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San Beda College of Law

135

MEMORY AID

IN

REMEDIAL LAW

CRIMINAL PROCEDURE
Criminal Jurisdiction power of the State to try and punish a person for a violation of its penal laws. REQUISITES FOR A VALID E ERCISE OF CRIMINAL JURISDICTION! 1. The offense, by virtue of the imposable penalty OR its nature, is one which the court is by law authorized to take co nizance of, !"urisdiction over the S#$%&'T ()TT&R*. +. The offense must have been committed within its territorial "urisdiction, !"urisdiction over the T&RR,TOR-*. .. The person char ed with the offense must have been brou ht to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court, !"urisdiction over the /&RSO0 O1 T2& )''#S&3*. JURISDICTION OVER T"E SU#JECT MATTER
3erived from the law. ,t can never be ac4uired solely by consent of the accused. Ob"ection that the court has no "urisdiction of the sub"ect matter may be made at any sta e of the proceedin , and the ri ht to make such ob"ection is never waived.

+. 3etermined by the law in force at the time of the institution of the criminal action. O0'& 6&ST&3, ,T ')00OT $& 7,T23R)70 $-8 a* subse4uent valid amendment of the information9 or b* a subse4uent statutory amendment of the rules of "urisdiction, #0:&SS the amendatory law provides otherwise. RULE $$% PROSECUTION OF OFFENSES S&ction $' actions' Institution o( criminal

JURISDICTION OVER T"E PERSON OF T"E ACCUSED


(ay be ac4uired by consent of the accused or by waiver of ob"ections. ,f he fails to make his ob"ection in time, he will be deemed to have waived it.

For o((&ns&s )*&r& a +r&liminar, in-&sti.ation is r&/uir&d ; by filin the complaint with the proper officer for the purpose of conductin the re4uisite preliminary investi ation. /reliminary investi ation is R&<#,R&3 for offenses where the penalty prescribed by law is at least = years, + months and 1day without re ard to fine !Rule 11+, Sec. 1 /ar.+*. For all ot*&r o((&ns&s ; by filin the complaint or information directly with the (unicipal Trial 'ourts and (unicipal 'ircuit Trial 'ourts, or the complaint with the office of the prosecutor. DOES NOT APPL0 to offenses which are sub"ect to summary procedure. E((&ct o( institution o( t*& criminal action! ,t interrupts the runnin of the period of prescription of the offense char ed unless otherwise provided by special laws.

DETERMINATION OF CRIMINAL JURISDICTION! 1. 3etermined by the alle ations in the complaint or information not by the results of proof or by the trial court5s appreciation of the evidence presented.
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


136

MEMORY AID
R&m&di&s o( t*& o((&nd&d +art, i( t*& +ros&cutor r&(us&s to (il& an in(ormation! 1. file an action for mandamus, in case of rave abuse of discretion9 +. lod e a new complaint before the court havin "urisdiction over the offense9 .. take up the matter with the Secretary of %ustice in accordance with the Rev. )dministrative 'ode9 =. institute an administrative char es a ainst the errin prosecutor9 and >. file criminal action a ainst the prosecutor with the correspondin civil action for dama es. Ma, In1unction Issu& to R&strain Criminal Pros&cution2 3ENERAL RULE! 'riminal prosecutions may 0OT be restrained or stayed by in"unction, preliminary or final. The reason bein , public interest re4uires that criminal acts be immediately investi ated and prosecuted for the protection of the society !Domingo vs. Sandiganbayan, 322 SCRA 655*. E CEPTIONS! 1. To afford ade4uate protection to the constitutional ri hts of the accused9 +. 7hen necessary for the orderly administration of "ustice or to avoid oppression or multiplicity of actions9 .. 7hen there is a pre"udicial 4uestion which is sub"udice9 =. 7hen the acts of the officer are without or in e?cess of authority9 >. 7hen the prosecution is under an invalid law, ordinance or re ulation9 @. 7hen double "eopardy is clearly apparent9 A. 7hen the court had no "urisdiction over the offense9 B. 7hen it is a case of persecution rather than prosecution9 C. 7hen the char es are manifestly false and motivated by lust for ven eance9 and 1D. 7hen there is clearly no prima facie case a ainst the accused and a

IN

REMEDIAL LAW

motion to 4uash on that round has been denied. S&ction 4' Form o( t*& com+laint or in(ormation' FORM 1. ,n writin 9 +. ,n the name of the /eople of the /hilippines9 and .. ) ainst all persons who appear to be responsible for the offense involved. S&ction 5' Com+laint d&(in&d' ) Com+laint is8 1. a sworn written statement9 +. char in a person with an offense9 .. subscribed by the offended party, any peace officer or other public officer char ed with the enforcement of the law violated. The complaint mentioned in this section refers to one filed in court for the commencement of a criminal prosecution for violation of a crime, usually co nizable by municipal trial courts as well as to a complaint filed by an offended party in private crimes or those which cannot be prosecuted de officio. REQUISITES OF A COMPLAINT! 1. it must be in writin and under oath9 +. it must be in the name of the /eople of the /hilippines9 .. it must char e a person with an offense9 and =. it must be subscribed by the offended party, by any peace officer or public officer char ed with the enforcement of the law violated. PERSONS 6"O CAN FILE A COMPLAINT 1. Offended party +. )ny peace officer .. Other public officer char ed with the enforcement of the law violated

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


137

MEMORY AID
e?. ,nternal Revenue Officer for violation of the 0,R', custom a ents with respect to violations of the Tariff and 'ustoms 'ode S&ction 7' In(ormation d&(in&d' )n In(ormation is8 1. an accusation in writin 9 +. char in a person with an offense9 .. subscribed by the prosecutor and filed with the court. REQUISITES OF AN INFORMATION 1. it must be in writin 9 +. it must char e a person with an offense9 .. it must be subscribed by the fiscal9 and =. it must be filed in court. COMPLAINT
Subscribed by the offended party, any peace officer or other officer char ed with the enforcement of the law violated it may be filed either in court or in the prosecutor5s office must be made under oath

