Provisional dismissal of a criminal case

Image source: samadamolaw.com

The Rules of Court allow the courts to dismiss a criminal case provisionally if it is with the express consent of the accused and with notice to the offended party.

By provisional dismissal, it literally means that the dismissal of the case is merely temporary.

Express consent of the accused

For the courts to provisionally dismiss a criminal case, the accused has to give his express consent.

How express consent given

Express consent to a provisional dismissal is given either viva voce (orally) or in writing.

It is a positive, direct, unequivocal consent which requires no inference or implication to supply its meaning.

Instances when express consent deemed given

For instance, the express consent of the accused is deemed given if he files a motion for provisional dismissal of the case.

It is also deemed given if he writes No objection or With my conformity on the motion of a prosecutor for provisional dismissal.

Inaction or silence of the accused

But the mere inaction or silence of the accused to a motion for provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.

Why express consent needed 

The express consent of the accused is of course needed to bar him from later asserting that the revival of the case will place him in double jeopardy for the same offense or an offense necessarily included in it.

Notice to the offended party

Notice to the offended party of the motion for provisional dismissal of a criminal case is also needed for the courts to dismiss it provisionally.

Remember that in crimes involving private interests, the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for provisional dismissal of the case.

Service to public or private prosecutor

Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing.

Proof of service

The proof of such service must be shown during the hearing on the motion. Otherwise, the requirement will become illusory.

Why notice to the offended party needed

Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds.

Provisionally dismissed criminal case may be revived

Since provisional dismissal of a criminal case literally means that the dismissal of the case is only temporary, it follows then that it can be revived at some future time.

How provisionally dismissed criminal case revived

The State may revive it either by:

(a) Refiling of the Information; or,

(b) Filing of a new Information for the same offense or an offense necessarily included in it.

In both ways, no new preliminary investigation is needed.

When new preliminary investigation needed

But a new preliminary investigation is needed before the refiling of the Information or the filing of a new Information in the following cases:

(a) If the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged;

(b) If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or an offense necessarily included in it;

(c) If under a new criminal complaint, the original charge has been upgraded; or,

(d) If under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal.

Time-bar

But even if a criminal case dismissed provisionally with the express consent of the accused and with notice to the offended party may be revived at some future time, its revival has to be made within the time-bar.

In particular, if the case involves an offense punishable by imprisonment of less than or exactly six (6) years, or a fine of any amount, or both, its revival has to be made within one (1) year.

If it involves an offense punishable by imprisonment of more than six (6) years, its revival has to be made within two (2) years.

If the State fails to revive it within the one or two-year time-bar, the dismissal of the case then automatically becomes permanent.

Such permanent dismissal amounts to an adjudication of the case on the merits.

Motion to revive the case vs. Court order reviving the case

But the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one or two-year time-bar is unsustainable.

Such interpretation is not found in the Rules of Court.

To permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply.

Remember that most if not all of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions.

They could not as a consequence be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time.

It is also possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.

Conditions for the time-bar to apply 

For the time-bar to apply, the following conditions, which are also the essential requisites for the provisional dismissal of a criminal case, must of course be met:

(a) The prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal;

(b) The offended party is notified of the motion for a provisional dismissal of the case;

(c) The court issues an order granting the motion and dismissing the case provisionally; and,

(d) The public prosecutor is served with a copy of the order of provisional dismissal of the case.

Reckoning period of the time-bar

The one or two-year time-bar is reckoned from the service of the order of provisional dismissal on the public prosecutor who has control of the prosecution.

The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order.

If the offended party is represented by a private counsel, it is reckoned from the time the counsel was actually notified of the order.

When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his given address.

[References: Section 8, Rule 117 of the Rules of Court, People of the Philippines vs. Dr. Claro Robles, G.R. No. L-12761, June 29, 1959, Arnold Vegafria vs. Judge Catalino Castañeda, Jr. et. al., G.R. No. 106522, October 23, 1992, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R. No. 149453, May 28, 2002, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, March 25, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 1, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 29, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, October 7, 2003, Ariel M. Los Baos, et. al. vs. Joel R. Pedro, G.R. No. 173588, April 22, 2009, Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial), William Co vs. New Prosperity Plastic Products, G.R. No. 183994, June 30, 2014, Atty. Segundo B. Bonsubre, Jr. vs. Erwin Yerro, et. al., G.R. No. 205952, February 11, 2015]

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Are we exempted from criminal liability if we are over 70?

