior to the institution of
a criminal action.
In the civil aspect of the
criminal action, the real parties in
interest are the offended party and
the accused. As a consequence,
both the offended party and the
accused may file an appeal in
relation to the civil aspect of the
case. While the law and rules
prohibit double recovery, there is
no violation of the right of an
accused against double jeopardy if
the offended party files an appeal
to seek an increase in the award of
an accuseds civil liability. The
right against double jeopardy
applies only to criminal cases.

Reservation of the Right to

Institute a Separate Civil Action
When may an offended party
reserve the right to file a separate
action?
At
anytime
before
the
prosecution starts presenting its
evidence but always under such
circumstances
that
afford
the
offended
party
a
reasonable
opportunity to make such reasonable
opportunity to make such reservation
(Rule 111 Section 1). (Note that it is
not enough to simply answer at
anytime before the prosecution starts
presenting its evidence. It must be
complete as to include the phrase
under such circumstances that afford
the offended party a reasonable
opportunity to make such reservation.
The relevance of this phrase will be
shown below)
What is the reason for the
inclusion of the phrase under
such circumstances that afford the
offended
party
a
reasonable
opportunity
to
make
such
reservation?
This rule is added to address a
situation where the accused pleads
guilty to a non-capital offense in order
to escape civil liability (as shown by
some cases that have reached the
Supreme Court). In such instance, no
trial
shall
be
made
and
the
prosecution
cannot
present
its
evidence. Nonetheless, a reasonable
opportunity shall be given for the
offended
party
to
make
the
reservation of his right to file a
separate action. (In other words,
pleading guilty to a non-capital
offense in order to escape civil
liability arising from the offense is not
allowed.)
Case: A makes a valid plea of
guilty for the crime of Homicide.
The
prosecution
no
longer
presents evidence to prove As
guilt. B, the offended party,
chooses to reserve the right to
institute a separate civil action. A
objected on the ground that he
may not do so because there will
be no presentation of evidence by
the
prosecution.
Will
As
contention prosper? (Menses v.

Luat 12 SCRA 454: Reyes v. Simpio

141 SCRA 208)
No, A is incorrect. B must be
afforded reasonable opportunity to
reserve his right to institute a
separate civil action.
What if the accused pleads guilty
to a capital offense?
The prosecution still needs to
prove the guilt of the accused along
with his civil liability. There is no rule
requiring automatic conviction for a
capital offense upon a valid guilty
plea.
Are
there
cases
where
the
offended party cannot reserve his
right to institute a separate civil
action?
Yes. These are criminal actions
for violation of BP 22 and those that
fall within the jurisdiction of the
Sandiganbayan. In cases for violation
of BP 22, the liability is essentially
civil. On the other hand, in cases
falling within the jurisdiction of the
Sandigandbayan, the offended party is
the State.
In criminal actions for violation of
BP 22, may the offended party still
waive the civil liability arising
from the offense or institute a
prior civil action to recover it?
Yes. Only reservation of the
right to file a separate civil action is
prohibited by the rules.
Case: A killed her spouse, B. A was
subsequently
charged
with
parricide for which she was found
guilty. A and B had common
children who are still minors.
Prior to the presentation of
evidence by the prosecution, Bs
heirs never made any reservation
to file a separate civil action to
enforce the civil liability arising
from the offense. Considering that
the children are still minor, the
judge ordered a reservation of
their right to institute a separate
action until a guardian for them
has been appointed. Nonetheless,
despite its prior order, the trial
court awarded damages in favor of
A and Bs common children. A
assailed the award on the ground
8

that the right to institute a

separate civil action has been
reserved. Is A correct? (People v.
Samson, 7 SCRA 478)
No,
A
is
incorrect.
The
reservation to institute a separate
action is personal. It may only be done
by the offended party. Not even the
court can make such reservation on
behalf of the offended party.
Independent Civil Actions
What is an independent civil
action? (Rule 111 Sec. 3, Art. 32,
33, 34 and 2176 of the Civil Code)
They are civil actions that may
proceed independently of the criminal
action. They are totally distinct and
separate from the civil liability arising
from the criminal action. They are
characterized by the separability of
their juridical cause/cause of action.
As a consequence, the right to bring
these actions need not be reserved,
and the institution of a prior civil
action or waiver of the civil liability
does not extinguish the right to file an
independent civil action.
What
are
the
different
independent civil actions?
The following are the different
independent civil actions:
1. Civil actions arising from
Art. 32 of the Civil Code Violation of Political and
Civil Liberties.
2. Civil actions arising from
Art. 33 of the Civil Code Defamation,
Fraud
(including estafa as fraud is
used in its generic sense)
and Physical Injuries (still in
generic sense- includes all
offenses
resulting
to
physical injuries)
3. Civil actions arising from
Art. 34 of the Civil Code
Failure to render aid by a
Peace
Officer,
Mayor,
municipality
4. Civil Actions arising from
Art. 2176 of the Civil Code
Quasi-delicts
Waiver of Civil Liability

What is needed to make a valid

waiver?
A waiver of the civil liability
arising from the offense charged
needs a positive action and must also
be personal.
Institution of a Prior Civil Action
General Rule. Criminal action
takes
precedence
over
civil
actions. This means that all earlier
instituted civil actions will have to
be suspended to await judgment
on the criminal actions.
Exceptions to the General Rule:
1. Independent civil actions
2. Civil Actions that involve
prejudicial questions
3. Consolidation of the prior
instituted
civil
action
with the criminal action
4. Civil Actions that do not
enforce liability arising
from the offense charged
Independent civil actions
and civil actions that do not
enforce liability arising from
the offense charged shall
proceed unaffected by the
criminal action.
If there is a consolidation of
the prior instituted civil
action with the criminal
action, there shall be a joint
trial
on
the
civil
and
criminal
aspects
of
the
criminal case.
The
existence
of
a
prejudicial question in an
earlier instituted civil action
will suspend the criminal
action. In this case, it is the
civil action that truly takes
precedence
over
the
criminal action.
If a civil action has been instituted
prior to the criminal action, what
happens now to the civil aspect of
the criminal action?
The criminal action no longer
has a civil aspect. It is a purely
criminal case.

What
happens
to
the
prior
instituted civil action upon the
commencement of the criminal
action? (Rule 111 Sec. 2)
It shall be suspended in
whatever stage it may be found until
judgment on merits to await final
judgment to be rendered in the
criminal action.
Upon
a
motion
for
consolidation, there shall be a joint
trial for the civil and criminal action
for a joint judgment. The civil action
shall be consolidated in the same
criminal action. It may happen that
the civil action is in a different court.
Upon consolidation, the civil action
shall be transferred to where the
criminal action is.
Is a consolidation of the prior
instituted civil action and the
criminal action mandatory?
No. It is not a ministerial duty
of the court trying the criminal action
to grant application for consolidation
of an earlier instituted civil action.
Is the earlier instituted civil action
deemed abandoned for failure to
consolidate it with the criminal
action?
Yes if the civil action is one to
recover civil liability arising from a
criminal
action
committed
by
government officials in relation to
their office. For all other cases, there
is no abandonment of the civil action
by reason of failure to consolidate it
with the criminal action.
*Effect of failure to consolidate an
earlier instituted civil action for
crimes committed by public officials in
relation to their
office =
Abandonment of the Civil Action
Prejudicial Question
What is a prejudicial question?
(Rule 111 Sec. 5)
A prejudicial question is an
issue involved in a civil case which is
similar or intimately related to the
issue raised in the criminal action, the
resolution
of
which
determines
whether or not the criminal action
may proceed.

What are
prejudicial
Sec. 5)

the elements of a
question? (Rule 111

The following are the elements

of a prejudicial question.
1. The previously instituted
civil action involves an issue
similar to or intimately
related to the issue raised
on the subsequent criminal
action.
2. The resolution of such issue
determines whether or not
the criminal action may
proceed.
In what cases does a prejudicial
question apply?
A prejudicial question applies
only to a criminal action and not to
civil or administrative cases. For it to
apply, it is a strict requisite that there
must be a prior instituted civil action
and a criminal action filed thereafter.
What is the effect of a prejudicial
question? (Rule 111 Sec. 6)
When a prejudicial question
exists in an earlier instituted civil
action, the criminal action shall be
suspended until judgment on the civil
action.
What must be done in order to
suspend the proceedings in a
criminal case due to a prejudicial
question? (Rule 111 Sec. 6)
The accused must file a motion
to
suspend
before
preliminary
investigation and if the criminal
action is on trial, the motion to
suspend must be filed anytime before
the prosecution rests. The court or the
investigating
prosecutor
cannot
suspend the proceedings of criminal
action or the preliminary investigation
on their own.
What kind of issue is needed for
prejudicial question? (Rule 111
Sec. 5)
For prejudicial question to
exist, the issues involved in a prior
instituted civil action and the criminal
action must be so intimately related
as to determine whether the criminal

10

action may proceed or whether the

accused is guilty or not.
Case: A and B are husband and
wife, respectively. B filed a case
for
concubinage
against
A.
Thereafter, A filed a petition to
declare his marriage with B as
void ab initio. B now files a motion
to suspend the proceedings of the
criminal action on the grounds of
the existence of a prejudicial
question. Is there a prejudicial
question in this case?
No. There is no prejudicial
question. Foremost, for prejudicial
question to exist, there must be a
prior instituted civil action and a
criminal case filed thereafter. In this
case, it is the reverse. The civil case is
filed after the commencement of the
criminal action.
What if in the above case, the
petition for declaration of nullity
of marriage was filed earlier prior
to the institution of the criminal
action for concubinage. Will there
be a prejudicial question?
There is still no prejudicial
question even if the civil case has
been filed earlier. The outcome of a
civil case for annulment of marriage
or declaration of a marriage as void
ab initio does not determine the guilt
of the accused in concubinage.
Suppose
the
petition
for
declaration of nullity was filed
prior to the institution of a
criminal case for bigamy. Will
there be a prejudicial question?
There is still no prejudicial
question. As a rule, the validity of
either the first and second marriage is
not a prejudicial question in the case
of bigamy. But if the validity of the
second marriage is in question due to
vitiation of or absence of consent,
such as when the accused was made
to contract the second marriage
against his will by force, threat, or
duress, it now becomes a prejudicial
question. (Merced v. Diez GR No. L15315, August 26, 1960; Zapanta v.
Mendoza GR No. L-14534, February
28, 1962)
Effect of Acquittal on Civil
Liability

General Rule. Dismissal of the

criminal action does not bar the
civil action/The extinction of the
criminal action does not carry
with it the extinction of the civil
action unless (exception clause)
the civil action is based on the
delict and there is a finding in the
criminal action that the act or
omission from which the civil
liability may arise did not exist.
Such finding may not be exactly
worded as such but it could be
impliedly stated. (Rule 111 Sec. 2)
Dismissal of the criminal action is
still not a bar to the Civil Action in
the following cases.
1. Acquittal is based on
reasonable doubt.
2. Finding by the court that
the accuseds liability is
civil
3. If the civil liability is not
based on the crime that is
the subject matter of the
criminal action.
Effect of Death of the Accused
Before Arraignment.
The criminal action must be
dismissed but the offended party may
file the proper civil action against the
estate of the deceased.
After Arraignment and During the
Pendency of the Criminal Action.
The criminal liability and its
corresponding
civil
liability
are
extinguished. However, the civil
liability arising from independent civil
actions and other sources obligation
aside from the delict may proceed
against
the
estate,
legal
representative or heirs of the accused.
After Conviction but During the
Pendency of an Appeal
The
criminal
liability
is
extinguished. The civil action based
on the delict is also extinguished but
if it is not based on delict, it is not
extinguished.

RULE 112
Preliminary Investigation
11

Nature of preliminary
investigation
It is not a judicial function but
an executive one. It is generally
inquisitorial.
While it is an executive
function, it is considered a judicial
inquiry, a judicial proceeding, as it
involves opportunity to be heard for
both parties, the production and
weighing of evidence and decision
thereon and the prosecutor, in the
discharge of this function, acts as a
quasi-judicial officer. (Arula v. Espino,
28 SCRA 226 (1990) As such, he must
exhibit the cold neutrality of an
impartial judge.(Cruz v. People, 52
SCAD 516, 233 SCRA 439 (1994).
Purpose
of
investigation

preliminary

The principal purpose is to

determine whether a crime has been
committed and whether there is
probable cause to believe that the
accused is guilty thereof.(Drilon v. CA,
256 SCRA 280 (1996).
Salonga v. Cruz Pano, 134
SCRA 438 (1985), sums up the
purpose and nature of PI and the duty
of the prosecutor in connection
therewith, thus:
The purpose of a PI is to
secure the innocent against hasty,
malicious and oppressive prosecution
and to protect him from an open and
public accusation of crime, from
trouble, expense and anxiety of a
public trial, and also to protect the
state from useless and expensive
trials. The right to a PI is a statutory
grant, and to withhold it would be to
transgress
constitutional
due
process.xxx It is a part of the
guarantees of freedom and fair play
which are birthrights of all who live in
our country. xxx
Right to preliminary investigation
The right to a PI is not a
constitutional but merely a statutory
right. Nonetheless it is a component
part of due process in criminal justice.
It is not a mere formal or technical
right; it is a substantive right. (Go v.
CA, 206 SCRA 138 (1992).

Waiver of right; when is there or

no waiver.
It being a personal right, it can
be waived expressly or by implication.
(People v. Lazo, 198 SCRA 274 (1991)
Nonetheless, lack of PI is not a
ground to quash or dismiss an
information, nor does it affect the
courts jurisdiction. Where there is no
PI, the accused must invoke it before
or at the time of entering a plea or
arraignment.
An accused who after his arrest
filed bail and proceeded to trial
without previously raising the issue or
claiming lack of PI waived the same;
however, it is not waived if he also
asked for PI before the bail is
approved. (Go. V. CA, 206 SCRA 138
(1992).
The refusal of the court to
remand the case for PI can be
controlled
by
certiorari
and
prohibition
to
prevent
trial.
(Romualdez v. Sandiganbayan, 244
SCRA 152 (1995).
Who are not entitled to PI.
General rule: a person accused of
a crime punishable by at least 4
years, 2 months and 1 day is
entitled to PI.
Exceptions:
1. Those with lower penalty;
2. Special
laws
provide
otherwise;
3. Cities whose charter require
PI;
4. Person
arrested
lawfully
without warrant. Inquest or
a summary investigation is
conducted
to
determine
whether he should remain
under custody and then be
charged in court if there is
probable cause. The person
arrested may ask for PI, but
he has to sign a waiver of
Art. 125 of RPC. This,
however, does not preclude
him from applying for bail.
If prosecutors says that
arrest was not lawful:
a). Recommend release;
b).
Note
down
the
disposition;

12

c).
Prepare
brief
memorandum
of
the
reasons for the action
taken; and
d). Forward to city or
provl pros. for action.
If recommendation for
release is approved but the
evidence warrants conduct of
PI, release order shall be
served
by
officer
having
custody and shall direct the
officer to serve upon detainee
the subpoena or notice of PI.
Who
may
conduct
PI
determine probable cause:

and

1. Provincial or city prosecutors

and their assistants;
2. National and Regional
State
Prosecutors;
3. Other
officers
as
maybe
authorized by law.
Judges of the 1st level courts are
no longer allowed to conduct PI
(Sibulo v. Toledo-Mupas, A.M.
No. MTJ-07-1686, June 12,
2008)
4. COMELEC-legal officers have
concurrent (by virtue of RA
9369)
powers
with
other
prosecuting arms of the govt
re: election offenses under the
Omnibus Election Code; (Art.
IX, Sec. 20, Constitution)
5. Ombudsman-on its own or on
complaint by any person, any
act or omission of any public
officer or employee, office or
agency, when such act or
omission appears to be illegal,
unjust, improper or inefficient.
It has primary jurisdiction over
cases
cognizable
by
the
Sandiganbayan.
6. PCGG with the assistance of the
Sol Gen and other govt
agencies may investigate, file
and
prosecute
cases
investigated by it. (EO No. 14,
May 7, 1986)
Procedure of PI must be strictly
followed:
1. Filing
of
complaint
with
prosecutor;
Hierarchy
before
whom
affidavits may be subscribed:
- Prosecutor

2.

3.
4.
5.
6.

7.

8.

9.

- Government official
- Notary public
Dismissal
or
issuance
of
subpoena
a) Dismiss if no ground to
conduct investigation
b) Issue subpoena if there is
ground
Filing of counter-affidavit
Not in the rules but REPLY and
REJOINDER may be filed;
If no counter-affidavit, pros to
resolve
Clarificatory
hearing,
if
necessary; no right of crossexamination
(NOT
INDISPENSABLE).
Questions
should be coursed through the
prosecutor.
Determination by prosecutorwithin 10 days from termination
of investigation-whether there
is ground to hold respondent
for trial.
Resolution:
-there is ground for trialprepare both the resolution and
information with certification
that: a) he has examined the
complainant and witnesses b)
there is ground to say that a
crime
was
committed;
c)
accused
probably
guilty;
accused informed; d) given
opportunity to controvert
-there is no ground-recommend
dismissal. BUT the absence of
certification does not invalidate
the information as it is not an
essential part of it.
Forwarding of records for
action/approval before filing or
dismissal
-10 days to approve or reverse
SINCE
no
complaint
or
information may be filed or
dismissed
by
investigating
prosecutor without the prior
written
authority
of
the
provincial or city prosecutor.

RULE 113. Arrest

What is arrest? (Rule 113, Sec. 1)
Arrest is the taking of a person
into custody in order that he may be
bound to answer for the commission
of an offense
How is arrest made? (Rule 113,
Sec. 2)
13

An arrest is made by an actual

restraint of a person to be arrested, or
by his submission to the custody of
the person making the arrest.
No violence or unnecessary
force shall be used in making an
arrest. The person arrested shall not
be subject to a greater restraint than
is necessary for his detention.
In the issuance of a warrant of
arrest, is a judge required to
personally
examine
the
complainant and witnesses he may
produce?
No. He only has to personally
evaluate the resolution (from the
prosecutor)
and
the
supporting
evidence.
What is the lifetime of a warrant
of arrest?
There is no definite lifetime of a
warrant of arrest. It remains valid and
effective until it has been executed or
otherwise recalled by the court
issuing it.
What is the lifetime of a search
warrant?
A search warrant has a definite
10-day lifetime from its date of issue.
What is the remedy of a peace
office if the warrant of arrest was
lost?
An arresting officer shall apply
for an alias warrant if the warrant of
arrest is lost.
Duties and Rights of an Arresting
Officer
Note: for the Duties and Rights of a
Peace Officer Just read the codal.
Duties of an Arresting Officer.
1. Duty to execute warrant of
arrest within 10 days from
receipt.
2. Duty to make a report to the
judge within 10 days from the
expiry of the 10 day period to
execute the warrant.
3. A) In case of arrest by virtue of
a warrant duty by the
arresting officer to inform the

accused of his authority and the

fact that a warrant has been
issued for his arrest.
B) In case of warrantless arrest
- duty by the arresting officer to
inform the accused of his
authority and the cause for the
arrest.
4. Duty to apprise the accused of
his Constitutional Rights.
5. Duty to deliver the accused to
the nearest police station or jail
without necessary delay.
Rights of an Arresting Officer.
1. Summon
assistance
in
effecting arrest.
2. Right to break into a
building or enclosure.
3. Right to break out from a
building or enclosure.
What is the duty of an officer
executing a warrant? (Rule 113,
Sec. 3)
It shall be the duty of the
officer executing the warrant to arrest
the accused and deliver him to the
nearest police station or jail without
unnecessary delay. This is also the
same duty of a person making a valid
warrantless arrest in case of under
Sec. 5, of this rule, paragraphs a and
b.
*If a question asks for the duty of an
officer executing a warrant, simply
state this. But if it is asking for the
duties of an arresting officer in a
generic sense, enumerate the list
above.
Is there a duty by the arresting
officer not included by the Rules?
Yes.
It
is
the
duty
apprise/inform the accused of
Constitutional Rights.

to
his

Note: Expanded Miranda Rights

under the Mahinay Doctrine. 11
Rights
What must an arresting officer
inform the accused upon his
arrest? (People v Mahinay, 1999)
Under the Mahinay doctrine, an
arresting officer must inform the

14

accused of his expanded Miranda

rights as follows.
1. The person arrested,
detained, invited or under
custodial investigation must be
informed in a language known
to and understood by him of the
reason for the arrest and he
must be shown the warrant of
arrest, if any; Every other
warnings,
information
or
communication must be in a
language
known
to
and
understood by said person;
2. He must be warned
that he has a right to remain
silent and that any statement
he makes may be used as
evidence against him;
3. He must be informed
that he has the right to be
assisted at all times and have
the presence of an independent
and
competent
lawyer,
preferably of his own choice;
4. He must be informed
that if he has no lawyer or
cannot afford the services of a
lawyer, one will be provided for
him; and that a lawyer may also
be engaged by any person in
his behalf, or may be appointed
by the court upon petition of
the person arrested or one
acting in his behalf;
5. That whether or not
the person arrested has a
lawyer, he must be informed
that no custodial investigation
in any form shall be conducted
except in the presence of his
counsel or after a valid waiver
has been made;
6. The person arrested
must be informed that, at any
time, he has the right to
communicate or confer by the
most
expedient
means

telephone, radio, letter or

messenger with his lawyer
(either retained or appointed),
any member of his immediate
family, or any medical doctor,
priest or minister chosen by
him or by any one from his
immediate family or by his
counsel, or be visited by/confer
with duly accredited national or
international non-government
organization. It shall be the
responsibility of the officer to

ensure
that
this
is
accomplished;
7. He must be informed
that he has the right to waive
any of said rights provided it is
made voluntarily, knowingly
and intelligently and ensure
that he understood the same;
8. In addition, if the
person arrested waives his
right to a lawyer, he must be
informed that it must be done
in writing AND in the presence
of counsel, otherwise, he must
be warned that the waiver is
void even if he insists on his
waiver and chooses to speak;
9. That
the
person
arrested must be informed that
he may indicate in any manner
at any time or stage of the
process that he does not wish
to be questioned with warning
that once he makes such
indication, the police may not
interrogate him if the same had
not yet commenced, or the
interrogation must cease if it
has already begun;
10.
The
person
arrested must be informed that
his initial waiver of his right to
remain silent, the right to
counsel or any of his rights
does not bar him from invoking
it at any time during the
process, regardless of whether
he may have answered some
questions or volunteered some
statements;
11.
He must also
be informed that any statement
or evidence, as the case may
be, obtained in violation of any
of the foregoing, whether
inculpatory or exculpatory, in
whole or in part, shall be
inadmissible in evidence.
12.
RA
9745,
Anti
Torture Act of 2009. Sec. 12
Right to physical, medical and
psychological
examination.Before and after interrogation,
one arrested, detained or under
custodial investigation shall be
informed of this right.
Examination
by
an
independent and competent
doctor of his choice, including
that of his immediate family.
15

If the person arrested,

detained or under investigation
is a female, she shall be
attended to preferably by a
female doctor.
NOTE: Waiver of this
right MUST be in WRITING
& IN THE PRESENCE &
WITH
ASSISTANCE
OF
COUNSEL.
NOTE:
(RELATED
CONSTITUTIONAL
PROVISION)
Art. III, Sec. 12 (1)right to counsel of any person
under investigation for an
offense.
Sec. 12(2)- no torture,
force,
violence,
threat,
intimidation or any other means
which vitiate free will shall be
used
against
him.
Secret
detention
places,
solitary,
incommunicado,
or
other
similar forms of detention are
prohibited.
Sec. 12(3)- Any
confession obtained in violation
of this or Sec. 17 hereof shall
be inadmissible in evidence.
Warrantless Arrests
Never forget Rule 113, Sec. 5.
Arrest without warrant; when lawful.
A peace officer or a private person
may, without a warrant, arrest a
person:
(a) When, in his presence, the person
to be arrested has committed, is
actually committing, or is attempting
to commit an offense;
(b) When an offense has just been
committed, and he has probable cause
to
believe
based
on
personal
knowledge of facts or circumstances
that the person to be arrested has
committed it; and
(c) When the person to be arrested is
a prisoner who has escaped from a
penal establishment or place where
he is serving final judgment or is
temporarily confined while his case is
pending, or has escaped while being

transferred from one confinement to

another.
In cases falling under paragraph (a)
and (b) above, the person arrested
without a warrant shall be forthwith
delivered to the nearest police station
or jail and shall be proceeded against
in accordance with section 7 of Rule
112
Remedies
1)
If no case has been filed
against the arrested person and he
remains detained, his remedy is to file
a petition for habeas corpus on the
ground that his arrest and detention
is illegal. Bail may also be posted.
2)
If a case has been filed
against the arrested person, his
remedy is to file a motion to quash the
complaint or information on the
ground that the court has no
jurisdiction over his person.
3)
If a person has not yet
been arrested or detained, but there
is a standing warrant for his arrest,
his remedy is to file a motion to quash
the warrant of arrest on the ground
that it was improperly issued.
4)
If a person has already
been arrested by virtue of a warrant
of arrest yet he claims that the
warrant was improperly issued, his
remedy is to file a motion to quash the
complaint or information on the
ground that the court has not
acquired jurisdiction over his person.
In all these cases, the accused
must claim that the arrest and
detention is illegal.
When must the accused assail the
validity of his arrest?
Any objection involving the
arrest or the procedure in the courts
acquisition of jurisdiction over the
person of an accused must be made
before he enters his plea. Otherwise,
the objection is deemed waived.