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REMEDIAL LAW

prosecuted under the direction and control of the prosecutor. ) /R,6)T& /ROS&'#TOR may be authorized to prosecute a criminal action sub"ect to the followin conditions8 1. the public prosecutor has a heavy work schedule, or there is no public prosecutor assi ned in the province or city9 +. the private prosecutor is authorized ,0 7R,T,0F by the Re ional State /rosecutor !RS/*, /rovincial or 'ity /rosecutor9 .. the authority of the private prosecutor must be approved by the court9 =. the private prosecutor shall continue to prosecute the case until the end of the trial unless the authority is withdrawn or otherwise revoked by the RS/, /rovincial or 'ity /rosecutor9 and >. ,n case of the withdrawal or revocation of the authority of the private prosecutor, the same must be approved by court. !(emo 'irc. 0o. +>, )pril +@, +DD+, Re ardin )mendment to Sec. >, Rule 11D* ,n appeals before the ') and the S', it is only the Solicitor Feneral that is authorized to brin and defend actions in behalf of the /eople of the /hilippines !People vs. Nano, 205 SCRA 155*. ,n all cases elevated to the Sandi anbayan and from the Sandi anbayan to the S', the Office of the Ombudsman, throu h its Special /rosecutor shall represent the /eople of the /hilippines, &E'&/T in cases filed pursuant to &.O. 0os. 1, +, 1= and 1=;), issued in 1CB@ !Sec. =, R) B+=C*. PROSECUTION C"ASTIT0 OF CRIMES A3AINST

INFORMATION
Subscribed by the fiscal !indispensable re4uirement*

it is filed with the court need not be under oath

/rosecution in the RT' are always commenced by information, &E'&/T8 1. in certain crimes a ainst chastity !concubina e, adultery, seduction, abduction, acts of lasciviousness*9 and +. defamations imputin any of the aforesaid offenses wherein a sworn written complaint is re4uired in accordance with section > of this Rule. S&ction 8' 6*o must +ros&cut& criminal actions' FULL DISCRETION AND CONTROL OF T"E PROSECUTOR )ll criminal actions commenced by a complaint or information shall be

6"O MA0 PROSECUTE 1. Concubinage and adultery only by the offended spouse who should have the status, capacity, and le al

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


138

MEMORY AID
representation at the time of filin of the complaint, re ardless of a e9 +. Seduction, Abduction and Acts of Lasciviousness prosecuted e?clusively and successively by the followin persons in this order8 a* by the offended woman b* by the parents, randparents or le alG"udicial uardians in that successive order c* by the State in the e?ercise of the ri ht of parens pa riae, when the offended party dies or becomes incapacitated before she could file the complaint and she has no known parents, randparents or uardian. .. ) defamation imputing to a person any of the foregoing crimes of concubina e, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecuted only by the party or parties defamed !)rticle .@D, last par., Revised /enal 'ode*. ,f the offended party is of le al a e )03 does not suffer from physical or mental disability, she alone can file the complaint to the e?clusion of all others. 6"O CAN 3IVE PARDON 1. Concubinage and adultery ; only the offended spouse, not otherwise incapacitated, can validly e?tend the pardon or consent contemplated therein. +. Seduction, abduction, and acts of lasciviousness a* the offended minor, if with sufficient discretion, can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead9 b* the parents, randparents or uardian of the offended minor, in that order, ')00OT e?tend a valid pardon in said crimes 7,T2O#T the conformity of the offended party, even if the latter is a minor9 c* if the offended woman is of a e and not otherwise incapacitated,

IN

REMEDIAL LAW

only she can e?tend a valid pardon. The pardon refers to pardon $&1OR& filin of the criminal complaint in court. /ardon effected after the filin of the complaint in court does 0OT prohibit the continuance of the prosecution of the offense &E'&/T in case of marria e between the offender and the offended party. PARDON -s' CONSENT 'onsent refers to future acts, while pardon refers to past acts of adultery. The importance of this distinction is that consent, in order to absolve the accused from liability, is sufficient even if ranted only to the offendin spouse, whereas pardon must be e?tended to both offenders The S#$S&<#&0T ()RR,)F& between the offended party and the accused e?tin uishes the criminal liability of the latter, to ether with that of the co; principals, accomplices and accessories. E CEPT! 1. where the marria e was invalid or contracted in bad faith in order to escape criminal liability, +. in Hprivate libelI .. in multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned. The )'<#,TT): OR 3&)T2 of one of the accused in the crime of adultery does not bar the prosecution of the other accused !People vs. !opi"o, e al., 35 P#il. $01*. 2O7&6&R, the death of the offended spouse before the filin of the complaint for adultery bars further prosecution, $#T if the offended spouse died after the filin of the correspondin complaint, his death will 0OT prevent the proceedin from continuin to its ultimate conclusion. 3&S,ST)0'& of complainant does not bar criminal prosecution but it operates

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


13

MEMORY AID
as waiver of the ri ht to pursue civil indemnity. S&ction 9' Su((ici&nc, o( com+laint or in(ormation' CONTENTS OF A VALID COMPLAINT OR INFORMATION 1. 0ame of the accused, includin any appellation or nickname )n error in the name of the accused is not reversible as lon as his identity is sufficiently established and this defect is curable at any sta e of the proceedin s as the insertion of the real name of the accused is merely a matter of form. +. The desi nation of the offense .. The acts or omissions complained of as constitutin the offense =. The name of the offended party >. The appro?imate time of the commission of the offense @. The place wherein the offense was committed PURPOSE OF T"E RULE 1. To inform the accused of the nature and cause of accusation a ainst him. +. To notify the defendant of the criminal acts imputed to him so that he can duly prepare his defense. Substantial defect in the information cannot be cured by evidence that would "eopardize the accused5s ri ht to be informed of the true nature of the offense he is bein char ed with S&ction :' Nam& o( t*& accus&d' PURPOSE The manifest intent of the provision is to make a specific identification of the person to whom the commission of an offense is bein imputed. S&ction ;' D&si.nation o( t*& o((&ns&'

