Laws & Jurisprudence
PROVISIONAL DISMISSAL
8:33 PM
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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