Photo courtesy of commons.wikimedia.org
Photo courtesy of commons.wikimedia.org

Back in August 2016, President Rodrigo Duterte said he can not be jailed because he is over 70 years old.

Based on the article titled, “Rody to critics: I’m over 70, I can’t be jailed,” he made such controversial statement while delivering a speech during his visit to the 3rd Infantry Division of the Philippine Army in Camp Gen. Macario Peralta Jr., Jamindan, Capiz.

Bearing the date August 7, 2016, I came across and read that article on the Internet.

In saying so, it seems President Duterte would like all of us to believe that we are exempted from criminal liability if we are over 70.

But is that really the case?

Are we really exempted from criminal liability if we are over 70?

The answer is NO.

Even if we are already over 70, we are not exempted from criminal liability by law.

Consequently, we will be put in jail, or will be required to pay a fine, or both, as the case may be, if convicted of a crime.

If at all, what it does is it serves only as a mitigating circumstance.

This means it only reduces the penalty for the crime committed.

[References: sg.news.yahoo.com, Articles 13 (2), 47, and 83 of the Revised Penal Code of the Philippines]

Negative paraffin test not conclusive

Photo courtesy of mediavisioninteractive.com
Photo courtesy of mediavisioninteractive.com

Let us say you were accused of committing the crime of murder for shooting someone to death.

Despite the glaring pieces of evidence pointing to your guilt, you still claimed you are innocent of such crime.

In your desire to get an acquittal, you raised the defense that you never fired a gun at the time of the untoward incident.

To prove your defense, you presented the result of your paraffin test, which yielded negative.

But even with the negative paraffin test result, the trial court still convicted you.

And so you wondered why you never got an acquittal despite the result of your paraffin test.

Negative paraffin test not conclusive

This brings us now to the question on whether negative paraffin test results conclusively show that a person did not fire a gun.

The Supreme Court in People of the Philippines vs. Barangay Captain Tony Tomas, Sr., et. al. gave the answer to this question.

Speaking through Justice Presbitero J. Velasco, Jr., the Court said, “Negative findings of the paraffin test do not conclusively show that a person did not fire a gun.”

It even added that “a paraffin test has been held to be highly unreliable.”

The reason for this, as the Court explained, is “there are many ways, either deliberately or accidentally, that the residue of gunpowder nitrates of a person who fired a handgun can be removed.”

[References: People of the Philippines vs. Barangay Captain Tony Tomas, Sr., et. al. (G.R. No. 192251, February 16, 2011)/See also: Romeo Ilisan y Piabol vs. People of the Philippines (G.R. No. 179487, November 15, 2010), The People of the Philippines vs. Rodolfo Manalo y Cabisuelas (G.R. Nos. 96123-24, March 8, 1993), and The People of the Philippines vs. Noli Pagal y Lamqui, et. al. (G.R. Nos. 112626-21, May 14, 1997)]

Who can issue a BPO?

By now, I assume you are already aware of the term BPO. But for those who are still unaware of it, BPO literally stands for “Barangay Protection Order.”

In particular, a BPO refers to the protection order issued by the barangay, ordering the perpetrator to desist from committing certain acts of violence against the family or household members, particularly women and their children, under RA 9262.

RA 9262 or Republic Act No. 9262 is known in common as the “Anti-Violence Against Women and Their Children Act of 2004.”

Issued free of charge, a BPO is enforceable within the barangay that issued it. And it is effective for a period of 15 days.

But who can issue a BPO?

RA 9262 gives us the answer to this question. And it says in essence that it is the Punong Barangay and any of the Barangay Kagawad who can issue it.

When it comes to a Barangay Kagawad, however, you need to remember that he can only issue a BPO if the Punong Barangay is unavailable.

You need to remember too that if issued by a Barangay Kagawad, the BPO must be accompanied by his attestation to the effect that the Punong Barangay was unavailable at the time of its issuance.

Of course, if issued by the Punong Barangay, no such attestation is required.

[References: RA 9262, also known as the “Anti-Violence Against Women and Their Children Act of 2004,” the Implementing Rules and Regulations of RA 9262, and the Rule on Violence Against Women and Their Children (A.M. No. 04-10-11-SC, October 19, 2004)]

On drunk driving as a crime in the Philippines

I had an erroneous impression on when drunk driving became a crime in the Philippines.

I honestly thought it became a crime only after Republic Act No. 10586, otherwise known as the “Anti-Drunk and Drugged Driving Act of 2013,” was signed into law.

In fact, when I wrote about RA 10586 some time ago in this blog, I made it clear that it became a crime only when this law came into existence.