IN

REMEDIAL LAW

The information or complaint must state or desi nate the followin whenever possible8 1. The desi nation of the offense iven by the statute. +. The statement of the acts or omissions constitutin the offense, in ordinary, concise and particular words. .. The specific 4ualifyin and a ravatin circumstances must be stated in ordinary and concise lan ua e. The 4ualifyin and a ravatin circumstances cannot be appreciated even if proved #0:&SS alle ed in the information. ,n case of alle ation of a ravatin circumstance of 2)$,T#): 3&:,0<#&0'-, it should not be enerally averred. The information must specify the re4uisite data re ardin 8 1. the commission of the crimes9 +. the last conviction or release9 .. the other previous conviction or release of the accused. ALLE3ATIONS PREVAIL OVER DESI3NATION OF T"E OFFENSE IN T"E INFORMATION ,t is not the desi nation of the offense in the complaint or information that is controllin !People vs. Samillano, 56 SCRA 5%3*9 the facts alle ed therein and not its title determine the nature of the crime !People vs. &agdo'a, %3 P#il. 512*. The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alle ed in the body of the information and its commission is established by evidence !()#a vs. Co)r o* Appeals, 265 SCRA %01*.

:imitation on the rule that an accused may be convicted of a crime which is more serious than that named in the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!"

MEMORY AID
title so lon as the facts alle ed the more serious offense8 )n accused could not be convicted under one act when he is char ed with a violation of another if the chan e from one statute to the other involves8 a* a chan e in the theory of the trial9 b* re4uires of the defendant a different defense9 or c* surprises the accused in any way !+.S. vs. Panlilio, 2, P#il. 603* . S&ction <' Caus& o( t*& accusation' PURPOSE 1. to enable the court to pronounce proper "ud ment9 +. to furnish the accused with such a description of the char e as to enable him to make a defense9 .. as a protection a ainst further prosecution for the same cause. RULE ON NE3ATIVE AVERMENTS 3ENERAL RULE! 7here the statute penalizes enerally the acts therein defined and is intended to apply to all persons indiscriminately, the information is sufficient even if does not alle e that the accused falls within the e?cepted situation, for then the complete definition of the offense is entirely separable from the e?ceptions and can be made without reference to the latter. ,n this case, the e?ception is a matter of defense which the accused has to prove. E CEPTION! 7here the statute alle ed to have been violated applies only to a specific class of persons and to special conditions, the information must alle e facts establishin that the accused falls within the specific class affected and not those affected from the covera e of law. 7here ne ative averment is an essential element of the crime, it must be proved.

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REMEDIAL LAW

PURPOSE To show territorial "urisdiction. S&ction $$' Dat& o( commission o( t*& o((&ns& 3ENERAL RULE! ,t is 0OT re4uired that the complaint or information state with particularity the /:)'& where the crime was committed and the 3)T& of the commission of the crime. E CEPTION! ,f the /:)'&G3)T& of the commission of the offense constitutes an essential element of the offense. S&ction $4' Nam& o( t*& o((&nd&d +art, 3ENERAL RULE! The offended party must be desi nated by name, nickname, any other appellation or by fictitious name. E CEPTION! ,n crimes a ainst property, the description of the property must supplement the alle ation that the owner is unknown. S&ction $5' Du+licit, o( o((&ns&' There is duplicity when the complaint or information char es + or more 3,ST,0'T or 3,11&R&0T offenses. 3ENERAL RULE! ) complaint or information must char e only one offense. E CEPTIONS! 1. 'omple? crimes +. Special 'omple? crimes .. 'ontinuous crimes or delicto continuado =. 'rimes of which another offense is an in redient Should there be duplicity of offense in the information, the accused must move for the 4uashal of the same $&1OR& arrai nment arrai nment, otherwise, he is deemed to have waived the ob"ection and maybe

S&ction $%' Plac& o( commission o( t*& o((&ns&

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!1

MEMORY AID
found uilty of as many offenses as those char ed and proved durin the trial. S&ction' $7' su=stitution' Am&ndm&nt or

IN

REMEDIAL LAW
COMPLAINT

>INDS OF AMENDMENT 1. $&1OR& T2& /:&) covers both substantial and formal amendment, 7,T2O#T leave of court. +. )1T&R T2& /:&) covers only formal amendment provided8 a* leave of court is obtained b* such amendment is not pre"udicial to the ri hts of the accused. &E'&/T when a fact supervenes which chan es the nature of the crime char ed in the information or up rades it to a hi her crime, in which case, there is a need for another arrai nment of the accused under the amended information. )n amendment is only in form where it neither affects nor alters the nature of the offense char ed OR where the char e does not deprive the accused of a fair opportunity to present his defense OR where it does not involve a chan e in the basic theory of the prosecution. Su=stitution ,f it appears at anytime before "ud ment that a mistake has been made in char in the proper offense, the court shall dismiss the ori inal complaint or information upon the filin of a new one char in the proper offense, provided the accused shall not be placed in double "eopardy. :imitation to the rule on substitution8 1. 0o "ud ment has yet been rendered. +. The accused cannot be convicted of the offense char ed or of any other offense necessarily included therein. .. The accused would not be placed in double "eopardy. AMENDMENT SU#STITUTION OF INFORMATION OR

(ay involve either formal or substantial chan es )mendment before the plea has been entered can be effected without leave of court. )mendment is only as to form, there is no need for another preliminary investi ation and the retakin of the plea of the accused. )n amended information refers to the same offense char ed in the ori inal information or to an offense which necessarily includes or is necessarily included in the ori inal char e, hence substantial amendments to the information after the plea has been taken cannot be made over the ob"ection of the accused, for if the ori inal information would be withdrawn, the accused could invoke double "eopardy.

