Provisional dismissal of a criminal case

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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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Declaratory Relief

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One of the legal remedies you will find in the Rules of Court is the special civil action for declaratory relief.

In particular, it is found in Rule 63 of the Rules and discussed exhaustively in several cases decided by the Supreme Court.

Declaratory relief

What then is a declaratory relief? In order to have a clear grasp of what this action is all about, we need to know in general the following: (1) the subject matter of the controversy, (2) the person who may file it, (3) the court that has jurisdiction over it, (4) the period when it should be filed, (5) the reliefs sought when filed, and (6) its essential requisites.

Subject matter of the controversy

What must be the subject matter of the controversy in an action for declaratory relief? It must be any of the following: (a) deed, (b) will, (c) contract or (d) other written instrument, (e) statute, (f) executive order or regulation, (g) ordinance, or (h) any other governmental regulation.

Person who may file it

Who may file an action for declaratory relief? It may be filed by any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation.

Court that has jurisdiction over it

Which court has jurisdiction over an action for declaratory relief? It is the Regional Trial Court that has jurisdiction over it.

Period when it should be filed

When should an action for declaratory relief be filed in court? It should be filed before an act deemed as breach or violation of any of the subject matter stated above is committed.

Reliefs sought when filed

What reliefs do parties seek to obtain when an action for declaratory relief is filed? The reliefs include asking the court to interpret or determine the validity of any of the subject matter stated above and to declare their rights or duties under the subject matter in question.

Essential requisites

Of course, we also need to know the essential requisites of an action for declaratory relief, which are as follows:

First, the subject matter of the controversy must be a deed, will, contract or other written instrument, statute, executive order or regulation, ordinance, or any other governmental regulation;

Second, the terms of the subject matter in question and/or its validity are doubtful and require judicial interpretation and/or determination;

Third, there must have been no breach or violation of the subject matter in question;

Fourth, there must be a justiciable controversy;

Fifth, the controversy must be between persons whose interests are adverse;

Sixth, the party seeking declaratory relief must have a legal interest in the controversy;

Seventh, the issue involved must be ripe for judicial determination; and,

Eight, adequate relief is not available through other means or other forms of action or proceeding.

Why do we also need to know these requisites? It is because, even if only one is lacking, the court will deny the action.

[References: Rule 63 of the Rules of Court, Brother Mariano “Mike” Z. Velarde vs. Social Justice Society, G.R. No. 159357, April 28, 2004, Vivencio V. Jumamil vs. Jose J. Cafe, et. al., G.R. No. 144570, September 21, 2005, Carmen Danao Malana, et. al. vs. Benigno Tappa, et. al., G.R. No. 181303, September 17, 2009, Honesto V. Ferrer, Jr. et. al. vs. Mayor Sulpicio S. Roco, et. al., G.R. 174129, July 5, 2010, Commissioner of Customs, et. al. vs. Hypermix Feeds Corporation, G.R. No. 179579, February 1, 2012, Jerbert B. Galicto vs. H.E. President Benigno Simeon C. Aquino III, et. al., G.R. No. 193978, February 28, 2012, Republic of the Philippines, represented by the Executive Secretary, et. al. vs. Herminio Harry Roque, et. al., G.R. No. 202603, September 24, 2013, Crisostomo B. Aquino vs. Municipality of Aklan, et. al., G.R. 211356, September 29, 2014, City of Lapu-Lapu vs. Philippine Economic Zone Authority, G.R. No. 184203, November 26, 2014/Province of Bataan, et. al. vs. Philippine Economic Zone Authority, G.R. No. 187583, November 26, 2014, and Secretary of Finance, et. al. vs. Representative Carmelo F. Lazatin, et. al., G.R. No. 210588, November 29, 2016]

 

On arraignment and plea: What happens when the accused refuses to enter a plea?

A person accused of a crime or offense also has rights. Among these is the right to be informed of the nature and cause of the accusation against him.

In criminal proceedings, one of the stages where this right is carried out is at the time of the arraignment of the accused.

The arraignment is 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 a language or dialect known to him, and asking him whether he pleads “guilty” or “not guilty.”

But if the accused refuses to enter a plea, the court cannot compel him to enter any. And this is because of his right to remain silent.

Instead, the court, in order to prevent a mockery of the criminal justice system, will enter a plea of “not guilty” for him, which is mandatory.

But in no case can the court enter a plea of “guilty” for him. And this is because of his right to be presumed innocent until the contrary is proved beyond reasonable doubt.