RULE 114. Bail

What is bail? (Rule 114 Sec. 1)
Bail is the security given for the
release of a person under the custody
16

of law to guarantee his appearance

when required by the rules of court or
the court.
What are the forms of Bail?
Bail may
following forms.
1.
2.
3.
4.

be

given

in

the

Cash deposit
Property Bond
Corporate Surety
Recognizance

May the court insist that bail shall

only be cash bond?
No. The court can never insist
that only one type or form of bail shall
be posted. Doing so violates the right
of the accused to bail.
What is recognizance?
When is one allowed
released on recognizance?

to

be

Recognizance is allowed in the

following instances.
1. If the charge against the
accused is for violation of a
city or municipal ordinance,
light offense, or if the
penalty does not exceed 6
months of imprisonment.
2. If the accused is detained
for a period equal to or more
than
the
minimum
imposable penalty. In such
case, the accused may be
released on recognizance, or
on a reduced bail, at the
discretion of the court.
3. If the accused is a youthful
offender.
4. If accused files application
for probation and he is
unable to post bail
What are the Conditions of Bail?
(Rule 114, Sec. 2)
The following are the
conditions of bail.
1. Once approved, the bail shall
be effective and remain in force
at all stages of the case unless
cancelled or until promulgation
of the RTC whether the case
was originally filed in or
appealed to it.

2. That the accused shall appear

in court whenever required by
court or the rules of court.
3. Failure to appear in court
notwithstanding any waiver
shall
constitute
trial
in
absentia.
4. That accused shall surrender
him self to court for execution.
When is appearance by the
accused required by the Rules of
Court?
The presence of the accused is
required by the rules in his
arraignment and entry of plea. (and
promulgation of judgment as opined
by other authors.)
a) Arraignment and Entry of
Plea

Accused
must
personally enter his plea.
Without a valid plea, any
subsequent proceedings are
void. Nonetheless, an invalid
plea will bar the application
of Double Jeopardy.
b) Promulgation

Some
authors insist
that the
presence of the accused is
important in promulgation.
The absence of the accused
during promulgation will not
invalidate the proceedings.
However, it will cause him to
lose his remedies against a
judgment of conviction such
as reconsideration, appeal,
and new trial.
When is appearance by the
accused required by the Court?
Appearance by the accused is
required by the court in the following.
a) In-court Identification In a
criminal action, the identity
of the accused just like the
crime itself must be proven
beyond reasonable doubt.
b) Trial in absencia trial in
absencia
may
proceed
provided the accused was
given due notice for the date
of trial.

17

*Therefore, if a question is asked

calling for the instances when the
accuseds presence is essential,
enumerate arraignment and entry of
plea, in-court identification, trial in
absencia. (promulgation may be
included)
Application
for
Determination of
Evidence of Guilt

Bail
and
Strength of

Procedure:
1. Accused applies for bail.
2. The
court
notifies
the
prosecution.
3. Bail hearing - The prosecution
presents evidence in opposition
to bail.
4. The court makes a resolution
whether the evidence of guilt is
strong or not. If the evidence of
guilt is strong, the application
is
denied.
Otherwise,
the
application is granted.
What is the remedy when the
application for bail is denied?
The remedy is to file a petition
for certiorari under Rule 65 on the
ground that the court committed a
grave
abuse
of
its
discretion
amounting to excess or lack of
jurisdiction in denying the application
for bail.
What is the quantum of proof for
bail application?
The quantum of proof to show
that the evidence of guilt for the
accused is strong is clear and
convincing evidence. The burden of
proof belongs to the prosecution.
When Bail is not REQUIRED:
In all of the following cases, bail is
not required prior to the release of
the person in custody, to wit:
1.
2.

3.

When the law or Rules so

provided (Sec. 16, Rule
114);
When a person has been in
custody for equal to or more
than the possible maximum
imprisonment (Sec. 16);
After 30 days of preventive
imprisonment
if
the

4.

5.

18

maximum penalty to which

the
accused
may
be
sentenced is destierro (Sec.
16);
Offenses punishable by less
than 4 years, 2 months and
1 day when the MTC Judge
is satisfied that there is no
necessity for placing the
accused under custody, he
may issue summons instead
of a WA (Sec. 8(b), Rule
112);
Under Sec. 1, RA 6036,
(approved August 4, 1969),
it provides that baill shall
not
be
required
in:
Violations of municipal or
city ORDINANCES, light
felony and/or an offense, the
prescribed penalty is not
higher than 6 months and/or
fine of P2,000 or both where
it is established that he is
unable to post bail, EXCEPT
if:
a. He is caught in flagrante;
b. when he confesses to the
commission
of
the
offense
UNLESS
repudiated by him in a
sworn statement and in
open court;
c. when he has previously
escaped
from
legal
confinement,
evaded
sentence, or jumped bail;
d. he is found to have
previously violated Sec. 2
of the law;
e. he
is
recidivist
or
habitual delinquent or
has been convicted for an
offense to which the law
attaches an equal or
greater penalty or for
two or more offenses to
which it attaches a
lighter penalty;
f. commits
the
offense
while on parole or under
conditional pardon; and
g. he has previously been
pardoned
by
the
municipal or city mayor
for
violation
of
ordinances for at least
two times.
h. NOTE: Instead of bail,
Sec. 2 requires the
person to sign in the

presence of 2 witnesses
of good standing in the
community
a
sworn
statement
binding
himself to report to the
COC hearing his case
every 2 weeks.
Bail as Matter of Right, Court
Discretion, or Neither
Bail as a Matter of Right (Rule
114, Sec. 4)
The accuseds application for bail will
always be granted by the court.
Bail is a matter of right in the
following instances:
1. Before or after judgment of
conviction by the MTC.
*thus all light offenses and
correccional offenses are
bailable.
2. Before judgment of conviction
by the RTC of offenses not
punishable by death, reclusion
perpetua or life imprisonment.
*thus, during trial or before
conviction
of
all
offenses
punishable by prision mayor
and reclusion temporal are
bailable.
3. Before judgment of conviction
by
RTC
for
an
offense
punishable by death, reclusion
perpetua, or life imprisonment
when the evidence of guilt is
not strong.
Bail as a Matter of Discretion
(Rule 114, Sec. 5)
The accuseds application for
bail may or may not be granted by the
court upon its discretion.
Bail is a matter of discretion in
the following instances:
1. After judgment of conviction by
the RTC and the penalty is less
than death, reclusion perpetua,
and life imprisonment provided
judgment has not become final.
*An application for bail when it is a
matter of discretion must be filed
with the RTC before the records
has been transmitted to the
appellate court. If the records of

the case were transmitted to the

appellate court, the application for
bail must be filed with it.
*Thus, perfection of
offenses punishable by
and reclusion temporal
case bailable upon
discretion.

an appeal for
prision mayor
will make the
the courts

Bail is Neither a Matter of Right

nor Discretion
There is no bail allowed as it is not a
matter of right or within the courts
discretion.
1. After judgment of conviction by
the RTC and the penalty
imposed is death, reclusion
perpetua, or life imprisonment.
2. After judgment of conviction by
the RTC and the penalty
imposed is more than 6 years
but less than death, reclusion
perpetua, or life imprisonment
and the following bail negating
circumstances
are
present:
(FIVE)
a. The accused is a recidivist,
quasi-recidivist,
habitual
delinquent
or
that
he
committed the offense with
the
aggravating
circumstance of reiteracion.
b. The accused has escaped
confinement,
evaded
sentence, or violated any of
the conditions of his bail
without justifiable reasons.
c. The
accused
is
under
probation,
parole,
or
conditional pardon.
d. The accused has undue risk
of
committing
another
offense.
e. The accused has probability
of flight if released on bail.
3. In capital offenses, or an
offense punishable by reclusion
perpetua or life imprisonment,
when the evidence of guilt is
strong regardless of the stage
of the criminal prosecution
(Sec. 7, Rule 114);
4. After judgment has become
final (Sec. 24, Rule 114);
5. After
the
accused
has
commenced to serve sentence
(Sec. 24, Rule 114)

19

NOTE:
Bail negating
circumstances determine bail as a
matter of discretion from total denial
of bail.
Is the absence of any bail negating
circumstance an assurance for the
grant of bail?
No. A finding that none of the
said circumstances is present will not
automatically result in the grant of
bail.
Such
finding
will
simply
authorize the court to use the less
stringent sound discretion approach.
Where to post bail (Rule 114, Sec.
7)
1. Bail may be filed in the court
where the case is pending and
if the judge of that court is
absent or unavailable, then the
bail may be filed in the RTC or
MTC of the same place. If the
accused is arrested in another
place other than in which the
case is pending, then bail may
be filed in the RTC or MTC of
that place.
Eg. A is charged with
Homicide. An information was
filed before the RTC Branch 5
in Baguio. If the judge of
Branch
5
is
absent
or
unavailable, the accused may
file bail in other MTCs or
RTCs of Baguio City. If A is
arrested in Cebu, he may also
post bail in the RTC (first) or
MTC (secondarily) of Cebu.
2. If bail is a matter of discretion
or
the
accused
desires
recognizance,
then
the
application therefrom must be
filed with the court where the
case is pending.
3. If the accused is arrested or
held without any charge having
been brought against him, then
the accused shall file bail in any
court of the city or province
where he is detained. He may
choose this remedy aside from
petition for habeas corpus.
4. If bail is a matter of discretion,
then bail may be filed with the
RTC
that
rendered
the
decision/judgment of conviction

notwithstanding that a notice of

appeal has been filed, provided
the records of the case has not
yet been transferred/filed with
the appellate court.
Note:
Perfection
of
an
appeal.
An appeal is deemed
perfected if a notice of appeal
has been filed within the time
period for perfecting an appeal,
which is 15 days from the date
of judgment by the RTC and the
corresponding docket fees were
paid.
Significance
of
Perfecting an Appeal.
The moment the records
of
the
case
have
been
transmitted to the appellate
court, the court loses its
jurisdiction over the case. Once
that happens, the trial court
has no authority to rule upon
the bail application of the
accused.
5. Where
the
judgment
of
conviction changes the nature
of the offense from non-bailable
to bailable, the bail may only be
filed with the appellate court.
Is bail a bar to objections on
illegal arrest or lack of or
irregularity
of
preliminary
investigation? (Rule 114, Sec. 26)
No, bail is not a bar to
objections on the validity of an arrest,
warrant of arrest, or lack of or
irregular preliminary investigation.
This is a deviation from the old rule
where posting bail cures all defects in
the arrest, warrant of arrest, and
preliminary investigation. However,
all of those must be assailed
before the accused enters his plea,
otherwise
their
defects
are
deemed waived.
Other instances where Bail is
Available
Deportation Proceedings.
For
aliens
undergoing
deportation
proceedings,
bail
is
discretionary upon the Commissioner
of Immigrations.
20

Extradition Proceedings.
An extradite must apply for
bail. He must prove that he is not a
flight risk by clear and convincing
evidence. The Extradition Court
decides whether or not to grant the
bail.
Note: No bail is allowed for cases
pending in Military Tribunals.
Forfeiture of Bond (Rule 114, Sec.
21)
What happens if the accused fails
to appear in court when required?
If the accused fails to appear in
court when required by the court or
by the rules of court, the bail is
ordered forfeited in favor of the
government but his bondsmen are
given 30 days to present the
accuseds body in court and to explain
why no final judgment shall be
rendered against the bond and why
the accused failed to appear when
first required to do so. If the
bondsmen do not comply, the bail is
confiscated
in
favor
of
the
government.
Procedure:
1. The accused fails to appear in
court.
2. The court orders forfeiture of
the bond though such order is
not yet final.
3. The bond shall be forfeited in
favor of the government.
4. The bondsman is given 30 days
within which to:
a) Produce the body of their
principal
b) Explain why the accused
did not appear before the
court when required to
do so.
5. If the bondsman complies, the
order of forfeiture is set aside.
6. If the bondsman does not
comply, the court will issue an
order of confiscation which
makes the earlier order final.
Cancellation of Bail (Rule 114,
Sec. 22)
Cancellation
bondsman:

by

Application

of

Upon
application
of
the
bondsman with due notice to the
prosecution, bail may be cancelled by
motion or petition upon surrender of
the accused or proof of his death.
Automatic Cancellation:
Cancelation of Bail is automatic
upon the following:
1. Acquittal of the accused
2. Dismissal of the case
3. Execution of the judgment of
conviction
2014 UPDATES IN CRIMINAL
PROCEDURE - BAIL APPLICATION
and MODES OF SERVICE OF
SUBPOENA
What are the requirements for
motion
for
bail
in
offenses
punishable by death, reclusion
perpetua, or life imprisonment?
(Section 6, A.M. No. 12-11-2-SC,
March 14, 2014)
As provided for in Section 6,
A.M. No. 12-11-2-SC, March 14, 2014,
but took effect May 1, 2014
(Guidelines for Decongesting Holding
Jails by Enforcing the Rights of
Accused Persons to Bail and to
Speedy Trial), the requirements are:
a) the hearing of the motion for
bail shall be summary;
b) the prosecution has the
burden of showing that the
evidence of guilt is strong;
c) if the accused wants the
court
to
consider
his
evidence, he may submit the
affidavits of his witnesses
attesting to his innocence;
d) at the hearing of the motion
for bail, the prosecution
shall present its witnesses
with the option of examining
them on direct or adopting
the affidavits they executed
during
the
preliminary
investigation as their direct
testimonies;
e) the court shall examine the
witnesses on their direct
testimonies or affidavits to
21

ascertain if the evidence of

guilt is strong;
f) the court shall then allow
counsel from both sides to
examine the witnesses as
well;
g) afterwards, the court shall
hear the oral arguments of
the parties on whether the
evidence of guilt is strong;
h) within
48
hours
after
hearing, the court shall
issue an order containing a
brief
summary
of
the
evidence adduced before it,
followed by its conclusion of
whether the evidence of
guilt is strong.
What are the modes of service of
subpoena?
Under Section 6, Rule 21 of the
1997 Rules of Civil Procedure, service
of subpoena shall be made in the
same manner as personal or
substituted service of summons.
However, in criminal cases, the
following are the additional modes of
service of subpoena as provided for in
Section 11, A.M. No. 12-11-2-SC,
March 14, 2014:
a) electronic mail (e-mail);
b) mobile
phone,
either
through phone calls or
through short messaging
service.
How may service of subpoena be
proved?
When served by electronic mail
or mobile phone, service of subpoena
may be proved by:

a) printouts of sent email and

the acknowledgment of the
recipient;

b) printouts

of

electronic
messages
transmitted
through
the
courts
equipment or device and the
acknowledgment
of
the
recipient; or

c) reports of phone calls made

by the court.

RULE 115. Rights of the

Accused.
(Just read the provision. They are
better taken in Constitutional Law
and Human Rights subjects)
Note: Be sure to cite the Proper
Rights. Just simple changes in the use
of articles will change the concept of
the Rights- eg. The proper right is
Right Against Double Jeopardy and
not Right to Double Jeopardy;
Right Against Self-Incrimination and
not
Right
to
Self-Incrimination;
Freedom from Arbitrary Detention not
Freedom to Arbitrary Detention;
Right to Confront and Cross-examine
Witnesses against him and not Right
against Confrontation and Crossexamination of Witnesses presented
against him; etc.
For purposes of Criminal
Procedure, focus on the 1) order or
reverse order of trial, 2) right against
double jeopardy, 3) the right to
appeal, 4) the right to be informed of
the charges and accusations against
the
accused,5)
freedom
from
arbitrary detention, 6) and the right
to bail. The other rights are better
discussed
in
political
and
constitutional
law
subjects
and
evidence and other remedial law
subjects validity of extrajudicial
admission, admissibility of evidence,
qualification of witnesses to testify,
etc.
I. Presumption of Innocence and
Order of Trial
The
constitutional
presumption of innocence dictates
the order of trial. It is the
prosecution that has the burden of
proof to show the guilt of the accused
beyond
reasonable
doubt.
Consequently, it is the prosecution
that starts presenting its witnesses
and evidence first. There can only
be a reverse order of trial once the
accused
claims
any
of
the
justifying,
exempting,
or
any
extenuating circumstances. All of
these are in the nature of
confession and avoidance.
II. Right to Be Informed of the
Nature
of
the
Charges;

22

Complaint/Information,
Arraignment, and Plea
The right of an accused to be
informed of the nature of the charges
against him dictates the rules
regarding the validity of a complaint
or information, arraignment, and plea.
III. Right Against Double Jeopardy.
Two kinds under 1987 Constitution
Article III, Section 21:
1. 1st kind- No person shall be
twice put in jeopardy of
punishment
for
the
same
offense.
2. 2nd kind- If an act is punished by
a law and an ordinance,
conviction or acquittal under
either shall constitute a bar to
another prosecution for the
same act.
Requisites
to
validly
Double Jeopardy:

invoke

1.
A first jeopardy must
have validly attached prior to the
second
2.
The first jeopardy must
have been validly terminated
3.
The
second
jeopardy
must be for the same offense or the
second
offense
includes
or
is
necessarily included in the offense
charged in the first information or is
an attempt to commit the offense or a
frustration
thereof
Requisites for first kind:
1. There is valid complaint or
information
2. The complaint is filed in a court
of competent jurisdiction.
3. The
accused
is
validly
arraigned and has entered his
plea
4. The
accused
was
either
acquitted, convicted, or the
case against him was dismissed
without his express consent.
Note: For purposes of criminal
procedure, always check the first 3

requisites when a question on double

jeopardy is raised. The fourth
requisite is a better focus in political
law as it may involve the accuseds
right to a speedy disposition of his
case. In criminal procedure, just
remember that the granting of a
demurrer
to
evidence
and
discharge of an accused as a state
witness is equivalent to acquittal.
Note: IVLER DOCTRINE: A 2014
Bar Question on Remedial Law is
based on this case. This is a rich
source of questions in Criminal,
Remedial, and Political Law.
Facts: Jason Ivler while carelessly
driving his car rammed another car,
wrecking it and killing its passenger A
while seriously injuring another
passenger, B. Upon the victims
complaints, the prosecutor filed two
criminal informations first, one for
Reckless Imprudence Resulting In
Damage to Property and second, one
for Reckless Imprudence Resulting In
Homicide
and
Serious
Physical
Injuries. Ivler pleaded guilty to the
first charge upon arraignment. He
was meted the penalty of public
censure, and ordered to pay damages.
When Ivler was arraigned for the
second charge, he invoked his right
against double jeopardy and moved
for the dismissal of the case. Ivler
argued that the two crimes charged
against him before the court arose
from only one act. The State
Prosecutor argued that the crimes of
Damage to Property, Homicide, and
Serious Physical Injury are different
and distinct from each other.
May the second case proceed?
Answer: No, the second case may not
proceed. There is only one crime of
Reckless Imprudence or Negligence
no matter how many resulting crimes
may be produced. In a case for
imprudence
or
negligence,
the
complaint or information is for the act
of negligence or imprudence and not
for its effects. Allowing charges to
prosper based on its effects effectively
splits a single cause of action. This
violates the accuseds right against
double jeopardy.
(2014 Bar Question) McJolly Bee Do is
a trouble-maker of sorts, always
23

getting into brushes with law. In one

incident, he drove his Humvee
recklessly, hitting a pedicab which
sent its driver and passengers into
different directions. The pedicab
driver died while two of his
passengers suffered slight physical
injuries. Two (2) informations were
then filed against McJolly. One, for
Reckless Imprudence resulting in
Homicide and Damage to Property,
and two, for Reckless Imprudence
resulting in Slight Physical Injuries.
The latter case was scheduled for
arraignment
earlier,
on
which
occasion, McJolly pleaded guilty. He
was meted out the penalty of public
censure. A month later, the case for
Reckless Imprudence Resulting in
Homicide
was
also
set
for
arraignment. Instead of pleading,
McJolly interposed the defense of
Double Jeopardy. Resolve
Answer: Same as the earlier question.
Note: The focus of the answer
depends on what subject this question
was asked. If the question is asked in
Remedial Law, the focus is on the
splitting of cause of action. If the
question is asked in Criminal and
Political Law, focus on Double
Jeopardy, its concept and requisites.
By way of another example, take
this question May one foreclose a
mortgage and at the same time, file
an action to recover sum of money
based on the mortgage?
Answer: (Civil Law) No, one may not
avail of the aforesaid remedies
simultaneously. Availing of one is a
waiver of the other. These remedies
are in the alternative and not
cumulative.
Answer: (Remedial Law) No, one may
not avail of the aforesaid remedies
simultaneously. Both actions are
based on a single cause of action,
which is the indebtedness secured by
the mortgage. Splitting a single cause
of action is not allowed.
Judgment of Acquittal Attained
Through Errors of Law Will Attain
Finality
What if the judgement of acquittal
is erroneous?