,nvolves substantial chan e from the ori inal char e Substitution of information must be with leave of court as the ori inal information has to be dismissed. )nother preliminary investi ation is entailed and the accused has to plead anew to the new information

Re4uires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the ori inal char e, hence the accused cannot claim double "eopardy.

VARIANCE #ET6EEN INDICTMENT AND PROOF ?Situations Cont&m+lat&d@ 1. 7hen the offense proved is less serious than, and is necessarily included in, the offense char ed, in which case the defendant shall be convicted of the offense proved. +. 7hen the offense proved is more serious than and includes the offense char ed, in which case

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!#

MEMORY AID
the defendant shall be convicted of the offense char ed. .. 7hen the offense proved is neither included in, nor does it include, the offense char ed and is different therefrom, in which case the court should dismiss the action and order the filin of a new information char in the proper offense. The third situation set forth above is substitution of information under Section 1=, Rule 11D. S&ction $8' Plac& )*&r& action is to =& institut&d' PURPOSE The purpose bein not to compel the defendant to move to, and appear in a different court from that of the territory where the crime was committed, as it would cause him reat inconvenience in lookin for his witnesses and other evidence in another place !$eltran vs. Ramos, C@ /hil. 1=C*. VENUE IS JURISDICTIONAL 6enue is "urisdictional as the court has no "urisdiction to try an offense committed outside its territorial "urisdiction. ,t cannot be waived, or chan ed by a reement of the parties, or by the consent of the defendant. 3ENERAL RULE! Sub"ect to e?istin laws, in all criminal prosecutions, the action must be instituted and tried in the courts of the municipality or territory where the offense was committed or any of its essential in redients occurred. E CEPTIONS TO T"E RULE OF VENUE! 1. 1elonies under )rt. + of the Revised /enal 'ode Shall be co nizable by the proper court where the criminal action was first filed. +. 'omple? 'rimes @.

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REMEDIAL LAW

..

=. >.

7here the crime char ed is a comple? crime, the RT' of any province in which any one of the essential elements of such comple? crime had been committed has "urisdiction to take co nizance of the offense. Continuin. O((&ns& ; is one where the elements of which occur in several places, !unlike a :O'): O11&0S& ; one which is fully consummated in one place* The venue is in the place where one of its essential elements was consummated. /iracy The venue of piracy, unlike all other crimes, has no territorial limits. :ibel The action may be instituted at the election of the offended or suin party in the province or city8 a* where the libelous article is printed and first published9 b* if one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense9 c* if the offended party is a public official, where the latter holds office at the time of the commission of the offense. ,n e?ceptional circumstances to ensure a fair trial and impartial in4uiry. The S' shall have the power to order a chan e of venue or place of trial to avoid miscarria e of "ustice !Section >J=K, )rticle 6,,,, 1CBA 'onstitution*. t*&

S&ction $9' Int&r-&ntion o( o((&nd&d +art, in criminal action'

3ENERAL RULE! Offended party has the ri ht to intervene by counsel in the prosecution of the criminal action, where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!3

MEMORY AID
E CEPTIONS! 1. 7here from the nature of the crime and the law definin and punishin it, 0O civil liability arises in favor of the offended party9 and +. 7here the offended party has waived his ri ht to civil indemnity OR has e?pressly reserved his ri ht to institute a civil action OR has already instituted said action. RULE $$$ PROSECUTION OF CIVIL ACTIONS S&ction $' Institution o( criminal and ci-il actions' 3ENERAL RULE! 7hen a criminal action is instituted, the civil action for the recovery of civil liability arisin from the offense shall be deemed instituted with the criminal action. E CEPTIONS! 1. when the offended party 7),6&S the civil action +. when the offended party R&S&R6&S his ri ht to institute a separate civil action .. when offended party ,0ST,T#T&S ) ',6,: )'T,O0 /R,OR to the criminal action. 6"EN RESERVATION S"ALL #E MADE 1. before the prosecution starts to present its evidence and +. under circumstances affordin the offended party to a reasonable opportunity to make such reservation. O0:- the civil liability arisin from the crime char ed as a felony is now deemed instituted. 'ivil liability arisin from other sources of obli ations are no lon er deemed instituted like those under )rticle .+, .., .= and +1A@ of the 'ivil 'ode which can be prosecuted even without reservation.

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REMEDIAL LAW

,n $/ ++ cases, no reservation to file the civil action separately shall be allowed. RULES ON FILIN3 FEES OF CIVIL ACTION DEEMED INSTITUTED 6IT" T"E CRIMINAL ACTION 1. 0O filin fees are re4uired for amounts of )'T#): 3)()F&S, &E'&/T with respect to criminal actions for violation of $/ ++, in which case, the offended party shall pay in full the filin fees based on the face value of the check as the actual dama es9 +. 3ama es other than actual !moral, e?emplary and other dama es* if specified in the complaint or information, the correspondin filin fees shall be paid, otherwise the court will not ac4uire "urisdiction over such dama es9 .. 7here moral, e?emplary and other dama es are 0OT specified in the complaint or information, the rant and amount thereof are left to the sound discretion of the trial court, the correspondin filin fees need not be paid and shall simply constitute a first lien on the "ud ment. 'ounterclaims, cross;claims, third party complaints are no lon er allowed in a criminal proceedin . )ny claim which could have been the sub"ect thereof may be liti ated in a separate civil action. S&ction 4' 6*&n s&+arat& ci-il action is sus+&nd&d' PRIMAC0 OF CRIMINAL ACTION OVER CIVIL ACTION 1. )fter the filin of the criminal action, the civil action which has been reserved ')00OT be instituted until final "ud ment has been rendered in the criminal action. +. ,f the civil action is instituted $&1OR& the filin of the criminal

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!!