[References: Section 14, Article III (Bill of Rights) of the 1987 Philippine Constitution, Rule 115 (Rights of the Accused) of the Revised Rules on Criminal Procedure, Rule 116 (Arraignment and Plea) of the Revised Rules on Criminal Procedure, Pages 385-400 (Rule 115 – Rights of Accused), Remedial Law Compendium (Volume II – Ninth Revised Edition) by Florenz D. Regalado, Pages 257-291 (Rule 115-Rights of the Accused), The Revised Rules on Criminal Procedure (2003 Edition) by Dean Ernesto L. Pineda, Pages 292-330 (Rule 116-Arraignment and Plea), The Revised Rules on Criminal Procedure (2003 Edition) by Dean Ernesto L. Pineda, Pages 401-412 (Rule 116 – Arraignment and Plea), Remedial Law Compendium (Volume II – Ninth Revised Edition) by Florenz D. Regalado, and Pages 86-92 (Chapter 10 – Arraignment and Plea), Basic Criminal Procedure (2003 Edition) by Antonio R. Bautista]

 

What is a subpoena?

The live media coverage of the impeachment trial of Chief Justice Renato C. Corona has given everyone the opportunity to witness the proceedings even without having to go to the Senate acting as an impeachment court.

As we watch the trial, we see how the prosecution and the defense team argue and defend, respectively, their cases, examine witnesses, and make manifestations and motions.

And the prosecution team would, time and again, request the impeachment court, through its presiding officer, to issue a subpoena. This is done by way of a motion, which, in turn, may either be in oral or written form.

If done orally, the movant (referring to someone who is making a motion or request) would, in open court, simply say,  “Your Honor, we move for the issuance of a subpoena …” The presiding officer, if he decides to grant the same, would then respond and say, “Issue a subpoena to…”.

But what is a subpoena? Rule 21 of the Rules of Court provides an answer to this question.

A subpoena, in consonance with Section 1, Rule 21 of the Rules of Court, is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. This kind of subpoena is called a subpoena ad testificandum.

And it is called a subpoena duces tecum if it requires that person to bring with him any books, documents, or other things under his control.

In case of failure of a witness to attend, the court or judge issuing the subpoena, upon proof of its service and of the failure of the witness, may issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him before the court or officer where his attendance is required.

The cost of such warrant and seizure of such witness shall be paid by the witness if the court issuing it shall determine that his failure to answer the subpoena was willful and without just excuse.

And the failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued.

If the subpoena was not issued by a court, the disobedience shall be punished in accordance with the applicable law or Rule.

A person found liable for contempt for disobeying a subpoena may be punished by a fine or imprisonment, or both.

[References: Rule 21 of the Rules of Court, Section 1, Rule 21 of the Rules of Court, Section 8, Rule 21 of the Rules of Court, Section 9, Rule 21 of the Rules of Court, and Rule 71 of the Rules of Court/Author’s Note: This was first posted on the Internet on January 22, 2012]

 

How can we help end violence against children?

Last year, I wrote an article in this blog titled, “Let us all help end violence against children,” evidently urging everyone to help end such violence.

I wrote it in reaction to the videos I always see on the Internet or on TV, showing parents hurting their children, who, due to their tender age, are unable to defend themselves.

But how can we help end it? If you see someone hurting a child, call his attention right away and ask him to stop. Do it nicely to avoid worsening the situation.

If urgently needed, especially when life is at stake, waste no time and rescue the child. But never use unnecessary force or violence to avoid committing a crime.

Of course, rescuing the child, whether alone or with the help of others, ceases to be an option when it will place you at the risk of bodily harm or will put your life in danger.

In any event, it is always best to report the matter at once to the police or other authorities, such as barangay officials and social workers, and ask for their assistance.

This will give them the opportunity to take immediate action not only to protect and save the child’s life, but also to bring the person responsible to justice.

 

Let us all help end violence against children

Whether on the Internet or on TV, I often see videos of parents hurting their children, who are unable to defend themselves due to their tender age.

And all they can do, while being physically abused, is to simply cry in pain. Worse, some even end up dying due to the fatal injuries they sustained.

As a loving parent, my heart breaks each time I see these videos. I find it hard to understand why there are parents who can afford to hurt their children, instead of just expressing love and care for them.

Of course, we can only speculate on why these parents hurt their children.  And this is precisely because we have no way of knowing what runs through their minds as they inflict harm on them.

But, certainly, no amount of explanation will ever be acceptable to justify hurting anyone, especially the children, much more our very own.

And so let us all help end violence against children, even only for the sake of our own.

[Author’s Note: This was first posted on the Internet on October 20, 2013]