But, recently, I realized I made a mistake. Why? Because I later found out that it was already a crime in the Philippines even before RA 10586 was signed into law.

Approved in 1964, RA 4136, otherwise known as the “Land Transportation and Traffic Code,” contains provisions on drunk driving as a crime.

It provides that no person shall drive a motor vehicle while under the influence of liquor.

And it imposes on the offender the penalties of a fine of not less than one thousand pesos or imprisonment of not less than three nor more than six months, or both, at the discretion of the court.

In comparison with the penalties for drunk driving under RA 10586, the penalties under RA 4136 are obviously much lower.

But why am I writing about this topic again? Because, as I have stated, I made a mistake.

And, as a responsible law blogger, I am fully aware that I am duty bound to rectify it. And, for me, this is the best and only way to do it.

When I started this blog some time ago, my objective was, and will always be, to inform and not to misinform.

And this evidently requires me to provide readers with the right, if not accurate, legal information all the time.

[Author’s Note: This was first posted on the Internet on Monday, December 9, 2013]

Driving under the influence of alcohol is now a crime in the Philippines

Driving under the influence of alcohol is now a crime in the Philippines.

This was after President Benigno S. Aquino III signed into law Republic Act No. 10586 (RA 10586), otherwise known as the “Anti-Drunk and Drugged Driving Act of 2013.”

RA 10586 defines “driving under the influence of alcohol” as the act of operating a motor vehicle while the driver’s blood alcohol concentration level has, after being subjected to a breath analyzer test, reached the level of intoxication, as established jointly by the Department of Health, the National Police Commission and the Department of Transportation and Communications.

It also defines “alcohol” as alcoholic beverages classified into beer, wine and distilled spirits, the consumption of which produces intoxication.

RA 10586 imposes on the offender the penalties of imprisonment, payment of a fine, confiscation, suspension and even perpetual revocation of his driver’s license upon conviction.

[Author’s Note: This was first posted on the Internet on June 5, 2013]

Perjury

Perjury is the willful and corrupt assertion of a falsehood under oath or affirmation administered by authority of law on a material matter.

Perjury as a Crime

As a crime, perjury is penalized under Article 183 of the Revised Penal Code, which provides:

“Art. 183. False testimony in other cases and perjury in solemn affirmation. — The penalty of arresto mayor in its maximum period to prision correccional in its minimum period shall be imposed upon any person, who knowingly makes untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon any material matter before a competent person authorized to administer an oath in cases in which the law so requires.

“Any person who, in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.”

Essential Elements of the Crime of Perjury

Gathered from the said provision, the following are the essential elements of the crime of perjury:

(a)     The accused made a statement under oath or executed an affidavit upon a material matter.

(b)     The statement or affidavit was made before a competent officer, authorized to receive and administer oath.

(c)     In the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.

(d)     The sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.

First Element of Perjury

The first element of perjury requires that the accused made a statement under oath or executed an affidavit upon a material matter.

In prosecutions for perjury, a matter is material if it is the main fact which was the subject of the inquiry, or any circumstance which tends to prove that fact.

For instance, Section 5, Rule 7 of the 1997 Rules of Civil Procedure, as amended, contains the requirement for a Certificate against Forum Shopping.

The Certificate against Forum Shopping can be made either by a statement under oath in the complaint or initiatory pleading asserting a claim or relief; it may also be in a sworn certification annexed to the complaint or initiatory pleading.

In both instances, the affiant is required to execute a statement under oath before a duly commissioned notary public or any competent person authorized to administer oath that: (a) he or she has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other action or claim is pending therein;  (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within five days therefrom to the court wherein his or her aforesaid complaint or initiatory pleading has been filed.

Thus, in relation to the crime of perjury, the material matter in a Certificate against Forum Shopping is the truth of the required declarations, which is designed to guard against litigants pursuing simultaneous remedies in different fora.

Second Element of Perjury

The second element of perjury requires that the statement or affidavit was made before a competent officer, authorized to receive and administer oath.

The phrase “competent person authorized to administer an oath” means a person who has a right to inquire into the questions presented to him upon matters under his jurisdiction.

A lawyer, who is also a duly commissioned notary public, is a competent person authorized to administer an oath.

Not all lawyers, however, are notaries public. But all notaries public are lawyers.

Lawyers become notaries public only when the appropriate Regional Trial Court Executive Judge acts on their petition and issues in their favor the corresponding notarial commissions.

Thus, a person who executes an affidavit containing a falsity upon a material matter before a lawyer, who is also a duly commissioned notary public, may be held liable for perjury.