MEMORY AID
action and the criminal action is subse4uently commenced, the pendin civil action shall be suspended until final "ud ment in the criminal action has been rendered. E CEPTIONS! a* ,n cases of independent civil actions based upon )rts. .+, .., .= and +1A@ of the 'ivil 'ode9 b* ,n cases where the civil action presents a pre"udicial 4uestion9 c* ,n cases where the civil action is consolidated with the criminal action9 and d* 7here the civil action is not one intended to enforce the civil liability arisin from the offense. ACQUITTAL IN A CRIMINAL CASE DOES NOT #AR T"E FILIN3 OF T"E CIVIL CASE 6"ERE! 1. the ac4uittal is based on reasonable doubt, if the civil case has been reserved +. the decision contains a declaration that the liability of the accused is not criminal but only civil in nature and .. the civil liability is not derived from or based on the criminal act of which the accused is ac4uitted !Sapiera vs. Co)r o* Appeals, 31- SCRA 3%0*. &?tinction of the penal action does not carry with it the e?tinction of the civil action, #0:&SS the e?tinction proceeds from a declaration in a final "ud ment that the fact from which the civil liability mi ht arise did not e?ist. The e?tinction of the civil liability refers e?clusively to civil liability arisin from crime9 whereas, the civil liability for the same act considered as a 4uasi; delict is not e?tin uished even by a declaration in the criminal case that the criminal act char ed has not happened or has not been committed by the accused. 7here the criminal case was dismissed before trial because the offended party

IN

REMEDIAL LAW

e?ecuted an affidavit of desistance, the civil action thereof is similarly dismissed. S&ction 5' 6*&n ci-il action ma, +roc&&d ind&+&nd&ntl,' The institution of an independent civil action a ainst the offender under )rticles .+, .., .= and +1A@ of the 'ivil 'ode may proceed independently of the criminal case and at the same time without suspension of either proceedin . Recovery of civil liability under )rticles .+, .., .= and +1A@ of the 'ivil 'ode arisin from the same act or omission may be prosecuted separately even without a reservation. The reservation and waiver herein refers only to the civil action for the recovery of civil liability arisin from the offense char ed ! D&P. /mployees Credi Coop vs. 0ele1, 2.R. No. 12$2,2, Nov. 2$, 2001*. PURPOSE To prevent the offended party from recoverin dama es twice for the same act or omission. S&ction 7' E((&ct o( d&at* on ci-il actions' )1T&R arrai nment and durin the pendency of the criminal action ; e?tin uishes the civil liability arisin from the delict. $&1OR& arrai nment ; the case shall be 3S(,SS&3 without pre"udice to any civil action the offended party may file a ainst the estate of the deceased. 2owever, the independent civil action instituted under Section . of this Rule or which thereafter is instituted to enforce liability arisin from other sources of obli ation may be continued a ainst the estate or le al representative of the accused after proper substitution or a ainst said estate, as the case may be. S&ction :' El&m&nts o( +r&1udicial /u&stion'

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!5

MEMORY AID
Pr&1udicial Qu&stion ; that which arises in a case, the resolution of which is the lo ical antecedent of the issue involved therein, and the co nizance of which pertains to another tribunal. ,t must be determinative of the case before the court but the "urisdiction to try and resolve the 4uestion must be lod ed in another court or tribunal. Rational&! decisions. to avoid two conflictin

IN

REMEDIAL LAW

complaint or information for an offense where the penalty prescribed by law is at least = years, + months and 1 day without re ard to the fine. There is 0O ri ht of preliminary investi ation under Section A, Rule 11+ when a person is :)71#::- arrested unless there is a waiver of the provisions of )rticle 1+> of the Revised /enal 'ode. 2O7&6&R, the accused can ask for /reliminary ,nvesti ation in the followin cases8 1. if a person is arrested, he can ask for preliminary investi ation $&1OR& the filin of the complaintGinformation $#T he must si n a waiver in accordance with )rticle 1+>, R/'. +. )1T&R the filin of the informationGcomplaint, the accused may, within > days from the time he learns of its filin ask for preliminary investi ation. PURPOSES 1. to determine whether a crime has been committed and whether there is probable cause to believe that the accused is uilty thereof9 +. to preserve evidence and keep the witnesses within the control of the State9 .. to determine the amount of bail, if the offense is bailable. PRELIMINAR0 INVESTI3ATION! PERSONAL STATUTOR0 RI3"T The ri ht to preliminary investi ation is a personal ri ht covered by statute and may be waived e?pressly or by implication. )bsence of preliminary investi ation does not affect the "urisdiction of the court or invalidate the information if no ob"ection was raised by the accused. REMEDIES OF T"E ACCUSED IF T"ERE 6AS NO PRELIMINAR0 INVESTI3ATION 1. Refuse to enter a plea upon arrai nment and ob"ect to

ELEMENTS OF A PREJUDICIAL QUESTION 1. The civil action must be instituted prior to the criminal action. +. The civil action involves an issue similar or intimately related to the issue raised in the criminal action. .. The resolution of such issue determines whether or not the criminal action may proceed. 6"ERE TO FILE PETITION FOR SUSPENSION #0 REASON OF PREJUDICIAL QUESTION 1. Office of the prosecutor9 or +. court conductin the preliminary investi ation9 or .. court where the criminal action has been filed for trial at any time before the prosecution rests. RULE $$4 PRELIMINAR0 INVESTI3ATION S&ction $' Pr&liminar, In-&sti.ation d&(in&dA )*&n r&/uir&d' Pr&liminar, In-&sti.ation ; is an in4uiry or proceedin to determine whether there e?ists sufficient round to en ender a well;founded belief that a crime has been committed and that the respondent is probably uilty thereof, and should be held for trial. !Sec. 1, Rule 11+* /reliminary ,nvesti ation is re4uired to be conducted $&1OR& the filin of a

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!6

MEMORY AID
further proceedin s upon such round ,nsist on a preliminary investi ation 1ile a certiorari, if refused Raise lack of preliminary investi ation as error on appeal 1ile for prohibition

IN

REMEDIAL LAW

+. .. =. >.