Double Jeopardy sets in.

Errors or irregularities, which do
not render the proceedings a
nullity,
will
not
defeat
the
judgement of acquittal. These are
errors of law and not errors of
jurisdiction.

dialect known to him, and

asking
him
whether
he
pleads guilty or not guilty.
The prosecution may call at the
trial witnesses other than those
named in the complaint or
information.

Case: (People vs Judge Hernando,

108 SCRA 121) The accused were
charged and convicted of frustrated
murder. When a new evidence and
witness was allegedly found out which
would prove the accuseds innocence,
a new trial was held. The prosecution
then contended that the facts sought
to be established by the proposed
testimonies of new witnesses were not
newly discovered evidence, having
been known to the accused even
during the trial, and that they would
not in any way alter the judgment of
conviction. Under the facts of the
case, the Court should have sustained
the prosecutors argument and never
had a new trial. The court proceeded
to acquit the accused. On the SC
level, the SC dismissed the judge
but the judgement of acquittal,
though erroneous, was deemed
valid.

b) The accused must be present

at the arraignment and must
personally enter his plea. Both
arraignment and plea shall
be made of record, but failure
to do so shall not affect the
validity of the proceedings.

RULE 116. Arraignment and

Plea
Rationale for Arraignment: To
comply with the Constitutional Right
of the Accused to be informed of the
nature and cause of accusations
against him. This right may not be
waived. Arraignment is the stage
where the accused is formally
informed of the charges against him.
Due to this, strict compliance with the
rules on arraignment is needed.
*Memorize Sec. 1 of Rule 116.
Rule 116. Sec. 1: Arraignment and
plea; how made.
a) The accused must be arraigned
before the court where the
complaint or information
was filed or assigned for
trial. The arraignment shall be
made in open court by the
judge or clerk by furnishing
the accused with a copy of
the
complaint
or
information,
reading
the
same in the language or
24

c) When the accused refuses to

plead or makes a conditional
plea, a plea of not guilty shall
be entered for him.
d) When the accused pleads
guilty
but
presents
exculpatory evidence, his plea
shall be deemed withdrawn,
and a plea of not guilty shall be
entered for him.
e) When the accused is under
preventive detention, his case
shall be raffled and its records
transmitted to the judge to
whom the case was raffled
within three (3) days from the
filing of the information or
complaint. The accused shall be
arraigned within ten (10)
days from the date of raffle.
The pre-trial conference of
his case shall be held within
ten
(10)
days
after
arraignment.
f) The private offended party
shall be required to appear
at
the
arraignment
for
purposes of plea bargaining,
determination
of
civil
liability, and other matters
requiring his presence. In
case of failure of the offended
party to appear despite due
notice, the court may allow the
accused to enter a plea of guilty
to a lesser offense which is
necessarily included in the
offense
charged
with
the
conformity
of
the
trial
prosecutor alone.

g) Unless a shorter period is

provided by special law or
Supreme Court circular, the
arraignment shall be held
within thirty (30) days from
the date the court acquires
jurisdiction over the person
of the accused. The time of
the pendency of a motion to
quash or for a bill of
particulars or other causes
justifying suspension of the
arraignment
shall
be
excluded in computing the
period.
Note: Always remember that a valid
arraignment and plea will cure
defects
in
the
complaint
or
information, preliminary investigation,
and illegality of arrest. These issues
must be raised before the accused is
arraigned and enters his plea.
What are the two parts of
arraignment?
/
How
is
arraignment done? (Rule 116 Sec.
1)
The two parts of arraignment are the
following: / Arraignment is done in the
following manner:
1. The complaint or information
furnished and read to the accused
in open court in a language or dialect
known by him.
*This may not be waived. Any
defect may be a ground to
impugn
the
validity
of
arraignment.
2. The accused personally enters
his plea.
*The presence of the accused
during arraignment is required
by the Rules of Court.
Case: The accused was charged with
20 counts of estafa. Upon his
arraignment, the first information was
read in its entirety, and the accused
was asked whether he pleads guilty or
not to the charge. The accused
pleaded not guilty. To save time, as
the other informations were all
substantially
the
same,
the
accused was simply asked whether
he pleads guilty or not to the
charge of estafa while referring to
the 19 other criminal case docket
25

numbers.
The contents of the
subsequent
19
criminal
informations were never read to
the accused. In all of the charges,
the accused pleaded not guilty. Is
the arraignment and plea valid?
Suggested Answer which is in
conformity with the rules: (There is no
Supreme Court Decision on this
matter yet, but this is a prevailing
practice to save the time of Courts.)
The arraignment and plea as to
the first charge is valid while that
of the succeeding 19 charges for
estafa are void. Arraignment shall
be made by furnishing the accused
with a copy of the complaint or
information, reading the same in
the language and dialect known to
him, and asking whether he pleads
guilty or not. Strict compliance
with the Rules on Arraignment is
needed since this is the stage
where the accused is formally
informed of the nature and cause
of accusations against him.
Strict Compliance with the Rules
on Arraignment and Plea is
Needed
Note: *Any defect in the arraignment
and plea will make the subsequent
proceedings void. But even so,
without a valid plea and arraignment,
the right against double jeopardy may
not set in.
Note: *In order to have a valid trial in
absencia, the accused must have been
validly arraigned and his plea validly
entered.
Note:
But
an
Accuseds
constitutional right to due process
and right to be informed of the
nature and cause of accusation
against him may be satisfied even
without strict compliance to the
Rules on Arraignment and Plea.
Note: *While as a rule, strict
compliance
with
the
rules
of
arraignment and plea is required,
there are exceptional instances when
the Supreme Court ruled that
compliance with the Constitutional
Right of the Accused to be informed of
the nature and cause of accusation
against him and to due process has

been sufficient despite errors in the

arraignment and plea.
Case: The accused is arraigned after
trial when the prosecution has rested
its case and the defense presented its
evidence. In this case, the defense
counsel actively participated in the
trial and the Supreme Court ruled
that by such act, the accused was
aware of the nature and charges
against him and he was given his day
in Court. (People v Pangilinan, 518
SCRA 358)
This is a very exceptional case
so caution must be taken in answering
questions presenting situations where
one is required to look into the
validity of the arraignment and plea.
Wait for the circumstances justifying
the exceptions to arise before ruling
that the arraignment is valid.
In what court must arraignment
be made?/ Where is arraignment
made? (Rule 116 Sec. 1)
The accused must be arraigned
before the court where the complaint
or information was filed or assigned
for trial.
Effect of Accuseds
Nonappearance During
Arraignment on his Bail Bond.
Question: May his bond be forfeited
if the accused does not appear during
trial?
Answer: Not necessarily. The accused
may waive the right to be present in
court so that failure to appear in court
does not automatically lead to
forfeiture of bail.
Question: May his bond be forfeited
if the accused does not appear during
arraignment?
Answer: Yes. The presence of the
accused is required by the Rules
during Arraignment. As such, he may
not waive his right to be present at all
stages of the proceedings.
*Refer to earlier discussions on when
is the accuseds presence required by
Court or by the Rules of Court.
The Offended Partys Presence is
Needed During Arraignment and
Plea
26

Note: It is not just the accused who

must
be
present
during
the
arraignment and plea. The offended
party must also be present during
arraignment and plea for purposes of
plea bargaining, determination of the
accuseds civil liability, and other
matters requiring his presence. When
an accused pleads not guilty, it
constitutes a joinder of issues in the
criminal action.
But absence of the Offended
Party during Arraignment and Plea
will
not
render
subsequent
proceedings void.
Accused Must Personally Enter
His Plea
General Rule: The accused must
personally enter his plea.
Instances where the Court enters
a plea of not guilty.
1) The accused refuses to enter
a plea, such as in cases
where the accused wants to
quash the information or
hold
in
abeyance
the
proceedings
to
conduct
preliminary investigation.
2) The
accused
enters
a
conditional plea of guilty. A
conditional plea of guilty is
not a valid plea.
Eg. of a conditional plea - I admit raping the victim
but she seduced me.
- Pleading guilty to an offense
charged but asking for a
lesser
penalty
to
be
imposed.
3)

The accused pleads guilty

but presents exculpatory
evidence.
Eg.- The accused admits the
killing but the defense asks
that the court allow them to
prove the circumstance of
incomplete self-defense.

Case: Accused was charged with

homicide wherein he pleaded guilty
with condition to prove incomplete
self
defense. The judge found
evidence for complete self defense
and thus acquitted the accused. In the
present case, it is true, the accused
had first entered a plea of guilty.
Subsequently, however, he testified,

in the course of being allowed to

prove mitigating circumstances
that he acted in complete selfdefense. Said testimony, therefore
as the court a quo recognized in
its decision had the effect of
vacating his plea of guilty and the
court a quo 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.
Acquittal in such manner deprives the
prosecution of due process. If a
subsequent case is filed, it may
proceed. There will be no double
jeopardy as he was not validly
arraigned. (People v Balisacan, 17
SCRA 1119)
Effect of Entering Plea
*Entering a plea of not guilty
constitutes joinder of issues in the
criminal case.
*Entering a plea of guilty is a
judicial confession of guilt. All the
material
facts
alleged
in
the
information, including aggravating
circumstances are admitted. However,
conclusions of law are not admitted.
(Note: This is the same effect as that
of filing a demurrer to evidence.)
Voluntary Plea and Involuntary
Plea
Voluntary Plea: A voluntary plea will
always cure defects in the complaint
or
information,
preliminary
investigation, or illegality of arrest.
Involuntary Plea: The plea was not
made by the accused but by the
Court.
The accused, who claims that he
was illegally arrested, refused to
enter a plea when arraigned;
whereupon, the court entered a
plea of not guilty for him. May he
still question the validity of his
arrest?
Yes. The principle that the
accused
is
precluded
from
questioning the legality of his arrest
after arraignment is true only if he
voluntarily enters his plea and
participates during the trial, without
previously invoking his objections
thereto. (Borlongan Jr. v. Pena, et al.
G.R. No. 143591, Nov. 23, 2007).
27

Thus, the accused may still question

the legality of his arrest, etc. where,
at the arraignment, it is the court that
entered the plea of not guilty for him.
Plea of Guilty in a Capital Offense
Note: (Rule 116 Sec. 3) *There is no
rule requiring automatic conviction
upon plea of guilty for a capital
offense. Instead, the court shall
conduct a searching inquiry into the
voluntariness and full comprehension
of the consequences of his plea and
shall require the prosecution to prove
his guilt and the precise degree of
culpability. The accused may present
evidence in his behalf.
Plea of Guilty to a Non-Capital
Offense
(Rule 116 Sec. 3) When the
accused pleads guilty to a non-capital
offense, the court may receive
evidence
from
the
parties
to
determine the penalty to be imposed.
Plea Bargaining
In a plea bargaining, the
accused pleads guilty to a lesser
offense necessarily included in the
offense charged or pleads guilty to an
account involved in multiple accounts.
Eg. An accused is charged of
rape. He pleads guilty to seduction or
acts of lasciviousness.
What are the requisites of a valid
plea bargain? (Sec. 2, Rule 116)
The requisites of a valid plea
bargain are the following.
a. Consent of the offended
party.
b. Consent of the prosecutor.
c. Approval of the court.
May a plea for a lesser offense
with the consent of the prosecutor
be valid even without the consent
of the offended party? (Rule 116
Sec. 1 [f])
Yes, provided the offended
party is
duly notified
of
the
arraignment but notwithstanding the
notice, he failed to appear for
arraignment.
When is plea bargaining allowed?

Plea bargaining is allowed in

the following instances.
1. During arraignment, and
2. After
arraignment
but
before trial
May plea bargain be allowed even
after the trial has begun? (Daan v.
Sandiganbayan GR No. 163972-77,
March 28, 2008 citing People v.
Villarama, GR No. 99287, June 23,
1992, 210 SCRA 4266)
Yes, plea bargaining is valid
even after the prosecution rested its
case provided that the prosecution
does not have sufficient evidence to
convict the accused of the crime
charged. This is an exception to the
rule that plea bargaining is only
allowed during arraignment or after
arraignment but before trial.
Is there Double Jeopardy in Plea
Bargaining?
=NONE.
Is there a need to amend the
complaint or information in Plea
Bargaining? (Rule 116 Sec. 2)
No,
complaint
necessary.

amendment
of
or information is

the
not

Suspension of Arraignment

If the complaint or information

is vague, the accused may move/file a
motion for bill of particulars to enable
himself to properly plead and prepare
for trial.
When may a bill of particular be
filed?
A Bill of particular is filed
before arraignment.
What is the ground for filing a bill
of particular?
A bill of particular is filed when
the complaint or information is vague,
or any matter is not averred with
sufficient definiteness or particularity
to enable the accused to properly
plead and prepare for trial.
*Note: The material matter is averred
but it is not averred with sufficient
definiteness or particularity. In other
words, the material averment is
complete but unclear. If the material
matter is not averred, the complaint
or information may or may not be
defective.
What is the purpose of a Bill of
Particular in a Criminal Case?
A bill of particular in a criminal
case enables the accused to properly
plead and prepare for trial.

suspended?

In civil cases, its purpose is to

enable a party to properly prepare his
responsive pleading.

Yes,
arraignment
may
be
suspended on the following grounds.

Is a bill of particular a mode of

discovery?

a. 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 thereto.
b. Existence of
a prejudicial
question
c. Pendency of a petition for
review of the resolution of the
prosecutor either at the DOJ or
the Office of the President. The
period of suspension shall not
exceed sixty (60 days) counted
from the filing of the petition
with the reviewing office.

No, a bill of particular is not

mode of discovery.

May arraignment
(Rule 116 Sec. 11)

be

Bill of Particular (Rule 116 Sec. 9)

28

May a bill of particular cure any

defects in the complaint or
information?
No. It is not the office of a bill
of particulars to supply material
allegations necessary to the validity of
a pleading, or to change a cause of
action or defense stated in the
pleading, or to state a cause of action
or defense other than the one stated.
Mode of Discovery in Criminal
Case: Production or Inspection of
Material Evidence in Possession of

the Prosecution. (Rule 116 Sec.

10/ Rule 27, Civil Procedure)
Upon motion of the accused
showing good cause and with notice
to the parties, the court, in order to
prevent surprise, suppression or
alteration, may order the prosecution
to produce and permit the inspection
and copying or photographing of any
written statement given by the
complainant and other witnesses in
any investigation of the offense
conducted by the prosecution or other
investigating officers as well as any
designated documents, papers, books,
accounts,
letters,
photographs,
objects or other tangible things, not
otherwise privileged, which constitute
or contain evidence material to any
matter involved in the case and which
are under the possession or control of
the prosecution, police, or other law
investigating agencies.

*Note: When to file a motion to

quash and effect of not filing a
motion to quash (refer to earlier
discussions)
What is the form of a motion to
quash? (Rule 117, Sec. 2)
-It is in writing.
Who files it? (Rule 117, Sec.2)
It is only the accused or his
counsel who files the motion.
What is the nature of a motion to
quash?
A motion to quash is a class by
itself/sue generis. It is filed only upon
the grounds mentioned in Rule 117,
Sec. 3. There can never be any other
grounds for a motion to quash
criminal informations except those
provided under Rule 117, Sec. 3.

Is it necessary that the accused

allege that he intends to use as
evidence the material evidence in
possession of the prosecution,
police, or other law investigating
agencies?

Grounds for Filing a Motion to

Quash (Rule 117, Sec. 3)

No. There is no rule requiring

that the accused must aver and intend
to use the pieces of evidence he
intends to be produced by the
prosecution. In fact, he may not even
use or copy any of the material
evidence that he moves to be
produced by the prosecution.

1) The facts charged do not

constitute an offense;
2) The court trying the case has no
jurisdiction over the offense; (Lack of
jurisdiction over the offense)
3) The court trying the accused has no
jurisdiction over the person of the
accused; (Lack of jurisdiction over
the person of the accused)
4) The officer
who
filed
the
information had no authority to do
so.
5) The complaint or information does
not conform substantially to the
prescribed form.
6) More than one offense is charged
except when a single punishment for
various offenses is prescribed by law.
7) The criminal action or liability has
been extinguished. (Extinction of
penal action)
8) The complaint or information
contains averments which, if true,
would constitute a legal excuse or
justification, and;
Eg. The information avers that
the accused is insane or a
minor.
9) The accused has been previously
convicted or acquitted of the offense

Are there evidence that the

prosecution, police, or other law
investigating agencies may not
produce despite motion by the
accused and order of the court?
Yes. These are documents,
papers, books, accounts, letters,
photographs, objects, or tangible
things which are privileged. The
prosecution, police, or other law
investigating agency though must
show the nature of such evidence
as privileged.
Note: The other modes of discovery
available in a civil case may be availed
of in a criminal case.

RULE 117 Motion to Quash

29

*Note: These grounds are

exclusive. Memorize these
grounds.

charged, or the case against him was

dismissed or otherwise terminated
without his express consent. (Double
jeopardy)

Sufficiency of Criminal Information: A

criminal information is complete, if by
just looking at it, a judgment of
conviction may be had. It can sustain
a judgment of conviction.

Test for Sufficiency of the

Complaint or Information

Sufficiency of a Complaint/Petition in
a Civil Action/ Special Proceeding: A
complaint is sufficient, if just by itself,
judgment may be rendered in favor of
the plaintiff and granting the prayers
therein.

By
way
of
Jurisprudence:
An
information
is
sufficient
if
its
averments, if hypothetically admitted,
whether the facts alleged would
establish the essential elements of the
offense as defined by law without
considering matters aliunde.

Are there grounds for a motion to

quash that may not be waived?

Note: This is very similar to the test to

determine the sufficiency of a petition
or complaint in a civil action.

Yes. As a rule, failure to file a

motion to quash constitutes a waiver
over its grounds. However, the
following grounds may not be waived:

Only the ultimate, and not

evidentiary facts are considered.
Ultimate facts are those that allege
the cause of action or elements of a
crime. Evidentiary facts are those that
support the allegations of the ultimate
facts.

