PROVISIONAL DISMISSAL

There is provisional dismissal when a case is dismissed without prejudice to its being refiled or revived. The accused must already been...

There is provisional dismissal when a case is dismissed without prejudice to its being refiled or revived. The accused must already been arraigned and consented to the provisional dismissal.
Where the case was dismissed provisionally with the consent of the accused, he cannot invoke double jeopardy in another prosecution therefore OR where the case was reinstated on a motion for reconsideration by the prosecution.

Grounds for provisional dismissal
Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3. The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain. (LOS BAÑOS v. PEDRO, G.R. No. 173588 April 22, 2009)

Time Bar Rule
It provides that the provisional dismissal of a case shall become permanent without the case having been revived in the following periods:
a. One (1) year after issuance of the order without the case having been revived for offenses punishable: [Rule 117, Sec. 8]
1. By imprisonment not exceeding 6 yrs
2. By fine of any amount
3. By both
b. Two (2) years after issuance of the order without the case having been revived for offenses punishable by imprisonment of more than 6 yrs.

Conditions sine qua non to the application of the time-bar rule:
a. The prosecution with the express conformity of the accused OR the accused moves for the provisional (sin perjucio) dismissal of the case; OR both the prosecution and the accused move for a provisional dismissal of the case;
b. The offended party is notified of the motion for the provisional dismissal of the case
c. The court issues an order granting the motion and dismissing the case provisionally;
d. The public prosecutor is served with a copy of the order of provisional dismissal of the case.

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 necessarily included therein.
Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal.
Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning.

To revive the case:
1. Refiling of the information
2. Filing of a new information for the same offense or one necessarily included in the original offense charged.There would be no need of a new preliminary investigation.

However, in a case wherein after the provisional dismissal of a criminal case, 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, a new preliminary investigation must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal.
The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. x x x It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an injustice of hardship to the State and adversely affect the administration of justice in general and of criminal laws in particular.

It is almost a universal experience that the accused welcomes delay as it usually operates in his favor, especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which dominant cases have been known to expire.
The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult. The accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.
On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the presumption of innocence. He may also lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the fairness of the entire criminal justice system.

The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only. (PEOPLE VS. LACSON, G.R. No. 149453 April 1, 2003 )

The author takes no responsibility for the validity, correctness and result of this work. The information provided is not a legal advice and it should not be used  as a substitute for a competent legal advice from a licensed lawyer. See the disclaimer

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