)s preliminary investi ation is 0OT a part of the trial, the dismissal of the case by the investi ator will not constitute double "eopardy and will not bar the filin of another complaint for the same offense, but if re;filed, the accused is entitled to another preliminary investi ation !#.S. vs. (arfori, .> /hil. @@@*. S&ction 4' O((ic&rs aut*oriB&d conduct +r&liminar, in-&sti.ation' to ,f respondent cannot be subpoenaed, or if subpoenaed but does not submit his counter;affidavit within 1D days, investi atin officer shall resolve the complaint based on the evidence presented by the complainant. RI3"TS OF RESPONDENT IN A PRELIMINAR0 INVESTI3ATION 1. to submit counter;affidavits +. to e?amine evidence submitted by the complainant .. to be present in the clarificatory hearin .

PERSONS AUT"ORICED TO CONDUCT A PRELIMINAR0 INVESTI3ATION 1. /rovincial or city fiscal and their assistants +. %ud es of the (T' and ('T' .. 0ational and re ional state prosecutors =. Such other officers as may be authorized by law such as8 the 'O(&:&', Ombudsman and /'FF

1ilin of the complaint accompanied by the affidavits and supportin documents.

7ithin 1D days after the filin , the investi atin officer shall either dismiss or issue subpoena.

,f subpoena is issued, S&ction 5' Proc&dur&

respondent shall submit a counter;affidavit and other supportin documents within 1D days from receipt thereof.

The Rules do not re4uire the presence of the respondent in the /reliminary ,nvesti ation, what is re4uired is that he be iven the opportunity to controvert the evidence of the complainant by submittin counter;affidavits.

2earin !optional*. ,t shall be held within 1D days from submission of counter;affidavits or from the REMEDIAL LAW OMMITTEE e?piration ofC the period of their CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E submission.

PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

Resolution of investigating prosecutor

San Beda College of Law


1!7

MEMORY AID
S&ction 9' 6*&n )arrant o( arr&st ma, issu& Pro=a=l& Caus& D presupposes a reasonable round for belief in the e?istence of facts warrantin the proceedin s complained of9 ; an apparent state of facts found to e?ist upon reasonable in4uiry which would induce a reasonably intelli ent and prudent man to believe that the accused person had committed the crime char ed. ,f the "ud e finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested and hold him for trial. ,f the "ud e is satisfied that there is no necessity for placin the accused under custody, he may issue summons instead of warrant of arrest. The RT' "ud e need 0OT personally e?amine the complaint and witnesses in the determination of probable cause for the issuance of the warrant of arrest. 2e is only re4uired to8 1. /ersonally evaluate the report and the supportin documents submitted durin the preliminary investi ation by the fiscal9 and +. On the basis thereof he may8 a* 3ismiss9 b* ,ssue warrant9 or c* Re4uire further affidavits. INSTANCES 6"EN MTC MA0 CONDUCT PRELIMINAR0 INVESTI3ATION! 1. cases co nizable by the RT' may be filed with the (T' for preliminary investi ation9 +. cases co nizable by the (T' because it is an offense where the penalty prescribed by law is at least four !=* years, two !+* months and one !1* day without re ard to the fine. ,n either situation, the (T' is authorized to issue a warrant of arrest if there is necessity of placin the respondent under immediate custody, in order not to frustrate the ends of "ustice.

IN

REMEDIAL LAW

CONDITIONS #EFORE T"E INVESTI3ATIN3 MUNICIPAL TRIAL JUD3E CAN ISSUE A 6ARRANT OF ARREST !2errera, p. +B+* 1. 2ave e?amined in writin and under oath the complainant and his witnesses by searchin 4uestions and answers9 searchin 4uestions and answers such 4uestions as may have the tendency to show the commission of the crime and the perpetrator thereof9 +. $e satisfied that a probable cause e?ists9 and .. That there is a need to place the respondent under immediate custody in order not to frustrate the ends of "ustice. ,f the (T' "ud e found probable cause but did not believe that the aforesaid conditions were met, he cannot be compelled by mandamus to issue the same. REMED0! The provincial fiscal, if he believes that the accused should be immediately placed in custody, may file the correspondin information so that the RT' may issue the necessary warrant of arrest !Sam)lde vs. Salvani, 3r., 2.R. No. %,606, Sep . 26, 1$,,*. 7hile the "ud e may rely on the fiscal5s certification thereof, the same is 0OT conclusive on him as the issuance of said warrant calls for the e?ercise of "udicial discretion and, for that purpose, the "ud e may re4uire the submission of affidavits of witnesses to aid him in arrivin at the proper conclusion, OR he may re4uire the fiscal to conduct further preliminary investi ation or reinvesti ation. INSTANCES 6"EN 6ARRANT OF ARREST NOT NECESSAR0 1. if the accused is already under detention9 +. if the complaint or information was filed after the accused was lawfully arrested without warrant9