1) The facts averred do not

constitute an offense.
2) Jurisdiction over the offense
is absent.
3) Extinction
of
Criminal
Liability
4) Double Jeopardy

Eg.
In
a
petition
for
declaration of nullity of marriage
for absence of essential requisites,
the following will be the ultimate
facts:

Is a court mandated to grant a

motion to quash?

a) The parties were married.

b) At the time the parties were
married, either or both of
them do not possess all the
essential
elements
for
marriage ie consent,
contracting capacity such as
legal age, former marriage
that has not been nullified or
annulled, etc.
If applicable, the following
are added:
c) Allegations as to having
children and their custody;
d) Allegations as to acquisition
of property;
The evidentiary facts will be the
following:
a) How the parties met;
b) Making allegations as to
psychological incapacity;
c) Describing their life and
feelings before and after the
marriage;
Simply said:
30

No. A court may always grant

or deny a motion to quash upon its
discretion.
Denial of a Motion to Quash
What is the implication of a
courts denial of a motion to
quash?
The Court is not persuaded by
the accuseds argument.
What is the remedy of an accused
whose motion to quash has been
denied?
The accused whose motion to
quash has been denied must enter his
plea and go to trial.
What if the accused still wants to
question the order of the Court
denying his Motion to Quash?
The accused must resort to a
Rule
65
petition/
Petition
for
Certiorari under Rule 65.
Note: Appeal is not the proper
remedy in case the motion to quash is
denied. There being no appeal, if the

accused still wants to question the

order denying the motion to quash, he
must
resort
to
a
Rule
65
Petition/Petition for Certiorari under
Rule 65. Nonetheless, before such
petition may be acted upon, two
things need to be alleged and shown:
a)
first,
there
is
no
appeal, nor any other plain,
adequate,
and
speedy
remedy provided for by law
and;
b)
second, the grounds
for the petition must be
alleged and shown grave or
abuse of discretion resulting
to
lack
or
excess
of
jurisdiction or lack or excess
of jurisdiction.
Note: Courts are given a wide array
of discretion. It is only grave abuse of
discretion amounting to lack or excess
or jurisdiction that is condemned by
the rules.
By simply alleging and invoking
the grounds and requisites for a
Rule 65 petition, is the Court
mandated
to
entertain
such
petition?
No. Claiming that the court
acted with grave abuse of discretion
amounting to lack or excess of
jurisdiction,
lack
or
excess
of
jurisdiction, or invoking substantial
justice, liberal application of rules are
never
magic
words
that
will
automatically warrant the Courts to
review its findings.
Granting a Motion to Quash
What is the prosecutions remedy
in case a motion to quash is
granted?
The
following
are
the
remedies
available
to
the
prosecution when a motion to
quash has been granted.
1) Amend the complaint or
information if such cures the
defect.
Eg. Duplicity of complaint or
information;
The
facts
charged do not constitute an
offense.
2) Refile
the
complaint
or
information.
31

Eg. Lack of jurisdiction over

the offense.
3) Appeal
from
the
order
granting
the
motion
to
quash. This is applicable
only if the motion to quash
is sustained on the grounds
of extinction of criminal
liability and double jeopardy.
Sustaining
a
motion
to
quash over the said grounds
constitutes a final order or
an adjudication by merits,
which is the proper subject
of an appeal. Appeal is
available only for a final
order or an adjudication by
merits,
and
not
for
interlocutory orders.
Void and Defective Information
A void information may be
assailed anytime while a defective
information may only be assailed
before
arraignment.
A
void
information does not confer any
jurisdiction to the courts over the
offense while the defects in a
defective information may be
waived and the courts may still
acquire jurisdiction over the offense.
An order sustaining a motion to
quash not a bar to another
prosecution.(sec. 6)
Exception: When the motion to
quash was based on the
grounds
of
extinction
of
criminal liability or double
jeopardy
because
such
is
considered an adjudication by
merits.
Rule on Supervening Facts (Rule
117, Sec. 7)
Sec. 7, par 1=General rule on
double jeopardy also described as
Res
judicata
in
prison
grey(Trinidad
v.
Ombudsman,
Dec. 4, 2007)
Sec 7, par. 2 is otherwise known as
the Supervening Fact Doctrine
The conviction of the accused
shall not be a bar to another
prosecution for an offense which
necessarily includes the offense
charged in the former complaint or
information under any of the following
instances.

a) The graver offense developed

due to supervening facts arising
from the same act or omission
constituting the former charge.
b) The facts constituting the
graver charge became known
or were discovered only after a
plea was entered in the former
complaint or information; or
c) The plea of guilty to a lesser
offense was made without the
consent of the prosecutor and
of the offended party.
Note: this is an exception to the
general rule on Double Jeopardy.
Note: Where after the first
prosecution, a new fact supervenes
for
which
the
accused
is
responsible, which changes the
character of the offense
and,
together with the facts existing
at
the
time,
constitutes a new and distinct
offense, the accused cannot be
said to be in second jeopardy if
indicted for the second offense.
A new fact supervenes which,
would change the nature of the
crime.
Origin of the Rule
(P vs. Tarok, 73 Phil. 260; P vs.
Villasis, 46 O.G. 268; Melo vs. People,
85 Phil. 766; People vs. Buling, 107
Phil. 712; People vs. Adil, 76 SCRA
462; People vs. Tac-an, 182 SCRA 601;
and People vs. City Court of Manila,
121 SCRA 637)
This present rule was brought
about as a result of jurisprudence.
Prior to this rule, there is this
case where a former charge of grave
physical injuries was not allowed to be
amended to Homicide. In this case,
the charge for Grave Physical Injuries
was filed while the victim is still in the
hospital. The accused was arraigned,
and he entered a plea of not guilty.
Subsequently, the victim died of his
injuries.
When
the
prosecutor
expressed his desire to upgrade the
former charge, the Court ruled that it
may not be allowed as Double
Jeopardy has set in. In another case,
an accused was charged with serious
physical injuries, for which he was
convicted. When the victim, who
32

happens to be his own wife, died from

meningitis
contracted
from
her
injuries, the Court did not allow the
second charge of parricide to prosper
(People v Taroc, 73 Phil 260).
These doctrines were later
abandoned, in one case, the accused
was initially charged with frustrated
homicide. After his arraignment, the
victim died, and the information was
amended into one for consummated
homicide. The Court abandoned its
former rulings and allowed the second
charge to prosper (Melo v People, 85
Phil 766).
In another similar case, an
accused was charged for Grave
Physical Injuries. His arraignment
was scheduled in the afternoon. On
the morning of the day of his
arraignment, the victim died and the
accused was informed of it. The
accused kept silent and never
informed the prosecutor or the court.
The prosecutor and court were
unaware that the victim died.
Arraignment and plea proceeded as
scheduled. Upon learning that the
victim died, the prosecutor expressed
his desire to upgrade the offense from
Grave Physical Injuries to Homicide.
This time, the Court allowed it. It
pointed
out
that
the
accused
knowingly pleaded to the lesser
offense. (People v Espino, 69 Phil 471)
This was reiterated in another
case (People v City Court of Manila
121 SCRA 637 compare this with the
Ivler Doctrine). The accused was
charged with Reckless Imprudence
Resulting In Serious Physical Injuries
and the accused pleaded to such.
However, the victim died on the day
that the first information was filed.
The information was amended into a
charge for Reckless Imprudence
Resulting In Homicide. On the issue
whether double jeopardy has set in
preventing the amended charge to
prosper, the Court ruled that there
will be double jeopardy if the
accused is unaware that the victim
is dead while entering the plea.
But if the accused is aware that
the victim died and still he
entered a guilty plea, there will be
no double jeopardy.

People v City Court of Manila, 121

SCRA 637
The victim died on the day that
the first information for Reckless
Imprudence Resulting in Serious
Physical Injuries was filed. 2 days
later, the accused was arraigned,
pleaded guilty, and was sentenced.
The prosecutor though, received
information that the victim died. He
moved to hold in abeyance the
arraignment and proceedings in the
first charge to allow amendment of
the information. The court did not
allow
it.
When
the
amended
information was filed, the Court
dismissed
it.
It
made
this
pronouncement, the accused was
arraigned, pleaded guilty and
sentenced
accordingly.
Thus,
jeopardy had attached and no new
fact
supervened
after
the
arraignment and conviction of the
accused.

Provisional Dismissal (Rule 117

Sec. 8)
A provisional dismissal is one
where the dismissal is merely
temporary.
What are the requisites of a valid
provisional dismissal?
A case shall not be provisionally
dismissed except with the express
consent of the accused and with
notice to the offended party.
Why is the express consent of the
accused needed? (People v Lacson
GR No. 149453, April 1, 2003)
The raison d etre for the
requirement of the express consent of
the accused to a provisional dismissal
of a criminal case is to bar him from
subsequently asserting that the
revival of the criminal case will
place him in double jeopardy for
the same offense or for an offense
necessary included therein.
May the Offended Party oppose
the granting of a Provisional
Dismissal?
No.
In
fact,
provisional
dismissal is favorable to the offended
33

party especially for purposes of

locating
witnesses
for
the
prosecution. Provisional Dismissal is
designed to counter the possibility of
an accused invoking his Constitutional
Right to Speedy Trial.
May
a
provisional
become permanent?

dismissal

Yes, provided the case has not

been revived and after the lapse of
one or two years from the issuance of
the
order
granting
provisional
dismissal, as the case may be. (This is
known as the Time Bar rule)
Penalty of
Offense
Charged

the Number of Years

before provisional
dismissal
becomes final
Imprisonment of 1 year
not more than 6
years
Fine only
1 year
Imprisonment of 2 years
more than 6 years
Distinctions Between Motion to
Quash and Provisional Dismissal

Form
Who Files

When
File

Motion
to
Quash
Should be in
writing
Filed by the
Accused

to Before
Entering
Plea
Grounds
Exclusivefor Filing
only
those
found
in
Rule
117,
Sec. 3
Effect
Bars
Continuation
of
Proceedings

Provisional
Dismissal
May be in
any form
Either filed
by
the
accused,
prosecution
, or both.
Anytime
Any ground
will do

Shortens
the period
of
Prescriptio
n

*Note: Another exceptional case of

People v. Lacson, GR No. 149453,
April 1, 2003 (When the Ivler case
was penned in 2010, reviewers and
authors all claimed that it will be
asked sooner or later. It has been

asked in the 2014 Bar. The Lacson

case is considered as a potential bar
question as well ever since it was
penned.
In Lacson case, Lacson filed a
motion to determine probable cause
in the arrest warrants and information
filed against him in connection with
the Kuratong Baleleng Shoot outs.
The prosecution moved for provisional
dismissal of the cases. No notices of
the court orders were given to the
victims heirs.
(Patalastas- Allegedly, the heirs were
paid blood money amounting to 400
thousand pesos each, a huge sum at
the time the shootout took place.
Hehe)
Doctrines in Lacson:
- A motion to determine
probable cause filed by the accused is
not equivalent to his express consent.
- The State may revive a
criminal case beyond the one-year or
two-year periods (of the time bar rule)
provided that there is a justifiable
necessity for the delay.
- Lacson construed the phrase
after the issuance of the order of
provisional dismissal to mean as
after service of the order of dismissal
on the public prosecutor who has
control of the prosecution without the
criminal case being revived.
Note: In another case involving
Lacson, (Secretary v Lacson, 1999) it
was held that Criminal Laws may not
be given retroactive effect even if they
favor the accused who is not a
habitual delinquent, and even if the
law does not prohibit retroactive
effect if doing so will result into
grave injustice.
(Some authors and reviewers
actually say that Lacson is one single
person who can change the legal
landscape of criminal laws.)
Motion to Quash Warrant of Arrest
Note: Refer to earlier discussions
on the finding of probable cause to
issue warrant of arrest and the
remedies for an accused who

34

claims to be illegally arrested or

detained.
Note: There is no rule requiring
that the accused must surrender,
be arrested or be placed under the
custody of law before his motion
to quash the warrant of arrest may
be acted upon.
But in a petition for bail, the
accused needs to surrender before
the court, be arrested, or be
placed under the custody of law
before his petition will be acted
upon.
2014 Bar Question: A was charged
before the Sandiganbayan with a
crime of plunder, a non-bailable
offense, where the court had already
issued a warrant for his arrest.
Without A being arrested, his lawyer
filed a Motion to Quash Arrest
Warrant and to Fix Bail, arguing that
the allegations in the information did
not charge the crime of plunder but a
crime of malversation, a bailable
offense. The court denied the motion
on the ground that it had not yet
acquired jurisdiction over the person
of the accused and that the accused
should be under the custody of the
court since the crime charged is nonbailable.
The
accuseds
lawyer
counter-argued that the court can rule
on the matter even if the accused was
at large because it had jurisdiction
over the case. According to the said
lawyer, there was no need for the
accused to be under the custody of
the court because what was filed was
a Motion to Quash Warrant of Arrest
and to Fix Bail, not a Petition for Bail.
A) If you are the Sandiganbayan,
how will you rule on the
motion?
B) If the Sandiganbayan denies
the
motion,
what
judicial
remedy should the accused
undertake?
Answers:
A)
As the Sandiganbayan, I
will entertain the motion, denying or
granting it as the case maybe
depending on whether the ground
sought for is meritorious. I may not
deny it solely on the basis the court
has yet to acquire jurisdiction over
the person of the accused. There is no

rule requiring that the accused must

surrender, be arrested, or be placed
under the custody of law before his
motion to quash may be acted upon.
B)
The accused should
prepare for trial or resort to a petition
for Certiorari under Rule 65 of the
Revised Rules of Court. The remedy of
appeal is not available in an order
denying a motion to quash a warrant
of arrest. Without appeal, or any other
plain, adequate, and speedy remedy
available, a petition under Rule 65 is
appropriate but only upon the
grounds of grave abuse of discretion
resulting to lack or excess of
jurisdiction, or lack or excess of
jurisdiction.

Rule 118: Pre-Trial

What is the nature of a pre-trial?
(Rule 118, Sec. 1)
-A pre-trial, whether in a criminal or
civil case is always mandatory. It
may never be dispensed with.
-In criminal cases, it is mandatory in
cases
cognizable
by
the
Sandiganbayan, Regional Trial Court,
Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court
and Municipal Circuit Trial Court.
Purpose of Pre-trial (Rule 118,
Sec. 1)
Pre-trial considers the following
(6):
35

a) Plea bargaining
b) Stipulation of Facts
c) Marking for Identification of
evidence of the parties
d) Waiver
of
objections
to
admissibility of evidence
e) Modification of the order of trial
if the accused admits the
charge but interposes a lawful
defense; and
f) Such matters as will promote a
fair and expeditious trial of the
criminal and civil aspects of the
case.
Note:
= Plea bargaining is proper in
Pre-trial.
=Facts stipulated upon are
among those that need not be proved
during trial.
=Evidence
that
were
not
presented and marked during the pretrial, and subsequently are not
included in the pre-trial order, may be
objected to when presented and
offered during trial.
*Waiving objections over the
admissibility of the opposing partys
evidence is probably the most useless
purpose of pre-trial. Neither the
prosecutor nor defense, in his right
mind, would waive his objections over
the opposing partys evidence.
When is pre-trial held?
Pre-trial shall be held after
arraignment and within thirty (30)
days from the date the court acquires
jurisdiction over the person of the
accused, unless a shorter period is
provided for in special laws or circulars
of the Supreme Court.
Note: A pre-trial needs a Notice of
Pre-trial.
Duty of the Judge before pre-trial
conference:
He must study the allegations in
the information, the statements in the
affidavits of witnesses and other
documents forming part of the
preliminary investigation. (A.M. No. 031-09-SC, 7-13-04, effective 8-16-04)
What should the Court do if plea
bargaining is agreed upon?
The court must:
36

a) issue an order to that effect;

b) proceed to receive evidence
on the civil aspect; and
c) render
and
promulgate
judgment
of
conviction
including the civil liability or
damages duly established
by the evidence. (A.M. No.
03-1-09-SC,
7-13-04,
effective 8-16-04)
NOTE: If plea bargaining fails,
the judge shall adopt the
minutes of the preliminary
conference (before the clerk of
court) as part of the pre-trial
proceedings
Note: AM No. 12-8-8-SC or Judicial
Affidavit Rule (JAR)
To speed up court proceedings,
the Supreme Court through its rule
making power issued the Judicial
Affidavit Rule.
Judicial Affidavits take the place
of direct testimonies of the parties to a
case and their witnesses. Instead of a
party or a witness going to court and
being asked questions by the counsel
for
his
testimony,
their
direct
testimonies are now being taken
outside of the court through their
judicial affidavits.
Contents of Judicial Affidavits:
Section
3.
Contents
of
Judicial Affidavit- A judicial affidavit
shall be prepared in the language
known to the witness and, if not in
English or Filipino, accompanied by a
translation in English or Filipino, and
shall contain the following:
(a)
The name, age, residence
or business address, and occupation of
the witness;
(b)
The name and address of
the lawyer who conducts or supervises
the examination of the witness and
the place where the examination is
being held;
(c)
A statement that the
witness is answering the questions
asked of him, fully conscious that he
does so under oath, and that he may
face
criminal
liability
for
false
testimony or perjury;
(d)
Questions asked of the
witness
and
his
corresponding

answers,
that:

consecutively

numbered,

(1) Show
the
circumstances under
which
the
witness
acquired
the
facts
upon
which
he
testifies;
(2) Elicit from him those
facts
which
are
relevant to the issues
that
the
case
presents; and
(3) Identify the attached
documentary
and
object evidence and
establish
their
authenticity
in
accordance with the
Rules Of Court;
(e)
The signature of the
witness over his printed name; and
(f)
A jurat with the signature
of the notary public who administers
the oath or an officer who is
authorized by law to administer the
same.
Attestation Clause:
Section 4. Sworn Attestation
of the Lawyer.
(a)
The judicial affidavit shall
contain an attestation at the end,
executed
by
the
lawyer
who
conducted
or
supervised
the
examination of the witness, to the
effect that:
(1) He faithfully recorded
or
caused
to
be
recorded
the
questions he asked
and the corresponding
answers
that
the
witness gave; and
(2) Neither he nor any
other
person
then
present or assisting
him
coached
the
witness regarding the
latters answer;
(b)
A false attestation shall
subject the lawyer mentioned to
disciplinary
action,
including
disbarment.

well as the time for its submission

are all provided for in Sec. 9 of
the Rule or AM No. 12-8-8-SC.
Sec. 9. Application of the
Rule to all criminal actions. (a)
This rule shall apply to all criminal
actions:
(1)
Where the maximum of
the imposable penalty does not
exceed six years;
(2)
Where
the
accused
agrees to the use of judicial affidavit
irrespective of the penalty involved; or
(3)
With respect to the civil
aspect of the actions, whatever the
penalties involved are.
(b) The prosecution shall submit
the judicial affidavits of its witnesses
not later than five (5) days before pretrial, serving copies of the same upon
the accused. The complainant or the
public prosecutor shall attach to the
affidavits such documentary or object
evidence as he may have, marking
them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary,
or object evidence shall be admitted at
the trial.
(b) If the accused desires to be
heard on his defense after receipt of
the
judicial
affidavits
of
the
prosecution, he shall have the option
to submit his judicial affidavits as well
as those of his witnesses to the court
within ten (10) days from receipt of
such affidavits and serve a copy of
each on the public and private
prosecutor, including his documentary
and
object
evidence
previously
marked as Exhibits 1, 2, 3, and so on.
These affidavits shall serve as the
direct testimonies of the accused and
his witnesses when they appear before
the court to testify.
What is the effect of noncompliance
with
the
Judicial
Affidavit Rule?
This is answered by Section
10 of the Rule.

criminal

Sec. 10. Effect of Noncompliance

with
the
Judicial
Affidavit Rule.

In criminal cases the application

of the Judicial Affidavit Rule as

(a)
A party who fails to
submit the required judicial affidavits
and exhibits on time shall be deemed

Application of
proceedings:

37

JAR

in

to have waived their submission. The

court, may, however, allow only once
the late submission of the same
provided, the delay is for a valid
reason, would not unduly prejudice the
opposing party, and the defaulting
party pays a find of not less than P
1,000.00 nor more than P 5,000.00, at
the discretion of the court.
(b)
The
court
shall
not
consider the affidavit of any witness
who fails to appear at the scheduled
hearing of the case as required.
Counsel who fails to appear without
valid cause despite due notice shall be
deemed to have waived his clients
right to confront by cross-examination
the witnesses there present.
The court shall not admit as evidence
judicial affidavits that do not conform
to the content requirements of Section
3 and attestation requirement of
Section 4 above. The court, may,
however allow only once the compliant
replacement affidavits before the
hearing or trial provided the delay is
for a valid reason and would not
unduly prejudice the opposing party
and provided further, that public or
private counsel responsible for their
preparation and submission pays a
fine of not less than P 1,000.00 nor
more than P 5,000.00, at the
discretion of the court.
Pre-trial Agreement (Rule 118,
Sec. 2)
All agreements or admissions
made or entered during pre-trial
conference shall be reduced in writing
and signed by the accused and
counsel, otherwise, they cannot be
used against the accused. The
agreements covering the matters
referred to in section 1 of this Rule
shall be approved by the court.
What are the requisites of a valid
pre-trial agreement?
The following are the requisites
of a valid pre-trial agreement.
a) It must be in writing.
b) It must be signed by
accused and counsel.

the

Note: Absent any of the above

requisites, any admission made by the
accused during pre-trial, may not be
used against him.
38

General Rule: Allegations must be

proven.
Exception/ (What need not be
proven):
1) Judicial admission entered at
the pre-trial signed by the
accused and counsel.
2) Matters that can be taken
judicial notice of.
*Judicial Notice connotes
that a matter is considered
as fact without any proof.
Judicial
notice
may
be
mandatory or discretionary
but these are better taken in
the subject of evidence.
Eg of Judicial Notice.

Witness (W): I saw the

accused at 10 am in the
morning.
Prosecutor (P): Is the sun up
when you saw him?

Instead of asking whether

the sun is up or is it
daytime during 10am, the
court may simply take
judicial notice of it.

W: Im a student at UP.
P: Is UP a market?
*Again, instead of adducing
evidence that UP is school or
university, the court may
simply take judicial notice of
it.
Doctrine of Processual
Presumption/ Presumed Identity
Approach
May courts take judicial notice of
foreign laws?
No. Foreign laws are never the
subject of judicial notice. They must
be properly alleged in a pleading and
duly proved. In case a foreign law is
not alleged or it is not duly proven, it
is presumed to be identical with the
local law.
How are foreign
(Rule 132 Sec. 24)

laws

proven?

Foreign laws may be evidenced

by an official publication thereof or by
a copy attested by the officer having
the legal custody of the record, or by
his deputy, and accompanied, if the
record is not kept in the Philippines,
with a certificate that such officer has
the custody. If the office in which the
record is kept is in a foreign country,
the certificate may be made by a
secretary of the embassy or legation,
consul-general, consul, vice-consul, or
consular agent or by any officer in the
foreign service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his office.
Alternative Dispute Resolution
(ADR)
What are the modes of alternative
dispute resolution?
The following are the modes of
alternative dispute resolution.
a)
b)
c)
d)
e)
f)

Mediation
Conciliation
Mini trial
Early Neutral Evaluation
Arbitration
Proceedings
before
the
Philippine Mediation Center
g) Any combination of the
foregoing
Proceedings before the Philippine
Mediation Center (PMC) / Court
Annexed Mediation (CAM)
Before
pre-trial
and
trial,
criminal cases that may be the subject
of mediation are brought before the
PMC for CAM.
The
settlement.

purpose

of

CAM

is

Proceedings before the CAM are

unrecorded and confidential. It lasts
for a 30-day period which may be
extended for another 30-day period. If
no settlement will be arrived at, the
case is brought back to the Courts for
Judicial Dispute Resolution.

a)
b)
c)
d)
e)
f)
1.

Estafa
Civil aspect of quasi-offenses
Violation of BP 22
Theft
Malicious Mischief
Slander or Libel
Those covered by the Rule
on
Summary
Procedure
(EXCEPT: violations of traffic
rules, violations of municipal
or city ordinances because
compromise is prohibited)
2. Cases cognizable by the
Lupong
Tagapamayapa
under
the
Katarungang
Pambarangay Law.
g) Quasi-offenses except those
that
result
to
physical
injuries or death
Additionally, the following are
also covered:
a) Those covered by the Rules
on
Summary
Procedure
(except
those
where
compromise is prohibited), to
wit:
1. offenses whose penalty
do not exceed 6 months
or a fine not exceeding
1,000;
2. Violation of Rental Law;
3. NOTE: while violations of
traffic rules & regulations,
and municipal or city
ordinances
are covered
by the Summary Rules,
compromise
is
not
allowed
for
these
offenses.
b) Offenses covered by the
Katarungang Pambarangay
Law (offenses punishable by
not more than 1 year or fine
of not more than 5,000)
Pre-trial in Civil Cases Compared
to Pre-trial in Criminal Cases
Civil Case
How
initiated:

What crimes may be the subject of

mediation(PMC)/JDR?
1. The civil aspect of the
following crimes may be the
subject of mediation.
39

When
held:

Criminal
Case
The court
moto
proprio

The Court
moto
proprio or
upon an exparte
motion by
the plaintiff
After
all After
pleadings
arraignme
have been nt
and

served
filed.