Third Element of Perjury

The third element of perjury requires that, in the statement or affidavit, the accused made a willful and deliberate assertion of a falsehood.

Thus, a mere assertion of a false objective fact or a falsehood is not enough. The assertion must be deliberate and willful.

“Willfully” means “intentionally,” with evil intent and legal malice, with consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact.  It is equivalent to “knowingly.”

Perjury cannot be willful where the oath is according to belief or conviction as to its truth.  Bona fide belief in the truth of a statement is an adequate defense.

“Deliberately” implies “meditated,” as distinguished from “inadvertent acts.”  It must appear that the accused knows his statement to be false or is consciously ignorant of its truth.

Perjury being a felony by dolo, there must be malice on the part of the accused.

A felony is committed by dolo when the act is performed with deliberate intent.

Good faith or lack of malice is a valid defense vis-a-vis the allegation of deliberate assertion of falsehood in perjury cases.

The basis of the third element of perjury is the phrase “knowingly making untruthful statements” in Article 183 of the Revised Penal Code.

The word “knowingly” suggests that the assertion of falsehood must be willful and deliberate.

Hence, there is no perjury through negligence or imprudence.

Fourth Element of Perjury

The fourth element of perjury requires that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.

For instance, in consonance with Section 1 (a), Rule 110 of the Revised Rules of Criminal Procedure, for offenses where a preliminary investigation is required, a criminal action is instituted by filing a complaint with the proper officer, such as a public prosecutor, for the purpose of conducting the requisite preliminary investigation.

That complaint, in turn, must be made under oath, in accordance with Section 3, Rule 110 of the Revised Rules of Criminal Procedure, which provides:

“Sec. 3. Complaint defined. – A 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 the law violated.”

Thus, a person who executes a criminal complaint containing a falsity upon a material matter may be held liable for perjury.

However, in an unpublished decision (People v. Angangco, G.R. No. L-47693, October 12, 1943) it was held that the word “requires” in the phrase “in cases in which the law so requires” (in Article 183 of the Revised Penal Code) may be given the meaning of “authorizes.” Hence, the fourth element may be read “that the sworn statement (or affidavit) containing the falsity is authorized by law.”

Thus, even if there is no law, requiring the statement to be made under oath, as long as it is made for a legal purpose, it is sufficient.

Policy of the Law on Perjury

Of great importance is the policy of the law on perjury, which the Supreme Court laid down in People v. Cainglet (G.R. Nos. L-21493-94, April 29, 1966).

In that case, the Supreme Court emphatically stressed that every interest of public policy demands that perjury be not shielded by artificial refinements and narrow technicalities. For perjury strikes at the administration of the laws. It is the policy of the law that judicial proceedings and judgments be fair and free from fraud, and that litigants and parties be encouraged to tell the truth, and that they be punished if they do not.

[References: Antonio B. Monfort III, et. al. v. Ma. Antonia M. Salvatierra, et. al., G.R. No. 168301, March 5, 2007, Article 183 of the Revised Penal Code, Section 5, Rule 7 of the 1997 Rules of Civil Procedure, Union Bank of the Philippines and Desi Tomas v. People of the Philippines, G.R. No. 192565, February 28, 2012, Celsa P. Acuña v. Deputy Ombudsman for Luzon, et. al., G.R. No. 144692, January 31, 2005, Page 275 of the law book titled, The Revised Penal Code, Criminal Law, Book Two (Articles 114-367), Fourteenth Edition (Revised 1998) by Luis B. Reyes, citing U.S. v. Go Chanco, 23 Phil. 641, Philip S. Yu v. Hernan G. Lim, G.R. No. 182291, September 22, 2010, Article 3 of the Revised Penal Code, Page 276 of the law book titled, The Revised Penal Code, Criminal Law, Book Two (Articles 114-367), Fourteenth Edition (Revised 1998) by Luis B. Reyes, Section 1 (a), Rule 110 of the Revised Rules of Criminal Procedure, Section 3, Rule 110 of the Revised Rules of Criminal Procedure, Page 277 of the law book titled, The Revised Penal Code, Criminal Law, Book Two (Articles 114-367), Fourteenth Edition (Revised 1998) by Luis B. Reyes, People v. Angangco, G.R. No. L-47693, October 12, 1943, People v. Cainglet (G.R. Nos. L-21493-94, April 29, 1966), and Alfonso C. Choa v. People of the Philippines, et. al., G.R. No. 142011, March 14, 2003, citing People v. Cainglet, G.R. Nos. L-21493-94, April 29, 1966]