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!8

MEMORY AID
.. if the offense is punishable by fine only. S&ction :' 6*&n accus&d la)(ull, arr&st&d )it*out )arrant' T6O SITUATIONS CONTEMPLATED UNDER T"IS RULE! 1. 7hen a person is lawfully arrested without a warrant for an offense re4uirin a preliminary investi ation !sec. 1, Rule 11+* and no complaint or information has yet been filed, he may ask for a preliminary investi ation by si nin a waiver of the provisions of )rt. 1+> of the R/' in the presence of his counsel. +. 7hen the complaint or information was filed without preliminary investi ation, the accused may, within > days from the time he learns of the filin of the information, ask for a preliminary investi ation with the same ri ht to adduce evidence in his favor in the manner prescribed in this Rule. The >;day period is ()03)TOR-, failure to file the motion within the said period amounts to waiver of the ri ht to ask for preliminary investi ation. 7here the information was amended without a new preliminary investi ation havin been conducted, the >;day period is computed from the time the accused learns of the filin of said amended information. 7here the trial court has ranted a motion for reinvesti ation, it must hold in abeyance the arrai nment and trial of the the accused until the prosecutor shall have conducted and made a report on the result of such reinvesti ation. The ri ht to bail pendin /reliminary ,nvesti ation under Section A, Rule 11+, a person lawfully arrested may post bail before the filin of the information or

IN

REMEDIAL LAW

even after its filin without waivin his ri ht to preliminary investi ation, provided that he asks for a preliminary investi ation by the proper officer within the period fi?ed in the said rule ! People vs. Co)r o* Appeals, &ay 2$, 1$$5 *. S&ction ;' R&cords Records of the preliminary investi ation shall 0OT automatically form part of the records of the case. 'ourts are not compelled to take "udicial notice thereof. ,t must be introduced as an evidence. S&ction <' Cas&s not r&/uirin. a +r&liminar, in-&sti.ation nor co-&r&d =, t*& Rul& on Summar, Proc&dur&' PROCEDURE TO #E FOLLO6ED IN CASES 6"IC" DO NOT REQUIRE PRELIMINAR0 INVESTI3ATION 1. &valuate the evidence presented +. 'onduct searchin 4uestions or answers .. Re4uire the submission of additional evidence 1or cases under the Revised Rules on Summary /rocedure, no warrant shall be issued e?cept where the accused fails to appear after bein summoned. ,f the complaint is filed with the prosecutor involvin an offense punishable by imprisonment of less than = years, + months and 1 day, the procedure in Rule 11+, Section . !a* shall be observed. ,f the complaint is filed with the (T', the same procedure under Rule 11+, Section . !a* shall be observed. RULE $$5 ARREST S&ction $' D&(inition o( arr&st' Arr&st E the takin of a person into custody in order that he may be bound

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1!

MEMORY AID
to answer for the commission of an offense !Sec. 1 Rule 11.*. Mod&s o( Arr&st 1. arrest by virtue of a warrant +. arrest without a warrant under e?ceptional circumstances as may be provided by statute !Sec. >, Rule 11.*. ESSENTIAL REQUISITES OF A VALID 6ARRANT OF ARREST 1. ,t must be issued upon probable cause which must be determined personally by a "ud e after e?amination under oath or affirmation of the complainant and the witnesses he may produce +. The warrant must particularly describe the person to be seized ) warrant of arrest has 0O e?piry date. ,t remains valid until arrest is effected or warrant is lifted. REMED0 FOR 6ARRANTS IMPROPERL0 ISSUED 7here a warrant of arrest was improperly issued, the proper remedy is a petition to 4uash it, 0OT a petition for habeas corpus, since the court in the latter case may only order his release but not en"oin the further prosecution or the preliminary e?amination of the accused !Alimpoos vs. Co)r o* Appeals, 106 SCRA 15$*. /ostin of bail does not bar one from 4uestionin ille al arrest !Section +@, Rule 11=, Rules of 'ourt*. S&ction 4' Arr&stA *o) mad&' MODES OF EFFECTIN3 ARREST 1. $y an actual restraint of the person to be arrested. +. $y his submission to the custody of the person makin the arrest. #pon arrest, the followin may be confiscated from the person arrested8

IN

REMEDIAL LAW

1. Ob"ects sub"ect of the offense or used or intended to be used in the commission of the crime9 +. Ob"ects which are the fruits of the crime9 .. Those which mi ht be used by the arrested person to commit violence or to escape9 =. 3an erous weapons and those which may be used as evidence in the case. S&ction 8' Arr&st )it*out )arrantA )*&n la)(ul LA6FUL 6ARRANTLESS ARREST 1. 7hen, ,0 2,S /R&S&0'&, the person to be arrested has committed, is actually committin , or is attemptin to commit an offense !in fla rante delicto arrests*9 +. 7hen an offense has in fact "ust been committed, and he has probable cause to believe based on /&RSO0): L0O7:&3F& of fact and circumstance that the person to be arrested has committed it9 !3octrine of 2ot /ursuit* .. 7hen the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is servin final "ud ment or temporarily confined while his case is pendin , or has escaped while bein transferred from one confinement to another. =. 7here a person who has been lawfully arrested escapes or is rescued !Sec. 1., Rule 11.*9 >. $y the bondsman for the purpose of surrenderin the accused !Sec. +., Rule 11=*9 and @. 7here the accused attempts to leave the country without permission of the court !Sec. +., Rule 11=*. ,f the arrest was effected without warrant, the arrestin officer must comply with the provisions of )rt. 1+> of the R/', otherwise, he may be held

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


15"