Purpose:

Impositio
n of
Sanctions
for
Failure to
Appear
during
Pre-trial:

40

and within
thirty (30)
days from
the
date
the
court
acquires
jurisdiction
over
the
person of
the
accused.
Possibility of Plea
Amicable
bargaining,
Settlement
stipulation
or
of
facts,
submission
marking of
to
the evidence,
alternative
waiver
of
modes
of objections
dispute
to
resolution
admissibilit
y
of
evidence,
modificatio
n of the
order
of
trial, other
matters
that
will
promote a
fair
and
expeditious
trial
The
If
the
nonappeara counsel for
nce of the the
plaintiff
accused or
warrants the the
dismissal of prosecutor
his
action. does
not
The
appear
nonappeara during prence by the trial
defendant
conference
warrants the and
does
presentation not
offer
of evidence an
by
the acceptable
plaintiff, ex- excuse for
parte.
his lack of
(It is the cooperatio
party who is n,
the
sanctioned) court may
impose
proper
sanctions
or
penalties.
(It is the
accuseds
counsel or

Necessity
of Pretrial Brief

The parties
are required
to file and
serve their
respective
pre-trial
briefs.

Record
During
Pre-trial.

There is no
such
rule
requiring
that
admissions
or
agreements
be in writing
and signed
by
the
parties
otherwise
they cannot
be
used
against
them.

prosecutor
who
is
sanctioned
)
Pre-trial
briefs are
not
mandated
by
the
rules. The
rules
are
silent as to
its
necessity.
There
is
strict
requiremen
t that all
agreement
s
and
admissions
made
by
the
accused be
in writing
and signed
by him and
his
counsel,
otherwise,
they
cannot be
used
against
him.

Over-all Diagram of Mediation and

Court Proceedings

After a plea of not guilty is

entered, the accused shall have at
least fifteen (15) days to prepare for
trial. The trial shall commence
within thirty (30) days from
receipt of the pre-trial order.
What is the remedy of the
accused that is not brought to
trial within the prescribed period?
(Rule 119 Sec 9)
If the accused is not brought to
trial within the time limit required by
section 1 (g), Rule 116 and section 1,
as extended by section 6 of this Rule,
the information may be dismissed
on motion of the accused on the
ground of denial of his right to
speedy trial. The accused shall have
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
section 3 of this Rule. The dismissal
shall be subject to the rules on double
jeopardy.

Rule 119: Trial

Trial Must Be Continuous (Rule
119 Sec. 2)
Trial once commenced, shall
continue from day to day as far as
practicable until terminated. It may be
postponed for a reasonable period of
time for good cause.
The
court
shall,
after
consultation with the prosecutor and
defense counsel, set the case for
continuous trial on a weekly or other
short-term trial calendar at the earliest
possible time so as to ensure speedy
trial. In no case shall the entire trial
period exceed one hundred eighty
(180) days from the first day of trial,
except as otherwise authorized by the
Supreme Court.
The time limitations provided
under this section and the preceding
section shall not apply where special
laws or circulars of the Supreme Court
provide for a shorter period of trial.
When is a case set for trial? (Rule
119 Sec. 1)

41

Failure of the accused to move

for dismissal prior to trial shall
constitute a waiver of the right to
dismiss under this section.
*Note: Reasonable delays are allowed
by the Constitution and the Rules.
More specifically, Rule 119 Sec. 3
enumerates these delays. This list
though is not exclusive.
What types of delays are excluded
from computing the period for
commencement of the trial?
The following periods of delay
shall be excluded in computing the
time
within
which
trial
must
commence. Any period of delay
resulting from other proceedings
concerning the accused, including but
not limited to the following:
1) Delay resulting from an
examination of the physical
and mental condition of the
accused.
2) Delay
resulting
from
proceedings with respect to
other
criminal
charges
against the accused.
1) Delay
resulting
from
extraordinary
remedies
against interlocutory orders.

2) Delay resulting from pre-trial

proceedings; provided that
the delay does not exceed
thirty (30) days.
3) Delay resulting from orders
of inhibition, or proceedings
relating to change of venue
of cases or transfer from
other courts.
4) Delay
resulting
from
a
finding of the existence of a
prejudicial question;
5) Delay
reasonably
attributable to any period,
not to exceed thirty (30)
days, during which any
proceeding concerning the
accused is actually under
advisement.
6) Any period of delay resulting
from
the
absence
or
unavailability of an essential
witness.
For purposes of this subparagraph, an
essential witness shall be considered
absent when his whereabouts are
unknown or his whereabouts cannot
be determined by due diligence. He
shall be considered unavailable
whenever his whereabouts are known
but his presence for trial cannot be
obtained by due diligence.
9)
Any period of delay
resulting
from
the
mental
incompetence
or
physical
inability of the accused to stand
trial.
10)
If the information is
dismissed upon motion of the
prosecution and thereafter a
charge is filed against the
accused for the same offense,
any period of delay from the
date the charge was dismissed
to the date the time limitation
would commence to run as to
the subsequent charge had
there been no previous charge.
11)
A reasonable period of
delay when the accused is
joined for trial with a co-accused
over whom the court has not
acquired jurisdiction, or, as to
whom the time for trial has not
run and no motion for separate
trial has been granted.
12)
Any period of delay
resulting from a continuance
granted by any court motu
42

proprio, or on motion of either

the accused or his counsel, or
the prosecution, if the court
granted the continuance on the
basis of its findings set forth in
the order that the ends of
justice served by taking such
action
outweigh
the
best
interest of the public and the
accused in a speedy trial.
Factors in Granting
Postponements or Continuance
(Rule 119 Sec. 4)
Note: Granting a postponement is
discretionary upon the court.
What are the factors to be
considered
in
granting
continuance or a postponement?
The
Court
considers
the
following in granting continuance or
postponement.
a) Whether or not the failure to
grant a continuance in the
proceeding would likely make
a
continuation
of
such
proceeding impossible or
result in a miscarriage of
justice; and
b) Whether or not the case taken
as a whole is so novel, unusual
and complex, due to the
number of accused or the
nature of the prosecution, or
that it is unreasonable to expect
adequate preparation within the
periods of time established
therein.
Eg. Ampatuan trials consider the
sheer number of all the accused,
evidence against them, availability of
witnesses, etc.
What are not valid grounds for
continuance?
No continuance shall be granted
because of congestion of the courts
calendar or lack of diligent preparation
or failure to obtain available witnesses
on the part of the prosecutor.
Order of Trial (Rule 119 Sec. 11)
Trial shall
following order:

proceed

in

the

a) The prosecution shall present

evidence to prove the charge

b)

c)

d)

e)

and, in the proper case, the civil

liability.
The accused may present
evidence to prove his defense
and damages, if any, arising
from
the
issuance
of
a
provisional remedy in the case.
The
prosecution
and
the
defense may in that order,
present
rebuttal
and
surrebuttal evidence unless the
court, in furtherance of justice,
permits
them
to
present
additional
evidence
bearing
upon the main issue.
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.
When the accused admits the
act or omission charged in the
complaint or information but
interposes a lawful defense, the
order of trial may be modified.
Diagram

complaint
or
information
but
interposes a lawful defense, the order
of trial may be modified.
In such case, (In a strict
sense) the burden of evidence (not
the burden of proof) will switch to
the accused.
*The distinctions between burden of
proof and burden of evidence are
better taken in evidence.
Eg. A killed B.
In the normal order of trial, the
prosecution needs to prove that:
1) B was killed.
2) It was A, who killed B.
3) The killing was unlawful.
Now, if A admits the killing, but
interposes a lawful defense, the
prosecution does not need to prove
the list above. It will now be A who
needs to prove that the killing is not
unlawful.
Trial in Absentia
What are the requisites of a valid
trial in absentia?
The following are the requisites
of a valid trial in absentia.
a. The
accused
has
been
validly arraigned.
b. The accused has been duly
notified of the trial or
hearings.
c. The absence of the accused
or his failure to appear is
unjustified.
Discharge of an Accused as
a State Witness (Rule 119 Sec. 17,
18 and 19)

Reverse Order of Trial.

act
43

When the accused admits the

or omission charged in the

Q: There are several accused

jointly tried for an offense arising
from
a
single
complaint
or
information.
The
prosecution
cannot
locate
witnesses
and
cannot obtain pieces of evidence
to secure a conviction. What
remedy
may
the
prosecution
resort to if it wants to come up
with
evidence
to
secure
conviction?
The prosecution may move/file
a motion for the discharge of one or

more accused as state witness or

witnesses.
Procedure for the Discharge of an
Accused as a State Witness:
1) Two or more persons are jointly
charged with the same offense
in the complaint or information.
2) Before the prosecution rests its
case, it must file a motion for
the discharge of one or more
accused to be a state witness or
witnesses.
3) The motion for discharge must
be with the consent of the
accused.
4) There must be a hearing on the
motion. It is in this hearing that
the prosecution must prove the
requisites for one to be a state
witness. At the said hearing,
the prosecution must present
evidence along with the sworn
statement of the accused whose
discharge as a state witness is
sought. The sworn statement of
the accused must show how the
crime was committed and his
and
his
co-accuseds
participation.
5) The 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 committed, except
the testimony of the said
accused.
c. The testimony of the said
accused can be substantially
corroborated in its material
points.
d. Said accused has not at
anytime been convicted of
any offense involving moral
turpitude.
6) After the court is satisfied of the
above requisites, it issues an
order granting the motion for
discharge of the accused to be a
state witness.
Q: Who may file the motion for the
discharge of an accused to be a
state witness?
It is the prosecution who files
the motion.
44

Q: What is the nature of a court

order granting the motion of an
accused asking for his discharge
to be a state witness?
A court order granting the
motion of an accused asking for his
discharge to be a state witness is
void.
Q: When must the motion be filed?
The prosecution must file the
motion before resting its case.
Effect
of
Witness

Becoming

State

Note: An order granting the discharge

of an accused to be a state witness
operates as an acquittal for the
accused. Thus the accused cannot be
re-included in the same complaint or
information.
But if the accused fails or
refuses to testify against his coaccused in accordance with his sworn
statement constituting the basis for
his discharge, he may be prosecuted
again/re-included in the same offense.
Admissibility
of
the
Sworn
Statement by the Accused whose
Discharge as a State Witness is
being sought
Note: Evidence adduced in support of
the discharge shall automatically form
part of the trial. If the court denies the
motion for discharge of the accused as
state witness, his sworn statement
shall be inadmissible in evidence.
Mistake made in
proper offense.

charging

the

When it becomes manifest at

any time before judgment that a
mistake has been made in charging
the proper offense and the accused
cannot be convicted of the offense
charged
or
any
other
offense
necessarily included therein, the
accused shall not be discharged if
there appears good cause to detain
him. In such case, the court shall
commit the accused to answer for the
proper offense and dismiss the original
case upon the filing of the proper
information.
Note: In case a mistake has been
made in charging the proper offense

and there can be no conviction on any

offense necessarily included in the
offense charged, the accused that has
been discharged as a state witness
may be prosecuted if the proper
offense has been filed.

No. There is no rule requiring

that the accused be the least guilty
before he may be discharged as a
state witness. All that the rules require
is that the said accused does not
appear to be the most guilty.

Q: The court issued an order

granting the prosecutors motion
for the discharge of one of the
accused, A, to be a state witness.
The prosecution though no longer
presented A, as it felt that it may
secure a conviction even without
his testimony. Even if A was
available to testify, he was never
called to do it. The prosecution
then moved to reinclude As name
among
those
currently
prosecuted. May A be prosecuted?

Note: Being a State Witness is a form

of immunity statute. Some other forms
of immunity statues are the following.

Suggested
Answer:
Not
anymore. The accused will not be
reincluded in the same complaint
or information since it was not his
fault that he could not testify.
Q: What are the requisites for one
to be discharged as a state
witness?
In order for one to be a state
witness, the court must be satisfied of
the following:
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 committed, except
the
testimony
of
the
accused.
c) The
testimony
of
the
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.
Q: Is it necessary that the
accused, whose discharge as a
state witness is being sought, be
the least guilty in the offense
charged?
45

a) Republic Act No. 6700 or the

Ombudsman Law Authority is
granted to the Ombudsman to
grant
immunity
in
cases
involving Government Officials
and employees
b) Republic Act No. 9165 or the
Dangerous
Drugs
Act

Authority is given to the DOJ to

grant immunity in drug cases
c) Executive Order No. 14
Authority is given to the PCGG
to grant immunity in cases
involving ill-gotten wealth
d) Presidential
Decree
749

Immunity may be given to

informants for certain crimes
punished by the RPC, NIRC (tax
code), and Tariff and Customs
Code.
e) Republic Act No. 6981 or the
Witness Protection Program.
Effect of Admission into
Witness Protection Program

the

Admission into the Program

shall entitle such witness to immunity
from criminal prosecution for the
offense or offenses in which his
testimony will be given or used and all
the rights and benefits provided.
Witness Protection Program under
RA 6981 distinguished from Rule
119 Sec. 17
Witness
Protection
Program
(WPP)
Offense
Charged:

Discharge
of
an
Accused
to
be
State
Witness
The offense Applies to
charged
all offenses
must be a whether
grave
light, less
felony
grave,
or
punishable grave.
by the RPC
or special
laws.

Necessity
of
the
Witness
being an
Accused:

Any
witness,
whether a
plain
witness or
the
accused
himself
may
be
qualified
under the
WPP.
Necessity The
of
being witness
charged
need
not
in court:
be charged
in court in
order
to
qualify
in
WPP.
Necessity The
of
the witness
witness
and
his
receiving
relatives by
threats:
affinity or
consanguin
ity
within
the second
degree
is
being
threatened
with bodily
harm,
in
order
for
the witness
to
qualify
under WPP.
Authority
The
granting
immunity is
the
granted by
immunity: the DOJ.
Witness
In order to
being
a qualify
law
under the
enforcer:
WPP,
the
witness
must
not
be
a
member of
a
law
enforceme
nt agency.
Benefits
The
Received: witness
receives
certain
benefits
such
as
relocation
and change
of identity.
46

The
witness is
one
or
more
accused
testifying
against his
coaccused.

The
witness is
necessarily
charged in
court.

No
such
requiremen
t exists.

benefits.
Dismissal due to Insufficiency of
Evidence (Rule 119 Sec. 23)
After the prosecution rests its
case, the court may dismiss the action
on the ground of insufficiency of
evidence (1) on its own initiative after
giving the prosecution a chance to be
heard or (2) upon demurrer to
evidence filed by the accused with or
without leave of court.
Note: If the court dismisses the
criminal action on its own, it must
afford the prosecution a chance to be
heard.
What
then
constitutes
opportunity to be heard for the
prosecution?
Before the court dismisses a
criminal action on its own after the
prosecution rests its case, the court
must issue an order directing the
prosecution to explain why the
case must not be dismissed on
ground
of
insufficiency
of
evidence.
Note: After the prosecution has
presented its evidence in chief and
rests, the court has two options (1)
dismiss the case on its own or upon
demurer to evidence filed by the
accused or (2) allow the case to
proceed.

The
immunity is
granted by
the courts.
No
such
requiremen
t exists.

The
accused
who
has
been
discharged
as a state
witness
receives no
such

Note: After the prosecution has

presented its evidence in chief and
rests, the accused has two options
(1) File a demurrer to evidence or (2)
present its evidence.

order within which, to file his

demurrer to evidence.
6. The court either issues an order
granting
or
denying
the
demurrer to evidence.
Granting
a
demurrer
to
evidence operates as an acquittal of
the accused.
Demurrer to Evidence.
What is the nature of a demurrer
to evidence?
A demurrer to evidence has the
nature of a motion to dismiss.
When is a demurrer to evidence
filed?
A demurrer to evidence is filed
after the prosecution rests.
What is the ground of a demurrer
to evidence?
In a criminal case, the ground
for filing a demurrer to evidence is
insufficiency of evidence. In a civil
case, the ground for filing a demurrer
to evidence is lack of cause of action.
*Note: even if the grounds for filing a
demurrer to evidence in a civil or
criminal case are worded differently,
they actually mean the same thing.
Procedure for filing a demurer to
evidence:
1. Prosecution rests
2. Accused files a motion for leave
of court to file demurrer to
evidence within five (5) days
after the prosecution rests.
3. The
prosecution
files
its
opposition, or comment to the
motion for leave within five (5)
days from its receipt of the
motion for leave.
4. The court issues an order
granting or denying the motion
for leave.
5. The accused files his demurrer
to evidence either with leave or
without leave of court. If the
motion for leave has been
granted, the accused has ten
(10) days from notice of the
47

A court denies a demurrer to

evidence if in its mind, the evidence is
sufficient.
Note: The order denying the motion
for leave or the demurrer to evidence
itself is not reviewable by appeal or
certiorari before judgment.
Remedy rule 65 denial of right to due
process
Demurrer to evidence filed with
Leave of Court.
What
is
the
significance
of
obtaining prior leave of court in
filing a demurer to evidence?
If the court denies the demurrer
to evidence filed with leave of court,
the accused may adduce evidence in
his defense. When the demurrer to
evidence is filed without leave of
court, the accused waives the right to
present evidence and submits the
case for judgment on the basis of the
evidence for the prosecution.
When is demurrer to evidence
filed with leave of court?
A demurrer to evidence is filed
with leave of court if the earlier-filed
motion for leave to file demurrer
to evidence is granted by the
court.
What is the remedy of the
accused,
whose
demurrer
to
evidence filed with leave of court
was denied?
The accused must now present
his evidence.
Demurer to Evidence Filed without
Leave of Court
When is a demurrer to evidence
filed without leave of court?

There is no prior leave of court

to file demurrer to evidence in the
following instances:
1. The accused files a demurrer to
evidence without first filing a
motion for leave of court.
2. The accused filed a demurrer to
evidence notwithstanding that
his earlier filed motion for leave
of court has been denied. (the
motion for leave has been
denied but the accused still filed
a demurrer to evidence)
Additional notes:
Demurrer to Evidence and the
Civil Aspect of the Criminal Action
Case: After the prosecution has
rested its case, the accused files a
demurrer
to
evidence.
In
resolving
the
demurrer
to
evidence, should the trial court
likewise decide the civil aspect of
the case and determine the civil
liability of the accused?
The answer should be qualified
as follows:
a) If the demurrer to evidence
is filed without leave of court:
If the demurrer to evidence is
filed without leave of court, the whole
case is submitted for judgment on the
basis of the evidence for the
prosecution as the accused is deemed
to have waived his right to present
evidence. In this situation, the court is
called upon to decide the case
including its civil aspect, unless the
offended party has waived the civil
action, or has reserved his right to
institute it separately, or has instituted
the civil action prior to the criminal
action.
In case of conviction, the trial
court should state in its judgment the
civil liability or damages to be
recovered by the offended party from
the accused.
In case of acquittal, the accused
may still be adjudged civilly liable
where: (a) the acquittal is based on
reasonable doubt; (b) the court
declares that the liability of the
accused is only civil; or (c) the civil
liability of the accused does not arise
48

from or is not based upon the crime of

which the accused is acquitted.
But if the accused is acquitted
and there is a finding in the final
judgment in the criminal action that
the act or omission from which the
civil liability may arise did not exist,
then the civil action based on the
delict is deemed extinguished.
b) If the demurrer to evidence
is filed with leave of court:
If the court denies the demurrer
to evidence because the evidence
presented by the prosecution is
sufficient, the accused may present
evidence regarding both the criminal
and civil aspect of the case.
If the court grants the demurrer
to evidence because the evidence so
far presented by the prosecution is
insufficient
as
proof
beyond
reasonable doubt, it does not follow
that the same evidence is insufficient
to establish a preponderance of
evidence. Thus, if the court grants the
demurrer, proceedings on the civil
aspect of the case shall proceed,
except if the trial court finds that the
act or omission from which the civil
liability may arise did not exist. (Hun
Hyung Park v. Eung Won Choi, G.R. No.
165496, Feb. 12, 2007)
Scenario: A filed a demurrer to
evidence with leave of court. The
court granted it. How will the
court proceed as to the civil
aspect of the case?
As to the civil aspect of the
case, the court may require the
prosecution
to
prove
the
accuseds
civil
liability
by
preponderance of evidence.
What if in granting the demurrer
to evidence, the court failed to
resolve the civil aspect of the
case?
In such instance, the remedy
by the offended party is to appeal
the civil aspect of the case.
Q: Is denial of a demurrer to
evidence without prior leave of
court equivalent to conviction?
No. The denial of a demurrer
to evidence filed without prior

leave of court is not equivalent to

conviction. It does not even
warrant an automatic conviction.
The court will still determine
whether the evidence presented
by the prosecution can sustain a
conviction
beyond
reasonable
doubt. If it does not, then the
case will be dismissed.
Q: A, the accused, filed a
demurrer to evidence without first
obtaining prior leave of court. It
was denied. Nonetheless, the
court ordered A to present his
evidence. Is the court correct in
issuing such order?
The court is not correct.
When an accused waives his right
to present evidence by filing a
demurrer to evidence without
leave of court, the court may not
order him to present evidence.
Doing so constitutes grave abuse
of discretion.
What is the prosecutions remedy
against an order granting a
demurrer to evidence?
The remedy is not appeal,
but a petition for certiorari under
Rule 65 on the ground of grave
abuse of discretion amounting to
lack or excess of jurisdiction or a
denial of due process or lack or
excess of jurisdiction and upon
showing that there is no appeal,
or any other plain, adequate, and
speedy remedy in the ordinary
course of law.
Depriving the Prosecution an
Opportunity to Prove the Identity
of the Accused Upon Grant of a
Demurrer to Evidence Constitutes
Grave Abuse of Discretion
Scenario: A was charged for
murder before the RTC. The
prosecution
has
already
presented 3 witnesses. It has one
more remaining witness, who
happens to be the one to prove
the identity of A as the author of
the crime. On the day of As giving
of testimony, he failed to appear.
The prosecution moved for a
postponement but the trial court
denied it. Without any evidence to
prove
his
identity
as
the
perpetrator of the crime, A filed a
49

demurrer to evidence. The court

granted it. May the prosecution
appeal the order of the court
granting
the
demurrer
to
evidence? (Sanvicente v. People,
441 Phil. 139 (2002)
No. The prosecution cannot
appeal
such
order
without
violating
the
accuseds
right
against double jeopardy. The
order granting a demurrer to
evidence is an adjudication by
merits, and it operates as an
acquittal of the accused. The
remedy of the prosecution is to
file a petition for certiorari under
rule 65 to set aside the courts
order.
Q: What is the remedy of the
prosecution
when
the
court
dismissed the criminal action on
its own on the
ground
of
insufficiency of evidence, but
without
first
affording
an
opportunity for the prosecution to
be heard?
The prosecutions remedy is
to file a petition for certiorari
under Rule 65. The court acted
with grave abuse of discretion
when it did not afford the
prosecution an opportunity to be
heard.
*Note: Rule 15, Section 9. A
motion for leave to file a pleading
or motion shall be accompanied
by the pleading or motion sought
to be admitted.
The motion for leave to file
demurrer to evidence must then be
accompanied by the demurrer to
evidence itself pursuant to Rule 15.
RULE 120: JUDGMENT
What is judgment? (Rule 120, Sec.
1)
Judgment is the adjudication by
the court that the accused is guilty or
not guilty of the offense charged and
the imposition on him of the proper
penalty and civil liability, if any.
Requisites of a valid judgment
(Rule 120, Sec. 1)
1. It must be written and in the
official language.

2. It must be personally and

directly prepared by the judge.
3. It must contain clearly and
distinctly a statement of the
facts and the law upon which it
is based.
4. It must be signed by the judge
preparing it and filed with the
Clerk of Court.
Why must the judgment state
clearly and distinctly the facts and
law upon which it is based?
The parties to a litigation should
be informed of how it was decided,
with an explanation of the factual and
legal reasons that led to the
conclusions of the trial court. The
losing party is entitled to know why he
lost, so he may appeal to the higher
court, if permitted, should he believe
that the decision should be reversed.
A decision that does not clearly and
distinctly state the facts and law upon
which it is based is precisely
prejudicial to the losing party, who is
unable to pinpoint to possible errors of
the court for review by a higher
tribunal. (Lumanog, et. al. v. People,
GR No. 182555, September 7, 2010)
What
is
a
JUDGMENT?

SIN

PERJUICIO

Note: A judgment that fails to state

clearly and distinctly the facts upon
which it is based, is called a sin
perjuicio judgment. It is void.
Memorandum Decision and Minute
Resolution
What is a Memorandum decision?
A memorandum decision is a
decision which adopts by reference
the findings of fact and conclusions of
law contained in the decision of an
inferior tribunal. (Oil and Natural Gas
Commission v. CA GR No. 114323, July
23, 1998)
It is allowed and is not violative
of the Constitutional provision that a
decision shall contain the facts and
the law upon which it is based. By its
very
nature,
a
memorandum
decision may be rendered only by
an appellate tribunal.

50

(In other words, nangopya lang

ng decision ang appellate court. Hehe.
Note that in a memorandum decision,
it is the decision of the lower court
that is adopted, not the references, or
arguments on points of facts and law
made by the parties through their
pleadings, motions, position papers,
briefs, memoranda, etc. In the broad
sense though, even decisions adopting
the
parties
position
papers,
memoranda, and pleadings are also
called memorandum decisions.)
What is a minute resolution?
Simply put, a minute resolution
is a resolution denying petitions for
review, appeal, etc., in the shortest
possible way.
Eg. Please take notice that the
Court issued a resolution in this case,
dated ______ and reads as follows: The
petition is denied for lack of merit. No
further explanation is added. It is a
one page resolution that has nothing
attached to explain why the said
judgment was arrived at.
Is a minute resolution valid?
Its
validity
must
be
qualified. It is valid for dismissing
a petition for review. It is an
adjudication
by
merit
which
becomes final.
Rationale: (As quoted from Jandy J.
Agoy v. Araneta Inc., GR No. 196358,
March 21, 2012)
Minute resolutions are issued for
the prompt dispatch of the actions of
the Court. While they are the results
of the deliberations by the Justices of
the Court, they are promulgated by
the Clerk of Court or his assistants
whose duty is to inform the parties of
the action taken on their cases by
quoting verbatim the resolutions
adopted by the Court. Neither the
Clerk of Court nor his assistants take
part in the deliberations of the
case. They
merely
transmit
the
Courts action in the form prescribed
by its Internal Rules. As the Court
explained in Borromeo v. Court of
Appeals, no law or rule requires its
members to sign minute resolutions
that deny due course to actions filed
before it or the Chief Justice to enter
his certification on the same. The

notices quote the Courts actual

resolutions denying due course to the
subject actions and these already
state the required legal basis for such
denial. To require the Justices to sign
all its resolutions respecting its action
on new cases would be unreasonable
and unnecessary.

question
the
validity
of
the
information. When he was required to
comment, A did not comply. With
nothing to support his argument, and
for his failure to file a comment, the
Supreme Court denied his petition in a
minute resolution and ruled that the
criminal information was valid.

While
the
Constitution
requires every court to state in its
decision clearly and distinctly the
fact and the law on which it is
based, the Constitution requires
the court, in denying due course
to a petition for review, merely to
state the legal basis for such
denial.

The case prospered. During the

pre-trial, A again questioned the
validity of the information. The
Sandiganbayan ruled that it was valid
as per the minute resolution by the
Supreme Court. A once again went to
the Supreme Court alleging that the
Sandiganbayan acted with grave
abuse of discretion. A argued that the
validity of the information filed against
him could not be ruled upon by the
courts in a minute resolution. The
dismissal of his previous petition was
due to his failure to file a comment,
and not some other grounds.

The Court has repeatedly said

that minute resolutions dismissing the
actions filed before it constitute
actual
adjudications
on
the
merits. They are the result of
thorough deliberation among the
members of the Court. When the
Court does not find any reversible
error in the decision of the CA and
denies the petition, there is no need
for the Court to fully explain its
denial, since it already means that
it agrees with and adopts the
findings and conclusions of the
CA. The decision sought to be
reviewed and set aside is correct.
Even the Validity of a Criminal
Information may be Ruled Upon in
a Minute Resolution
Jose B. Del Rosario Jr. V People of
the Phil., GR No. 143419, June 22,
2006.
Facts: At first, the Ombudsman did not
find probable cause to indict A for
violation of the graft and corrupt
practices act. It held this view on
review. On motion for reconsideration,
it again reiterated its finding that no
probable
cause
exists
for
As
indictment.
Another
motion
for
supplemental
reconsideration
was
filed, and this time, the Ombudsman
found probable cause to indict A. In
other words, the Ombudsman had a
change of mind, after three resolutions
finding no probable cause for As
indictment. The information was filed
in the Sandiganbayan. A filed a motion
to quash but the same was denied. A
filed a petition for certiorari to
51

The Supreme Court simply

resolved otherwise. It held that the
dismissal of the previous petition, and
their ruling that the information is
valid is an adjudication by merits. It
attained finality and res judicata may
set in, barring a relitigation on the
same issue.
Error of Judgment and Error of
Jurisdiction
Error of jurisdiction arises from
failure to comply with the requisites of
a valid judgment. It is a void
judgment, the remedy for which is a
petition for certiorari under Rule 65.
An error of judgment arises
when the wrong and inapplicable set
of facts and law was used. It is a valid
judgment though it may be wrong.
Such judgment is valid subject of
appeal. (People v. CA G.R. No. 144332,
June 10, 2004, 431 SCRA 610 as cited
in Almuete v People. These cases shall
be discussed later in the topics of
appeal and promulgation of judgment)
Contents
of
a
Judgment
Conviction (Rule 119 Sec. 2)

of

The judgment of conviction shall

state the following.
1) The legal qualification of the
offense constituted by the acts
committed by the accused;

2) The aggravating and mitigating

circumstances which attended
the commission of the offense,
if any;
3) The participation of the accused
in the offense whether as
principal,
accomplice,
or
accessory;
4) The penalty imposed upon the
accused;
5) The civil liability or damages
caused by his wrongful act or
omission to be recovered from
the accused by the offended
party, if there is any, unless the
enforcement of the civil liability
by a separate civil action has
been reserved or waived.
Contents
of
a
Judgment
Acquittal (Rule 119 Sec. 2)

of

The judgment of acquittal shall

state the following.
a. Whether or not the evidence of
the
prosecution
absolutely
failed to prove the guilt of the
accused, or merely failed to
prove
his
guilt
beyond
reasonable doubt;
b. Determination if the act or
omission from which the civil
liability might arise did not
exist;
Duplicity
of
Complaint
Information (Rule 120, Sec. 3)

or

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 for each offense,
setting out separately the findings of
fact and law in each offense.
*Note: Refer to earlier discussions
regarding this matter.
For what offense may the accused
be convicted of? (Rule 120, Sec. 4)
The
accused
may
be
convicted of the crime charged
provided
it
is
duly
proved.
However, in case of variance between
the offense charged and that proved,
the accused shall be convicted of the
offense proved which is included in the
52

offense charged, or of the offense

charged which is included in the
offense proved.
What is the rule of variance?
Note: Sec. 4 of Rule 120 is known
as the Rule on Variance. This rule
also answers the question as to
what offense may an accused be
convicted of in case of variance.
When does the offense charged
include the offense proved? (Rule
120, Sec. 5)
An offense charged necessarily
includes the offense proved when
some of the essential elements or
ingredients of the former, as alleged in
the
complaint
or
information,
constitute the latter.
When is the offense charged
necessarily included in the offense
proved? (Rule 120, Sec. 5)
An
offense
charged
is
necessarily included in the offense
proved, when the essential ingredients
of the former constitute or form part of
the latter.
Note: Robbery
theft.

necessarily

includes

Murder or parricide necessarily

includes
homicide
and
physical
injuries.
Rape necessarily includes Acts
of Lasciviousness, Seduction.
Robbery with Force Upon things
is different from and does not include
or is necessarily included in Robbery
with Violence, or Intimidation against
Persons.
Attempted
Rape
Necessarily
Includes Light Coercion or Unjust
Vexation (Renato Baleros Jr. V.
People, GR No. 138033, January
30, 2007)
Facts: A, a lady is sleeping at
her dormitory room located at the
third floor. B, a man, climbed up to her
window, stealthily opened it, and was
about to place a handkerchief laden
with knockout gas on As face.
Fortunately, before A could inhale any
of the fumes, she noticed Bs
presence. B hastily went on top of A

and tried his best to make A inhale the

fumes. B failed. A was later charged
for attempted rape. The information
alleged that B committed preparatory
acts for rape. The trial court arrived at
a judgment of conviction. When the
case reached the Supreme Court
though, the judgment of conviction for
attempted rape was overturned.
Instead, the Supreme Court held that
B is liable for unjust vexation, an
offense necessarily included in the
charge of attempted rape. The Court
ruled that there is doubt as to the true
intention of B. Although a reasonable
man would presume that B intended
nothing else but to rape A just by
looking at the facts of the case, the
Court ruled that B could have had
other things in his mind aside from
raping A. With his intent unkown, B
could not be held liable for attempted
rape or other crimes. Still, it is a fact
that A was severely annoyed by Bs
acts, which is unlawful. The proper
thing to do then is to hold B liable for
unjust vexation.
(Lesson The gist of the decision can
be translated in this phrase - kapag
palpak ka na mangrape, nangiinsulto
ka lang. Hehe)
From
this
Supreme
Court
decision, it may be inferred that other
crimes that bring about unjustified
insults
necessary
include
unjust
vexation as well. Eg. Murder, etc.
Promulgation of Judgment (Rule
119, Section 6)
How is judgment in a criminal
case promulgated?
The judgment is promulgated by
reading it in the presence of the
accused and any judge of the court in
which it was rendered. However, if the
conviction is for a light offense, the
judgment may be pronounced in the
presence
of
his
counsel
or
representative. When the judge is
absent or outside the province or city,
the judgment may be promulgated by
the clerk of court.
Note: Promulgation of judgment in a
civil case is different. For purposes of
this subject, always note that the
topics primarily refer to criminal cases.

53

How is judgment promulgated if

the accused is absent during the
date of promulgation?
In case the accused fails to
appear at the scheduled date of
promulgation of judgment despite
notice, the promulgation shall be
made by recording the judgment in
the criminal docket and serving him a
copy thereof at his last known address
or thru his counsel.
Promulgation
must
be
made
during the incumbency of the
judge who penned the decision.
Case: Judge X prepared and
signed a judgment which was
dated on June 1, 2011. The
accused received the notice of
promulgation on July 1, 2011. In
the said notice, the promulgation
was set on July 16, 2011. Before
the promulgation, Judge X died on
July 10, 2011. Nonetheless, the
promulgation proceeded as the
Clerk of Court relied on the
provision of the rules stating that
when the judge is absent or
outside the province or city, the
judgment may be promulgated by
the Clerk of Court. Is the
judgment valid?
No, the judgment is void.
The said judgment may never be
promulgated. Promulgation must
be made during the incumbency
of the judge who penned the
decision. The absence referred to
in
the
said
rule
refers
to
temporary absence. In case of a
judges
death,
dismissal,
resignation, or promotion, the
absence is permanent and the
judge ceases to be the judge of
the court.
Note: Always remember, an earlier
penned decision may not be
promulgated after the judge who
prepared and signed it becomes
permanently absent dismissed,
dead, resigned, or promoted.
What then will happen in such
instances?
The court and the accused
has no choice but to wait for the
next judge to review the records
of the case, prepare and sign the

decision, set the

and promulgate it.

promulgation,

Is a judgment void due to

reason
that
the
judge
prepared,
signed,
promulgated it, is not the one
heard the case?

the
who
and
who

No. 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 records is sufficient
to support its conclusion. (People
v.
Alfredo,
GR
No.
188560,
December 15, 2010)
Promulgation
must
where the court sits

be

In case the accused fails to

appear at the scheduled date of
promulgation of judgment despite
notice, and the judgment is one of
conviction, the accused shall lose his
right to appeal or avail of any of
the
post-conviction
remedies
provided his absence was without
justification.
*Note: It is for this reason that
some authors state that the
presence of the accused is needed
during
promulgation.
Just
remember that absence of the
accused during promulgation will
not invalidate the proceedings,
unlike in arraignment and in-court
identification.
Other discussions/notes:

made

Absence of the Accused During

Promulgation

Case: The criminal action is filed

in Baguio City. Nonetheless, after
a change of venue, trial was
conducted in La Union. The
judgment was promulgated in La
Union.
The
date
of
the
promulgation though, falls on a
Baguio
holiday.
Is
the
promulgation valid?

May a judgment be promulgated

in a criminal case even in the
absence of the counsel for the
accused?
(Icdang
v.
Sandiganbayan, G.R. No. 185960,
Jan. 25, 2012)

Yes, the promulgation is

valid. The judgment must be
promulgated where the court sits.
In this case, the court sits in La
Union, and not in Baguio.
Notice of the Promulgation to the
Bondsman, Warden, or Counsel is
Notice to the Accused.
The proper clerk of court shall
give notice to the accused personally
or through his bondsman or warden
and counsel, requiring him to be
present at the decision.
Notice in case of Trial in Absentia
If the accused was tried in
absentia because he jumped bail or
escaped from prison, the notice to him
shall be served at his last known
address.
Accuseds
absence
promulgation.

during

What is the effect of the accuseds

absence during promulgation?
54

Yes. The presence of counsel

for the accused is not indispensable
for promulgation.
What are the post-conviction
remedies of the accused?
The post-conviction remedies of
the accused are the following.
1)
2)
3)
4)

Motion for Reconsideration.

Appeal
Motion for New Trial
Motion to Reopen Trial

Note: In the above list, the remedies

of Habeas Corpus and reliance upon
DNA Testing may also be added.
Are there instances when the
accused does not appear during
the promulgation yet he does not
lose his right to appeal or to avail
of his post-conviction remedies?
Yes. If the conviction is for a
light offense, the judgment may be
pronounced in the presence of the
accuseds
counsel
or
his
representative. In such instance, even
if the accused was absent, he does not

lose his right to avail of the postconviction remedies.

What then is the remedy of the
accused who failed to attend the
promulgation of judgment?
Within fifteen (15) days from the
promulgation
of
judgment,
the
accused must surrender and file a
motion for leave of court to avail of
the post-conviction remedies. He shall
state the reasons for his absence at
the scheduled promulgation and if he
proves that his absence was for a
justifiable cause, he shall be allowed
to avail of the said remedies within
fifteen (15) days from notice.
Note:
The accused needs to
surrender, and not just file the motion
for leave.
The court shall decide whether
the reason for the absence of the
accused is justified or not. If the court
finds the reasons justified, it issues an
order granting the motion and
ordering the accused to avail of the
remedies within 15 days from notice of
the order. If the court finds the reasons
unjustified, it denies the motion.
Diagram

Note: Prior to conviction, the

accused may be on bail. It will
only be after the promulgation of
the judgment that the bail will be
ordered cancelled and a warrant
of arrest may be issued as against
the accused. A situation may now
arise
where
instead
of
the
accused surrendering before the
court, it will be the authorities
arresting him.
Q:
What
if,
instead
of
surrendering, the accused was
arrested. Nonetheless, he still
filed a motion for leave to avail of
the post-conviction remedies. May
the court act upon his motion?

55

Yes, the court must still act

upon his motion. The rules must
be construed in favor of the
accused. The word surrender is
synonymous with or includes the
concept of arrest. Even if he did
not
surrender,
but
he
was
arrested just the same, the Court
and the proper authority have
custody over his person. Thus, if
he can show that his absence
during the promulgation despite
due notice is justifiable, the court
may still grant his motion.
Q:
What is the remedy of the
accused against the courts order
cancelling his bond?
The proper remedy is to file
with the Court of Appeals a
motion to review the said order in
the
same
regular
appeal
proceedings, as an incident to his
appeal the filing of a separate
petition via a special civil action
or special proceeding questioning
such adverse order before the
appellate court is proscribed.
(Chua v CA, 520 SCRA 729, April
12, 2007)
Case: In a case for Homicide, the
accused failed to attend the
promulgation despite due notice.
Within
15
days
from
the
promulgation, he filed a motion
for reconsideration.
a) What must the trial court
do?
b) Will
the
motion
for
reconsideration stay the
judgment?
Answer:
a) The court may deny the
motion
for
reconsideration,
outright. It is not the proper
remedy. By the accuseds absence
during the promulgation, he is
deemed to have waived his right
to appeal, and avail of the other
post-conviction remedies.
c)
The
motion
for
reconsideration will not stay the
judgment. The judgment simply
lapses into finality.
Note: Availing of any of the postconviction remedies without first

filing a motion for leave to avail of

the said remedies, is the wrong
remedy. The court may simply
deny the accuseds application for
the said remedies, and the
judgment becomes final.
Promulgation by Appellate Courts;
Erroneous Remedies of Motion for
Repromulgation and Petition for
Certiorari
under
Rule
65;
Prescription of Right to Appeal.
Q: A was absent during the
promulgation of judgment by the
trial court. He was convicted. He
claimed to be ill alleging that he
was suffering from severe stress
and upon consultation with a
doctor, he was advised to take a
rest. He did take a rest on the day
of the promulgation. He filed
before the RTC or trial court a
motion
for
reconsideration
questioning the promulgation. It
was denied. On appeal, the
appellate court denied his appeal.
When the records of the case
were brought to the trial court for
execution, he now claims the
appellate
courts
decision
of
conviction must be promulgated
as well by the trial court. Thus, he
filed a motion for repromulgation.
Resolve the case.

Look
into
succeeding case.

the

A motion for Repromulgation or

Petition for Certiorari under Rule
65 are not the proper remedies
(Almuete
v.
People
GR
No.
179611, March 12, 2013)
This is another peculiar case. This case
explains
how
promulgation
of
judgment is done by the Supreme
Court or other appellate courts.
Facts: A, B, C, and D were convicted of
violation of PD 705. They were absent
during the promulgation of the
judgment. Their lawyer claimed that A,
B, and C were ill while D was not
notified of the promulgation. All the
accused
filed
a
motion
for
reconsideration
questioning
the
legality of the promulgation. The trial
court denied their motion. All the
accused filed a petition for certiorari
before
the
CA
asking
for
a
repromulgation. The CA granted their
56

petition. The State through the

Solicitor General appealed the CAs
decision to the SC. The SC ruled in
favor of the State and reinstated the
trial courts judgment. The judgment
has become final and has been
entered into the entry of judgments.
All of the accused still filed a 2 nd and
3rd motion for reconsideration which
were still denied by the Supreme
Court. All of the accused now filed a
motion for clarification before the SC
asking whether they may still appeal
the
trial
courts
judgment
of
conviction. Without any resolution on
their motion, all accused filed a motion
for repromulgation before the trial
court that convicted them. It was
denied. On appeal, they argued
that the trial court ought to have
repromulgated the judgment of
conviction by the Supreme Court
in order for them not to lose their
right to appeal. By this reason
their right to appeal still exists.
Issue:
appeal?

A)

May

the

accused

still

B) Is there a need to
promulgate a decision by the appellate
court in the trial court before the said
decision becomes valid?
Ruling: A) No, the accuseds right
to appeal has already prescribed.
The judgment has long become
final. In fact, there has already
been an entry of judgment.
B) No, a repromulgation of
either the affirmed or modified
judgment of conviction by the trial
court is not necessary. Under
Administrative Circular No. 16-93,
issued on September 9, 1993, The
procedure for the promulgation of
judgments in the trial courts in
criminal cases, differs from that
prescribed for the Supreme Court
and the Court of Appeals where
promulgation is effected by filing
the signed copy of the judgment
with the Clerk of Court who
causes true copies thereof to be
served upon the parties. The
procedural consequence of this
distinction was reiterated in Jesus
Alvarado, etc. Vs. The Director of
Prisons, to wit: By sections 8 and
9 of Rule 53 (now Sections 10 and
11 of Rule 51) in relation to

section 17 of Rule 120 (now

Section 17 of Rule 124), a
judgment is entered 15 days after
its promulgation, and 10 days
thereafter,
the
records
are
remanded to the court below
including a certified copy of the
judgment for execution. In the
case of People vs. Sumilang (44
Off. Gaz., 881, 883; 77 Phil. 764),
it
was
explained
that
the
certified copy of the judgment is
sent by the clerk of the appellate
court to the lower court under
section 9 of Rule 53, not for the
promulgation or reading thereof
to the defendant, but for the
execution of the judgment against
him, it not being necessary to
promulgate or read it to the
defendant, because it is to be
presumed that accused or his
attorney
had
already
been
notified thereof in accordance
with sections 7 and 8, as
amended, of the same Rules 53
(now sections 9 and 10 of Rule
51), and that the duty of the
court of first instance in respect
to such judgment is merely to see
that it is duly executed when in
their nature the intervention of
the court of first instance is
necessary to that end.
The practice of requiring the
convict to appear before the trial
court for promulgation of the
judgment of the appellate court
should, therefore, be immediately
discontinued.
Question No. 1 for the 2014 Bar
Examination in Remedial Law
Waiver to avail of post judgement
remedies is not a waiver to
favourable judgement on appeal.
Ludong, Balatong, and Labong
were charged with murder. After trial,
the court announced that the case was
considered submitted for decision.
Subsequently, the Court issued the
notices of promulgation of judgment
which
were
duly
received.
On
promulgation day, Ludong and his
lawyer appeared. The lawyers of
Balatong and Labong appeared but
without their clients and failed to
satisfactorily explain their absence
when queried by the court. Thus, the
57

judge ordered the Clerk of Court to

proceed with the reading of the
judgment convicting all the accused.
With respect to Balatong and Labong,
the judge ordered that the judgment
be entered in the criminal docket and
copies be furnished to their lawyers.
The lawyers of Ludong, Balatong, and
Labong, filed within the reglementary
period
a
Joint
Motion
for
Reconsideration. The court favorably
granted the motion of Ludong
downgrading his conviction from
murder to homicide but denied the
motion as regards Balatong and
Labong.
a) Was the court correct in
taking cognizance on the
Joint
Motion
for
Reconsideration?
b) Can Balatong and Labong
appeal their conviction in
case Ludong accepts his
conviction for homicide?
Answer: a) Yes, the court was correct
in taking cognizance on the Joint
Motion for Reconsideration, but only as
to Ludong. The court should treat the
motion as if it has been filed only by
Ludong. Any resolution made by the
court on the motion will only affect
Ludong. Balatong and Labong have
already lost their right to avail of post
conviction remedies.
(People v.
Delgado, 2009)
b) No, Balatong and Labong
can no longer appeal their judgment of
conviction. They are deemed to have
waived their right to appeal and other
post
conviction
remedies.
The
judgment simply lapses into finality.
Suppose, in the situation above,
this question was asked. Will the
judgment
downgrading
the
offense committed by Ludong
benefit Balatong and Labong?
No, such judgment in Ludongs
favor will not benefit Balatong and
Labong. Although the rules provide
that a favorable judgment for an
accused who appealed, will benefit his
other other co-accused if the judgment
is favorable and applicable to them,
this is not the case for a motion for
reconsideration. The rules do not
provide for a similar effect of
rendering a favorable judgment.

Finality of Judgment. (Rule 120,

Section 7)

(Colinares v. People, GR
182748, December 13, 2011)

A judgment of acquittal
immediately final and executory.

Case: A was convicted of Frustrated

Homicide. He was meted the penalty
of from 2 years and 4 months of
prision correccional, as minimum, to 6
years and 1 day of prision mayor, as
maximum. During the trial, A insisted
that he is liable for Attempted
Homicide,
and
not
Frustrated
Homicide. He reiterated this argument
on appeal and at the same time
claimed that he is entitled to
probation. When the case reached the
Supreme Court, it held that A is indeed
liable for Attempted Homicide. His
penalty is modified to 4 months of
arresto mayor, as minimum, to 2 years
and 4 months of prision correccional,
as maximum, which is now allowed for
probation. The Court also pronounced
that A is qualified for probation. In
appealing his case, Colinares raised
the issue of correctness of the penalty
imposed on him. In a way, therefore,
he sought from the beginning to bring
down the penalty to the level where
the law would allow him to apply for
probation. In a real sense, the SCs
finding that Colinares was guilty, not
of frustrated homicide, but only of
attempted homicide, is an original
conviction that for the first time
imposes on him a probationable
penalty.

is

A judgment imposing the death

penalty is always subject to automatic
review. (This part is better discussed in
the subject matter of appeal)
A
judgment
of
conviction
becomes final upon the following
instances.
a) After the lapse of the period for
perfecting an appeal without an
appeal having been perfected.
b) When the sentence has been
partially or totally satisfied/
Total or partial service of
sentence.
c) When the accused has waived
in writing his right to appeal
d) When the accused has applied
for a probation.
Note: Even though the Rules of Court
mention that a judgment of conviction
becomes final after the lapse of the
period for perfecting an appeal, it is
understood that in such instance, no
appeal was ever perfected.
Application for probation must
be filed within the same period for
perfecting an appeal.
Probation and appeal are two
exclusive and incompatible remedies.
Jurisprudence dictates that they are
mutually exclusive remedies. Applying
for probation excludes the right to
appeal. The former is a waiver of the
latter. In applying for probation, the
accused is deemed to have accepted
the correctness of the judgment of
conviction against him. To apply for
probation, the judgment needs to
become final. In the opposite side,
appealing the case excludes one from
applying for probation. Resorting to
appeal is a waiver of the privilege to
apply for probation. In appeal,
judgment is stayed and does not
become final. The accused does not
accept
the
correctness
of
the
judgment and throws the whole case
for review.
But appealing the penalty alone
and not the conviction for a crime,
may entitle one for Probation.
58

Modification of
120, Section 7)

Judgment

No.

(Rule

A judgment of conviction may,

upon motion of the accused, be
modified or set aside before it
becomes final or before appeal is
perfected.
Entry of Judgment
Section 8)

(Rule

120,

After a judgment has become

final, it shall be entered into the book
or entry of judgments.
Applicability
of
the
Rules
governing
suspension
of
sentence, probation and parole.
Nothing in this Rule shall affect
any existing provisions in the laws
governing suspension of sentence,
probation, or parole.

Eg. Cases of an accused that is below

18 years of age, but over 15 years of
age at the commission of the crime.
(*In other words, 16-17 years old)
The said accused is entitled to
an automatic suspension of sentence.
But if the imposable penalty for the
offense is death, reclusion perpetua,
or life imprisonment, there is no
automatic suspension of sentence.
Thus, if the imposable penalty is
reclusion
perpetua,
but
after
application of the Indeterminate
Sentence Law, the penalty imposed is
Reclusion Temporal, the accused is not
entitled to automatic suspension of
sentence.
POST CONVICTION REMEDIES
New Trial or Reconsideration (Rule
121)
At any time before a judgment
of conviction becomes final, the court
may, on motion of the accused or at
its own instance but with the consent
of the accused, grant a new trial or
reconsideration.
Note: The court, on its own initiative,
may grant or cause new trial or
reconsideration of its judgment.
If the accused wants to avail of
new trial or reconsideration, he must
file a motion before the judgment of
conviction becomes final.
Grounds for New Trial (Rule 121
Section 2)
The court shall grant a new trial
on any of the following grounds:
a) Errors of law, irregularities
prejudicial to the substantial
rights of the accused have
been committed during the
trial;
Eg. The accused calls for a
witness
but
the
court
disallowed it.
The
court
forces
a
witness to testify against
himself.
The judge/court is the
one
conducting
the
preliminary
investigation,
conducts trial without notice
59

to parties, and capriciously

denies demurrer to evidence
(Gacayan v Pamintuan)

b) 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.
Note: The rule speaks of
newly
discovered
evidence
and
not
forgotten evidence.
Newly Discovered Evidence
Is the discovery of new witness/es
a ground for new trial?
It depends. If the testimony of
the witness pertains to new and
material evidence, then it is. If not,
then it will not be a ground for new
trial.
How about a witness retracting
his testimony? Is it a newly
discovered evidence?
No. Recantation of testimonies
is not allowed. A recantation is the
renunciation in a formal or public
withdrawal of a prior statement of a
witness. This is frowned upon by the
courts. The original testimony should
be given more credence.
Note: While this is the way to
answer in classroom discussions
or the bar exam, the opposite is a
prevailing practice in real life. A
motion to dismiss, whether in the
preliminary
investigation,
trial
court, or appellate court is filed,
coupled with an Affidavit of
Desistance
executed
by
the
witness/es. In the said affidavit,
the
witness/es
recant
their
previous testimonies. The motion
to dismiss bears the consent of
the public prosecutor, and asks for
the dismissal of the case on the
ground
of
inability
of
the
prosecutor
to
prove
beyond
reasonable doubt the guilt of the

accused, as it is bereft of any

evidence to prove it.

petition to the court of origin and issue

the appropriate orders.

But what if the sole evidence for

the prosecution is a lone witnesss
testimony,
which
was
later
discovered to be false, is the
subsequent recantation of the
sole
witness,
now
a
newly
discovered evidence?

Ground for Reconsideration (Rule

121 Section 3)

In that case, it is believed

that it is.
What about DNA Evidence?
DNA Testing as a Post-Conviction
Remedy
What is the rule regarding PostConviction DNA Testing?
The rule on post-conviction DNA
testing is expressed in A.M. No. 06-115-SC, Effective Oct. 15, 2007, as
follows:
Sec. 6. Post-conviction DNA
Testing. Post-conviction DNA testing
may be available, without need of
prior court order, to the prosecution or
any person convicted by final and
executory judgment provided that (a)
a biological sample exists, (b)
such sample is relevant to the
case, and (c) the testing would
probably result in the reversal or
modification of the judgment of
conviction. (Rule on DNA Evidence,
A.M. No. 06-11-5-SC, Effective Oct. 15,
2007)
Sec. 10. Post-conviction DNA
Testing Remedy if the Results Are
Favorable to the Convict. The convict
or the prosecution may file a petition
for a writ of habeas corpus in the court
of origin if the results of the postconviction DNA testing are favorable
to the convict. In case the court, after
due hearing, finds the petition to be
meritorious, it shall reverse or modify
the judgment of conviction and order
the release of the convict, unless
continued detention is justified for a
lawful cause.
A similar petition may be filed
either in the Court of Appeals or the
Supreme Court, or with any member of
said courts, which may conduct a
hearing thereon or remand the
60

The
court
shall
grant
reconsideration on the ground of
errors of law or fact in judgment,
which requires no further proceedings.
Reopening of trial (Rule 119,
Section 24)
At any time before finality of the
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.
New Trial
distinguished
Reopening of Trial

from

New Trial
When
Filed:

Grounds
:

Reopening of
Trial
Anytime
Anytime
before
before
judgment of finality
of
conviction
judgment of
becomes
conviction.
final.
Limited only To
avoid
to
those miscarriage
mentioned in of justice.
Rule
121, *Note: This is
Sec. 2
a very broad
ground.
It
will warrant
resorting to
Reopening of
Trial in case
the grounds
for
appeal,
new trial, or
reconsiderati
on are not
available.

Note: Remember the language of the

rules. In the period to file the above
remedies, they are similar yet phrased
differently.
Habeas Corpus as a Postconviction Remedy
In what instances may habeas
corpus be resorted to as postconviction remedy?

The writ of habeas corpus may

be resorted to as post-conviction
remedy in any of the following
exceptional circumstances:
a)
there
has
been a deprivation of a constitutional
right resulting in the restraint of a
person;
b)
the court had
no jurisdiction to impose the sentence;
c)
the imposed
penalty is excessive, thus voiding the
sentence as to such excess.
Under
the
Rule
on
DNA
Evidence, habeas corpus may also be
resorted to as post-conviction remedy
where the result of the DNA
examination is favorable to the
accused.
Thus, the writ of habeas corpus
was held available where an accused
was deprived of his right against selfincrimination. (cited in de Villa v. The
Director, New Bilibid Prisons, G.R. No.
158802, Nov. 17, 2004).
But habeas corpus is not
available as post-conviction remedy
where the appeal is still pending.
(People v. Maquilan, G.R. No. 126170,
Aug. 27, 1998).
RULE 122 (APPEAL)
Who may appeal?
The following may appeal.
a) The State Any appeal made
by the State must yield to
Double Jeopardy.
b) The Accused.
c) The Private Offended Party
with respect to the civil
aspect of the case.
The
State
Questioning
or
Appealing a Judgment of Acquittal
*In this particular topic, the more
proper
term
is
The
State
Questioning/Assailing/
(other
similar terms) a Judgment of
Acquittal. A petition for Certiorari
under Rule 65 is not, as it is never,
a mode of appeal. A petition for
certiorari is an independent and a
special civil action. It is not a

61

continuance of the proceedings of

the lower court.
Note: The state may assail a
judgment of acquittal only upon
the ground that it was deprived of
due process. The remedy is a
petition for certiorari under Rule
65 on the ground of grave abuse
of discretion amounting to lack or
excess of jurisdiction or denial of
due process, or lack or excess of
jurisdiction. It must clearly be
shown
that
the
State
was
deprived of due process.
The Supreme Court ruled, in
Ysidoro
v.
Hon.
Leonardo-de
Castro et al., G.R. No. 171513,
Feb. 6, 2012, that the rule against
double
jeopardy
cannot
be
properly invoked in a Rule 65
petition,
predicated
on
two
exceptional grounds, namely: in a
judgment of acquittal rendered
with grave abuse of discretion by
the
court;
and
where
the
prosecution had been deprived of
due process.
Exceptional case of Galman v.
Sandiganbayan. 228 Phil, 42 1986
This case has something to do
with
the
Aquino-Galman
double
murder case. Just to appease the
publics hunger for speedy disposition
of the case, the case was fast tracked.
In the process, everything seemed to
be framed, scripted, and the trial was
later ruled out to be a sham or mock
trial. The court acquitted all the
accused. The prosecutors though were
never given a decent chance to
present its evidence and witnesses.
The judgment of acquittal was
appealed. Upon review, the SC ruled
that the judgment of acquittal came
about as a result of grave abuse of
discretion by the courts leading to a
denial or deprivation of the States due
process.
Grave Abuse of Discretion in
Granting a Demurrer to Evidence
Deprives the State or Prosecution
of its Due Process
In Sanvicente v. People, 441
Phil. 139 (2002), the Supreme Court
upheld the decision of the CA which
reversed the acquittal of the accused
upon a demurrer to evidence, holding

that the trial court committed grave

abuse of discretion in preventing the
prosecution from establishing the due
execution and authenticity of a certain
letter marked as Exh. LL which
positively identified the accused as the
perpetrator of the crime charged.

Note: The subsidiary liability of

the employer may be enforced in
the same action by way of a
motion.

In another case, People v CA

G.R. No. 144332, June 10, 2004, 431
SCRA 610 as cited in Almuete v
People, 2013, the Supreme Court
reversed and set aside an order of
acquittal by the CA. In this case
though, the CA acted with grave abuse
of discretion in issuing the judgment. It
entertained the case despite the
wrong mode of appeal resorted to.

Note: The accused has 15 days from

the date of promulgation to appeal.

Case: ABC is a bus company. D is

one of its employees. D in one
occasion rammed the bus he was
driving resulting to loss of lives
and damage to properties. D was
charged
with
Reckless
Imprudence resulting to multiple
homicide, for which he was
convicted.
On
the
date
of
promulgation, D was present. D
was ordered to pay a substantial
amount to the victims. He was
nowhere to be located during the
15-day period to perfect his
appeal. It is now ABC Bus
Company,
who
perfected
an
appeal. It contended that as an
employer, it has an interest over
the case. With D missing, it will be
the bus company which is likely to
shoulder and pay the award. May
the appeal prosper? (Philippine
Rabbit Bus Lines v. Heirs of
Eduardo Mangawang and the
People of the Philippines, GR No.
160355, May 16, 2005)
No. ABC Bus Company is not
a party to the criminal action. The
employers participation is limited
to providing its employees with
adequate legal defense. And if
because of his indifference or
inaction
the
employee
is
convicted
and
damages
are
awarded against him, he cannot
later be heard to complain, if
brought
to
court
for
the
enforcement of his subsidiary
liability, that he was not given his
day in court.

62

Period
Appeal

for

Perfection

of

the

Note: The private offended party has

15 days from actual or constructive
notice of the judgment to perfect his
appeal.
What is the fresh 15-day period
doctrine, or the fresh period rule,
or the Neypes doctrine? (Neypes v
CA, GR No. 141524, Sept. 14,
2005)
This doctrine provides that
the 15 day period to perfect an
appeal is counted not only within
15 days from the notice of the
judgment but also within 15 days
from the notice of the final order
appealed from. If a motion for
reconsideration or a motion for
new trial is denied, such denial is
deemed as the final order. From
receipt of such notice of denial,
the movant has another fresh
period within which to appeal.
The new 15-day period may be
availed of only if either motion is
filed; otherwise, the decision
becomes final and executory after
the lapse of the original appeal
period
from
notice
of
the
judgment.
Illustration.
A was convicted. The Promulgation
was on October 1, 2014. Thus, A has
until October 16, 2014 to perfect an
appeal. However, instead of filing an
appeal, he filed, say a motion for
reconsideration or a motion for new
trial on October 15, 2014. The motion
was denied. A received the order of
denial on November 15, 2014. When
will the 15-day period be reckoned
from? How many days does A have to
perfect his appeal?
Applying the Neypes ruling, As
15-day period to appeal is to be
counted from November 15, 2014, and
not from October 1, 2014. A still has
15 days from to be counted from

November
15,
2014,
or
until
November 30, 2014 to perfect his
appeal. He does not have just one day
left, which is the remaining day of the
15-day period counted from October 1,
2014.
Effect of Appeal
A duly perfected
stays the judgment

appeal

Note: Sec. 11 of Rule 122.

Effect of appeal
several accused.

by any

of

a) An appeal taken by one or

more of several accused
shall not affect those who
did
not appeal, except
insofar as the judgment of
the
appellate
court
is
favorable and applicable to
the latter.
b) The appeal of the offended
party from the civil aspect
shall not affect the criminal
aspect of the judgment or
order appealed from.
c) Upon perfection of the
appeal, the execution of the
judgment or final order
appealed from shall be
stayed as to the appealing
party.
Case: A and B are charged for
murder. The RTC found them
guilty beyond reasonable doubt.
Both are present during the
promulgation. A duly perfected an
appeal, while B did not. What
becomes
of
the
judgment
rendered in A and B?
The judgment becomes final as
to B, the accused who did not appeal.
However, as to A, the accused who
appealed, the judgment is stayed.
What is the effect of the judgment
rendered by the appellate court
on B?
As a rule, any judgment
rendered by the appellate court has no
effect as to the accused who did not
appeal. However, if the judgment is
favorable and applicable to the
accused who did not appeal, it will be
applied to him.

63

Case: A and B are charged with

murder. During the trial, B claimed
insanity.
A
raised
another
defense. The trial court found
both of them guilty beyond
reasonable doubt. B appealed,
and the CA appreciated his
defense of insanity, thus he
obtained a judgment of acquittal.
Will the judgment rendered by the
CA applied to A?
No. While the judgment is
favorable to A, it is not applicable to
him. The defense of B, which is
insanity, is a personal one. It is not
applicable to A.
Note:
Personal
circumstances

imbecility, insanity, minority, etc.

cannot be appreciated in favor of the
other co-accused.
Note: General Rule: Absconding or
jumping bail during the pendency
of appeal results to abandonment
of the appeal.
Exception: When the death
penalty is imposed. Automatic
review is still conducted by the
Supreme
Court
even
if
the
accused absconds or jumps bail
during the pendency of his
appeal, if the penalty imposed is
death. Automatic review affords a
second chance to life.
Note: Death extinguishes a criminal
obligation. As a rule, death of the
accused pending appeal will result
to the dismissal of his appeal. In
certain instances though, if two or
more
co-accused
appealed
separately, death of one will not
necessarily result in the dismissal
of his appeal.
Additional discussions/notes:
C and L, who were charged as coconspirators, were convicted of
violation of R.A. No. 3019 (AntiGraft and Corrupt Practices Act) in
a judgment rendered by the
Sandiganbayan, imposing upon
each of them the penalty of
imprisonment from six years and
one month to twelve years and
one month. They filed separate
appeals to the Supreme Court by
filing their respective petitions for
review on certiorari. Ls appeal

was dismissed on technicality.

During the pendency of the
appeal, C died.
a)
Should
Cs
appeal
be
dismissed on the ground that his
death has rendered his appeal
moot and academic as his death
has already extinguished his
criminal liability?
No. Cs appeal should not be
dismissed. The two petitions are so
intertwined that the absolution of C is
ultimately
determinative
of
the
absolution of L. The exoneration of C
will necessarily signify the injustice of
carrying out the penalty imposed on L.
Thus, the SC, in this instance, has to
ascertain the merits of Cs appeal to
prevent a developing miscarriage of
justice against L.
Courts must still decide cases,
otherwise moot and academic, in the
following instances: (1) there is a
grave violation of the Constitution; (2)
the exceptional character of the
situation and the paramount public
interest
is
involved;
(3)
when
constitutional issue raised requires
formulation of controlling principles to
guide the bench, the bar, and the
public; (4) the case is capable of
repetition yet evading review.
In the problem presented, the
exceptional character of the appeal of
C and L in relation to each other, as
well as the higher interest of justice,
requires that the Court determine the
merits of Cs petition and not dismiss
it outright on the ground of mootness.
b) Does the reversal of the
decision of the Sandiganbayan as
against C benefit L whose appeal
was dismissed on technicality?
Section 11(a), Rule 122 of the
Revised Rules of Criminal Procedure
provides: An appeal taken by one or
more of several accused shall not
affect those who did not appeal,
except insofar as the judgment of the
appellate court is favorable and
applicable to the latter. The phrase
did not appeal applies also to a coaccused who withdrew his appeal,
failed to file an appellants brief, or
filed a notice of appeal with the trial
court but eventually withdrew the
same.
The Supreme Court has at
64

various times applied the foregoing

provision without regard to the filing or
non-filing of an appeal by a coaccused, so long as the judgment was
favorable to him. Thus, the foregoing
provision should be applied to L whose
appeal was dismissed on technicality.
(Constantino v. Sandiganbayan, et al.,
G.R. No. 140656, Sept. 13, 2007;
Lindong v. People, et al., G.R. No.
154482, Sept. 13, 2007.)
Change of Theory or Raising New
Issues on Appeal for the First time
is not allowed.
As a rule, points of law,
theories, issues and arguments not
adequately brought to the attention of
the trial court ordinarily will not be
considered by a reviewing court as
they cannot be raised for the first time
on appeal because this would be
offensive to the basic rules of fair play,
justice and due process. It is only for
exceptional and compelling reasons in
the interest of substantial justice or to
avoid miscarriage of justice that the
court may relax and entertain new
issues on appeal.
On Appeal, a Higher Penalty may
be Imposed
An appeal throws the entire
case open for review. Even the correct
penalty may be increased if it is
proper.
Modes of Appeal
Always remember:
under rule 41 is perfected
by filing a notice of appeal with
the
RTC
that
rendered
the
judgment, and never with the
appellate court.
Within 15 days
The decision of the MTC is
always appealed by way of
ordinary appeal under Rule 40. It
is perfected by filing a notice of
appeal
with
the
MTC
that
rendered the judgment, and never
with the appellate court.
The only way to appeal a
decision rendered by the CA to
the SC is through a petition for
review under Rule 45 on pure
questions of law. There are

certain exceptions though, such

as in cases of automatic review.
Resorting
Appeal.

to

Wrong

Mode

of

As a rule, resorting to the wrong

mode of appeal will not stay the
judgment.
The
judgment
simply
becomes final as if no appeal has ever
been filed or perfected. Once more, it
is only for exceptional and compelling
reasons in the interest of substantial
justice or to avoid miscarriage of
justice that the court may relax the
rules on technicality of appeals.

Note: this case used the phrase, writ

of error it is another term for
ordinary appeal.
Modes
of
Appeal
Sandiganbayan Cases

in

1) The Sandiganbayan imposes

(SB
exercising
original
jurisdiction) or affirms (SB
exercising
appellate
jurisdiction) a penalty lesser
than
death,
reclusion
perpetua,
or
life
imprisonment.

People v CA, G.R. No. 144332,

June 10, 2004, 431 SCRA 610
A, B, C, and D, failed to appear
in the promulgation of the judgment of
conviction against them. They alleged
that they were ill. They never filed any
motion for leave to avail of post
conviction remedies. Instead they filed
a
motion
for
reconsideration
questioning the validity of the
promulgation.
Their
motion
was
denied. They appealed the decision of
the RTC to the CA. Alleging grave
abuse of discretion amounting to lack
or excess of jurisdiction in the conduct
of the promulgation and in the denial
of their motion for reconsideration,
they resorted to a petition for
certiorari under Rule 65. It was
granted, and the CAs decision
reversed the trial courts judgment of
conviction. The State through the
Solicitor General appealed the case to
the SC alleging grave abuse of
discretion on the part of the CA. The
proper remedy of the accused should
have been ordinary appeal, and not a
petition
for
certiorari.
The
SC
subsequently
reversed
the
CAs
judgment of acquittal and reinstated
the judgment of conviction by the RTC.
In doing so, the SC ruled that a
petition for certiorari is only available
when there is no appeal or any other
plain, adequate and speedy remedy in
the ordinary course of law. In the case
of the accused, the judgment of
conviction was not tainted with grave
abuse of discretion. It was a valid
judgment. The proper remedy is
appeal.

65

*Note: This is a peculiar appeal.

In appealing cases from the
Sandiganbayan (SB), it never passes
through the Court of Appeals (CA). As
a rule, cases from the SB are
never appealed to the CA.
Ordinarily, the decision of
the RTC exercising its original
jurisdiction is not appealed via a
rule 42 petition. A Rule 42 petition
supposedly is the one resorted to
in appealing cases decided by the
RTC in its appellate jurisdiction.

2) The Sandiganbayan in the

exercise
of
its
original
jurisdiction
imposes
the
penalty of either reclusion
perpetua
or
life
imprisonment.

3) The Sandiganbayan in the

exercise
of
its
original
jurisdiction
imposes
the
death penalty

Appeal for Regular Courts.

1) Appealing decision of the
MTC/ Appellate jurisdiction
of the RTC (It is understood
that the RTC in its appellate
jurisdiction can only impose
penalties less than death,
reclusion perpetua or life
imprisonment.)

4) The Sandiganbayan in the

exercise of its appellate
jurisdiction
affirms
the
penalty of death, reclusion
perpetua,
or
life
imprisonment

66

3) The RTC in its original

jurisdiction
imposes
the
penalty of either reclusion
perpetua
or
life
imprisonment.

2) The RTC in its original

jurisdiction
imposes
a
penalty less than death,
reclusion perpetua, or life
imprisonment.

4) The RTC in its original

jurisdiction
imposes
the
death penalty.

Rules 123 - 125. Just read these

rules. Note uniformity of procedure,
how judgment is promulgated in the
appellate courts, and their mode of
appeals as amended by relevant
Supreme
Court
Circulars.
(The
67

simplified diagrams showing the

modes of appeal in criminal cases are
shown in the preceding topics.)
SEARCH AND SEIZURE (RULE 126)
Note: This topic is a better scope
for Political law. The presumption
for
students
taking
criminal
procedure is that they were able
to pass criminal law 1 and 2 and
Constitutional law 1 and 2. For
Criminal Procedure, the focus is
on the remedies such as motion to
quash, and the remedies for
denial of a motion to quash. The
requisites as to probable cause,
examination
of
witnesses,
instances of lawful warrantless
searches, and others are better
covered by the subjects on
Political law.

application is filed by the Philippine

National Police (PNP), the National
Bureau of National Investigation (NBI),
the Presidential Anti-Organized Crime
Task Force (PAOC-TF), and the Reaction
Against Crime Task Force (REACT-TF).
The applications shall be personally
endorsed by the Heads of the said
agencies, for the search of places to
be particularly described therein, and
the seizure of property or things as
described in the Rules of Court, and to
issue the warrants of arrest, if justified,
which may be served in places outside
the territorial jurisdiction of said
courts. (AM No. 99-20-09 SC
Note: Search and Arrest warrants
issued pursuant to AM No. 99-2009 SC may be served outside the
territorial jurisdiction of the RTC
of Manila or Quezon City.

What is a search warrant? (Rule

126 Section 1)

Under AM No. 99-20-09 SC, who

acts upon the application?

A search warrant is an order in

writing issued in the name of the
People of the Philippines, signed by a
judge and directed to a peace officer,
commanding him to search for
personal property described therein
and bring it before the court.

The Executive Judge and Vice

Executive Judges of Regional Trial
Courts in Manila and Quezon City act
upon all applications for search
warrants involving heinous crimes,
illegal gambling, dangerous drugs and
illegal possession of firearms.

Where is the application for a

search warrant filed? (Rule 126,
Section 2)

Is it necessary that the heads of

the offices mentioned under AM
No. 99-20-09 SC be the ones to
personally endorse the application
for search warrants?

An
application
for
search
warrant shall be filed with the
following:
a)
Any court within whose
territorial jurisdiction a crime was
committed.
b)
For compelling reasons
stated in the application, any court
within the judicial region where the
crime was committed if the place of
the commission of the crime is known,
or any court within the judicial region
where the warrant shall be enforced.
c)
However, if the criminal
action has already been filed, the
application shall only be made in the
court where the criminal action is
pending.
d)
In
cases
involving
heinous crimes, illegal gambling,
dangerous
drugs
and
illegal
possession of firearms, the application
may be filed with the Regional Trial
Courts of Manila and Quezon City if the
68

No, nothing in AM No. 99-1009-SC prohibits the head of NBI

and of other law enforcement
agencies
mentioned
from
delegating their ministerial duty
of endorsing the application to
their assistant heads. Besides,
under Section 31, Chapter 6, Book
IV of the Administrative Code of
1987, an assistant head or other
subordinate in every bureau may
perform such duties as may be
specified by their superior or
head, as long as it is not
inconsistent
with
law.
(Sps.
Marimla v People GR No. 158467,
October 16, 2009)
Does an application for a search
warrant partake a criminal action
or at least in the nature of a
criminal action?

No. A search warrant

is not
a criminal action nor does it represent
a commencement of a criminal
prosecution even if it is entitled like a
criminal action. 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.
(United Laboratories, Inc. V. Isip, 461
SCRA 574)

against whom properties will be

seized?

*Therefore, the proceedings for

the application for a search
warrant need not be initiated by
the state prosecutor, and the
court
may
not
quash
the
application for a search warrant
or the search warrant itself due to
the fact that it does not bear the
conformity
of
the
public
prosecutor.
(Worldwide
Web
Corporation et al. v. People of the
Philippines
et
al.,
G.R.
No.
161106, Jan. 13, 2014)

(Just imagine the consequences if prior

notice must be given to the person
against whom, personal property will
be seized i.e. drug dealer, suspected
killer, thief, robber, carnapper, etc. All
the weapons, drug paraphernalia, or
any other item that may be
confiscated will easily be concealed
and the application will definitely be
opposed)

Case: The applicant for a search

warrant
filed
his
application
before the court. His application
does not bear the approval or any
conformity
of
the
state
prosecutor. As a consequence, his
application was quashed by the
court. To justify its ruling, it cited
Rule 110, Sec. 5 providing that
All criminal actions commenced
by a complaint or information
shall be prosecuted under the
direction and control of the
prosecutor. Is the court correct?
No, the court is not correct.
Sec. 5, Rule 110 does not apply
because an application for search
warrant, although it is a criminal
process, is not a criminal action.
Therefore, the conformity of the public
prosecutor is not necessary to give the
applicant a personality to question an
order quashing the search warrant.
(Worldwide Web Corporation et al. v.
People of the Philippines et al., G.R.
No. 161106, supra)
Is it necessary to furnish a notice
or copy of the application for a
search warrant to the party

69

No. An application for a search

warrant is heard ex-parte. It is neither
a trial nor a part of the trial. Action on
these applications must be expedited
for time is of the essence. Great
reliance has to be accorded by the
judge to the testimonies under oath of
the complainant and the witnesses.
(Chemise Lacoste, S.A. v Fernandez,
214 Phil. 332; Santos v Pryce Gases,
Inc., GR No. 165122, November 23,
2007)

Does an application for a search

warrant
need
to
have
a
certification
of
non-forum
shopping?
No, there is no rule requiring
that it bears a certification of nonforum shopping.
What property may be seized?
(Rule 126, Section 3)
The property subject of a search
warrant is personal property, not real
property. A search warrant may be
issued not only for the search but also
for the seizure of the following.
a) Personal property subject of the
offense
b) Personal property stolen or
embezzled and other proceeds,
or fruits of the offense; or
c) Personal property used or
intended to be used as a means
of committing an offense.
What are the requisites for a
search warrant under the Rules of
Court? (Rule 126, Section 4)
The following are the requisites
for a search warrant under the Rules of
Court.

a) There must be probable

cause in connection with one
specific offense.
b) The presence of probable
cause is to be determined by
the judge personally.
c) The determination by the
judge must be made after an
examination under oath or
affirmation
of
the
complainant
and
the
witnesses he may produce.
d) The warrant must specifically
describe the place to be
searched and the things to
be seized which may be
anywhere in the Philippines.
*Note: Roving or scattershot warrants
are void. They are issued for more
than one offense.
Adherence
to
the
above
requisites is necessary to prevent a
fishing expedition.
*Note: The topics under this section
are
appropriate
subjects
of
Constitutional Law or Political Law.
What must a judge do before
issuing a search warrant? (Rule
126 Sec. 4)
The judge must, before issuing
the warrant personally examine in the
form of searching questions and
answers, in writing and under oath,
the complainant, and the witnesses he
may produce on facts personally
known to them and attach to the
record
their
sworn
statements,
together with the affidavits submitted.
Are witnesses needed during the
conduct
of
the
search
and
seizure? (Rule 126 Section)
Yes, at least two witnesses are
needed. The Rules provide that no
search of a house, room, or any other
premises shall be made except in the
presence of the lawful occupant
thereof or any member of his family or
in the absence of the latter, two
witnesses of sufficient age and
discretion residing in the same locality.
How long is a search warrant
valid? (Rule 126, Secti. A search
warrant shall be valid for ten (10) days
from its date. Thereafter, it shall be
void.
70

What time must the search be

made? (Rule 126 Section 9)
The warrant must direct that it
be served in the day time, unless the
affidavit asserts that the property is on
the person or in the place ordered to
be searched, in which case a direction
may be inserted that it be served at
any time of the day or night.
What is the remedy of an accused
should he want to question a
search warrant?
The accused must file a motion
to quash the search warrant on the
ground that it is improperly issued or
that it is void.
What is the issue in a motion to
quash a search warrant?
In a motion to quash a search
warrant, what is assailed is the validity
of the issuance of the warrant. The
manner of serving the warrant and of
effecting the search are not an issue
to be resolved in said motion. (People
v CFI of Rizal, 101 SCRA 86, [1980])
Who may question a search
warrant?
Any party whose interests may
be adversely affected may question
the search warrant. (Dean Agra) It is
settled rule that the legality of a
seizure can be contested only by the
party
whose
rights have
been
impaired thereby, and that the
objection to an unlawful search and
seizure is purely personal and cannot
be availed by third parties. (Nasiad v.
CTA, 61 SCRA 238 [1974]; Santos v
Pryce Gases, Inc. GR No. 165122,
November 23, 2007)
Note:
The
manager
of
an
establishment is a real party-ininterest to seek the quashal of the
search warrant, for the obvious
reasons that the search warrant, if he
is named as the respondent and the
place or premises to be searched is
the establishment he is managing. A
corporation, being the owner of the
items seized is also a real party-ininterest who may question the search
warrant. (Santos v. Pryce Gases,
supra)

When must one file a motion to

quash the search warrant?
The motion to quash must be
filed before arraignment and entry of
plea. An accused may be estopped
from questioning the defects in the
issuance or enforcement of the search
warrant by failing to move to quash
the search warrant or by entering a
plea and participating in trial. (People
v. Guillermo, 291 SCRA 761 [1998])
What is the remedy available as
against the items seized by virtue
of an illegal or void warrant?
The following are the remedies
available in relation to the items that
were seized by virtue of an illegal or
void search warrant.
1) Motion to suppress illegally
obtained or seized evidence.
2) Replevin
3) Petition for Certiorari
*Note: Motion to suppress illegally
obtained or seized evidence will
prevent the presentation of these
pieces of evidence before the court.
Replevin is a remedy to regain
or take possession over personal
properties.
Petition for Certiorari under Rule
65 is available only in the instance of
grave abuse of discretion amounting
to lack or excess of jurisdiction. Again,
what is assailed is the validity of the
search warrant, and nothing else.
Where must one file his motion to
quash a search warrant or to
suppress evidence? (Rule 126,
Section 14)
A motion to quash a search
warrant and/or to suppress evidence
obtained by virtue of the warrant may
be filed and acted upon only by the
court where the action has been
instituted.
If no criminal action has been
instituted the motion may be filed in
and resolved by the court that issued
the search warrant. However, if such
court failed to resolve the motion and
a criminal case is subsequently filed in
another court, the motion shall be
resolved by the latter court.
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Otherwise stated, the preceding

question may be answered this
way.
The motion to quash a search
warrant or to suppress evidence may
be filed as follows:
a) In
the
court
where
the
criminal case has been filed.
*This presupposes that a criminal
case has been filed. It also
contemplates a situation where
the court that issued the search
warrant and the court where the
information was filed are different.
b) If no case has yet been filed,
the motion is filed with the
court that issued the search
warrant.
c) But if the motion to quash a
search warrant filed with a
court that issued the search
warrant has not yet been
resolved, and subsequently, a
criminal case has been filed,
the court where the criminal
case has been filed will
resolve the motion.
Case: A search warrant was
obtained leading to search and
seizure of some items under Xs
custody. X filed a motion to quash
the search warrant, which was
subsequently denied. May X still
file a motion to suppress illegally
obtained evidence?
No, X may no longer file a
motion to suppress illegally obtained
evidence. It will simply be a rehash of
the issues in the earlier filed motion to
quash the warrant. In order to resolve
Xs motion to suppress, the court will
dwell once more on the issue of
legality of the search, which has
already been duly tackled in denying
the motion to quash.
What then is the remedy of an
accused whose motion to quash
the search warrant has been
denied?
It depends. It is either a petition
for certiorari under Rule 65 or an
ordinary appeal. A petition for
certiorari is the remedy when the
application for a search warrant is filed
incidental to a criminal action, or in

anticipation of a criminal action. In this

case, the denial of the motion to
quash the search warrant is merely an
interlocutory order, which cannot be
appealed. Appeal is the remedy when
the application for a search warrant is
filed independently from/of a criminal
action. In such instance, the denial of
the motion to quash is a final order,
which is the proper subject of an
appeal. (Worldwide Web Corporation
et al. v. People of the Philippines et al.,
G.R. No. 161106, Jan. 13, 2014)
When is an application for a
search warrant filed incidental to
a criminal action? When is it filed
independently from/of a criminal
action?
An
application
for
search
warrant may be filed as an incident in
a main criminal case already filed in
court. Or, such an application may be
filed in court in anticipation of one yet
to be filed (here, the application for
search warrant is instituted as a
principal proceeding prior to the filing
of the criminal action). (Wordlwide
Web Corporation et al. v. People.
Supra)
If the application is filed not
within the circumstances mentioned
above, it is said to be independent
from/of
a
criminal
action.
The
application is independent from/of a
criminal action, if it is not incidental
thereto. (by analogy. Hehe)
2014 Bar Essay Type Question in
Remedial Law. - A search warrant
was issued for the purpose of
looking for unlicensed firearms in
the house of Ass-asin, a notorious
gun for hire. When the police
served the warrant, they also
sought the assistance of the
barangay
tanods
who
were
assigned to look at other portions
of the premises around the house.
In an Nipa hut, thirty (30) meters
away from the house of Ass-asin,
a baranggay tanod came upon a
kilo
of
marijuana
that
was
wrapped in news print. Ass-asin
objected to the introduction of
such evidence claiming that it was
illegally seized. Is the objection
valid? (This is originally an essay
type question but suppose it is
converted into an MCQ with the
72

following choices, how would you

answer it?)
a. No, the search was done in plain
view.
b. No, the search was done
pursuant to a validly issued
warrant.
c. No,
the
search
warrant
authorizes
the
search
for
weapons. This includes the
authority to search to open
closets, drawers, chests and
containers
in
which
the
weapons might be found. The
structures annexed to the place
described to be searched may
also be validly searched.
d. Yes, the search warrant was for
the house, and not the nipa hut.
The correct answer is letter D. Where
the warrant is unambiguous and
limited only to a particular place like a
store described in the warrant, the
search does not extend to the
apartment units located at the back of
the store even if the sketch submitted
to the judge include the apartments. It
is neither fair nor licit to allow the
officers to search a place not
described in the warrant because the
place not described is what the
officers had in mind.
*In other words, the place described in
the warrant is controlling.
Letter A is not applicable. A search in
plain view needs a lawful warrantless
arrest.
Letter B is irrelevant.
Letter C is incorrect. It is true that a
search warrant for weapons authorizes
the searching party to open closets,
drawers, chests and containers that
may harbor weapons. It is only when
the place described in the warrant is a
land that the structures annexed to it
may be validly searched. At any rate,
letter c may not be the answer since
the warrant is only for the house, and
not the nipa hut.
*Under the facts of the case, there
may also be another reason why Assasins objection may be sustained.
While the problem dwelt on the issue
of the place described in the warrant,
it never mentioned anything about
compliance with the two witness rule.

So if I were to answer the above

question in an essay form, I will
do it this way.
Yes, Ass-asins objection is valid.
Foremost, the search warrant is for the
house, and not the nipa hut. The place
described in the warrant is controlling,
and the search party does not have
any authority to search for places not
included in it. Further, under the facts
of the case, there was no compliance
with the two-witness rule.
PROVISIONAL REMEDIES (RULE
127)
Are provisional remedies available
in criminal cases?
Yes, the provisional remedies in
civil actions, insofar as they are
applicable, may be availed of in
connection with the civil action
deemed instituted with the criminal
action.
*Note: To avail of a provisional remedy
in a criminal action, it must be one
with a corresponding civil liability. If
there is civil liability, the civil action
must be one arising from the offense
charged and which action must be one
arising from the action.
What then are these provisional
remedies?
The following are the provisional
remedies available in a criminal
action.
a)
b)
c)
d)
e)

Preliminary attachment
Preliminary injunction
Receivership
Replevin
Support Pendent elite

The reference to provisional

remedies in Rule 127 is made in
general terms.
When is preliminary attachment
available?
When the civil action is properly
instituted in the criminal action as
provided in Rule 111, the offended
party may have the property of the
accused attached as security for the
satisfaction of any judgment that may
be recovered from the accused in the
following cases:

73

a) When the accused is about to

abscond from the Philippines;
b) When the criminal action is
based on a claim for money or
property
embezzled
or
fraudulently
misapplied
or
converted to the use of the
accused who is a public officer,
officer
of
a
corporation,
attorney, factor, broker, agent
or clerk, in the course of his
employment as such, or by any
other person in a fiduciary
capacity, or for a wilful violation
of a duty;
c) When
the
accused
has
concealed,
removed,
or
disposed of his property, or is
about to do so; and
d) When the accused resides
outside the Philippines.
May an Accused avail of the Writs
of Preliminary or Final Injunction,
or Prohibition to restrain the
criminal action from proceeding?
As a general rule, courts will not
issue writs of prohibition or injunction,
preliminary or final, to enjoin or
restrain criminal prosecution.
However, there are exceptions.
In these instances, prohibition or
injunction may be availed of to
restrain the criminal action from
proceeding. The exceptions are the
following.
1)
When the injunction is
necessary
to
afford
adequate
protection to the constitutional rights
of the accused;
2) When it is necessary for the
orderly administration of justice or to
avoid oppression or multiplicity of
actions;
1) When there is a prejudicial
question which is sub judice;
4) When the acts of the officer
are without or in excess of authority;
5)
When the prosecution is
under an invalid law, ordinance or
regulation;
1) When double jeopardy is
clearly apparent;
2) When the court has no
jurisdiction over the offense;
3) When it is a case of
persecution rather than prosecution;

4) When
the
charges
are
manifestly false and motivated by the
lust for vengeance;
5) When there is clearly no
prima facie case against the accused
and a motion to quash on that ground
has been denied. (Borlongan Jr. v.
Pena, et al. G.R. No. 143591, Nov. 23,
2007).

74