MEMORY AID
criminally liable for arbitrary detention under )rticle 1+= of the R/'. RULES ON ILLE3ALIT0 OF ARREST 1. )n accused who enters his plea of 0OT uilty and participates in the trial waives the ille ality of the arrest. Ob"ection to the ille ality must be raised before arrai nment, otherwise it is deemed waived, as the accused, in this case, has voluntarily submitted himself to the "urisdiction of the court. +. ,lle ality of warrantless arrest maybe cured by filin of an information in court and the subse4uent issuance by the "ud e of a warrant of arrest. .. Once a person has been duly char ed in court, he may no lon er 4uestion his detention by petition for habeas corpus, his remedy is to 4uash the information andGor the warrant of arrest. S&ction 9' Tim& o( maFin. arr&st' #nlike a search warrant which must be served only in daytime, an arrest may be made on any day and at any time of the day or ni ht, even on a Sunday. This is "ustified by the necessity of preservin the public peace. S&ction :' M&t*od o( arr&st o( o((ic&r =, -irtu& o( )arrant' #nder this rule, an arrest may be made even if the police officer is not in possession of the warrant of arrest !(allari vs. 'ourt of )ppeals, +@> S'R) =>@*. &?hibition of the warrant prior to the arrest is not necessary. 2owever, if after the arrest, the person arrested so re4uires, the warrant shall be shown to him as soon as practicable. S&ction ;' M&t*od o( arr&st =, o((ic&r )it*out )arrant' S&ction <' M&t*od o( arr&st =, +ri-at& +&rson'
Sec. B

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REMEDIAL LAW

CitiB&nGs arr&st ; arrest effected by a private person. M&t*od o( arr&st EHc&+tion to t*& rul& on .i-in. in(ormation
1. when the person to be arrested flees9 +. when he forcibly resists before the officer has an opportunity to inform him9 and .. when the ivin of such information will imperil the arrest.

Sec. A

The officer shall inform the person to be arrested the cause of the arrest and the fact that the warrant has been issued for his arrest. Not&! The officer need not have the warrant in his possession at the time of the arrest $#T must show the same after the arrest, if the person arrested so re4uires. The officer shall inform the person to be arrested of his authority and the cause of the arrest wGout a warrant

1. when the person to be arrested is en a ed in the commission of an offense or is pursued immediately its commission9 +. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him9 and .. when the

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


151

MEMORY AID
ivin of such information will imperil the arrest. Sec. C The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. 0ote8 /rivate person must deliver the arrested person to the nearest police station or "ail, otherwise, he may be held criminally liable for ille al detention. 1. when the person to be arrested is en a ed in the commission of an offense or is pursued immediately its commission9 +. when he has escaped, flees, or forcibly resists before the officer has an opportunity to so inform him9 and .. when the ivin of such information will imperil the arrest.

IN

REMEDIAL LAW

where the arrest is under a warrant, and where there is valid warrantless arrest. S&ction $4' Ri.*t to =r&aF out o( t*& =uildin. or &nclosur& to &((&ct r&l&as&' ) private person makin an arrest ')00OT break in or out of a buildin or enclosure because only officers are allowed by law to do so. S&ction $5' Arr&st a(t&r &sca+& or r&scu&' 7here a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the country. The pursuit must be immediate. S&ction $7' Ri.*t o( Attorn&, r&lati-& to -isit +&rson arr&st&d' or

R) A=.B defined certain ri hts of persons arrested, detained, or under custodial investi ation, with the penalties for violations thereof. RULE $$7 #AIL S&ction $' #ail d&(in&d' #ail ;; the security iven for the release of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance before any court as re4uired under the conditions specified by the rule !Sec. 1, Rule 11=*.

S&ction $%' assistanc&'

O((ic&r

ma,

summon

Only an officer makin the arrest is overned by the rule. ,t does not cover a private individual makin an arrest. S&ction $$' Ri.*t o( o((ic&r to =r&aF into =uildin. or &nclosur&' Re4uisites before an officer can break into a buildin or enclosure to make an arrest8 1. That the person to be arrested is or is reasonably believed to be in said buildin 9 +. That he has announced his authority and purpose for enterin therein9 .. That he has re4uested and been denied admittance. Fenerally, a lawful arrest may be made anywhere, even on private property or in a house. This rule is applicable both
REMEDIAL LAW COMMITTEE

) person is in the custody of law when he has been either arrested or otherwise deprived of his freedom or when he has voluntarily submitted himself to the "urisdiction of the court by surrenderin to the proper authorities. )ll persons, e?cept those char ed with offenses punishable by reclusion

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


15#

MEMORY AID
perpetua when evidence of uilt stron , shall, before conviction, bailable by sufficient sureties, or released on reco nizance as may provided by law !Section 1., )rticle 1CBA 'onstitution*. Forms 1. +. .. =. o( =ail! corporate surety property bond cash deposit reco nizance RECO3NICANCE
an obli ation of record, entered into before some court or ma istrate duly authorized to take it, with the condition to do some particular act9

IN

REMEDIAL LAW

is be be be ,,,,

re4uired by the court or these Rules9 .. The failure of the accused to appear at the trial without "ustification despite due notice shall be deemed a waiver of his ri ht to be present thereat. ,n such case, the trial may proceed in absentia9 =. The bondsman shall surrender the accused to court for e?ecution of the final "ud ment. 0o additional conditions can be imposed. ) detention prisoner who escaped waives his ri ht to cross;e?amination ! 3imene1 v. Na1areno*. $y filin a fake bail bond, an appellant is deemed to have escaped from confinement durin the pendency of his appeal and in the normal course of thin s, his appeal should be dismissed. 0o release or transfer e?cept on court order or bail. 0o person under detention by le al process shall be released or transferred e?cept upon order of the court or when he is admitted to bail !Sec. .*. S&ction 7' #ailI a matt&r o( ri.*tA &Hc&+tion' 7hen a matter of ri ht8 1. before or after conviction in the lower courts9 )03 +. before conviction by the RT', &E'&/T when the imposable penalty is death, reclusion perpetua or life imprisonment and evidence of uilt is stron . ,n instances where bail is a matter of ri ht and the bail to be ranted is based on the recommendation of the prosecution as stated in the information or complaint, a hearin is 0OT necessary. $ut where, however, there is a reduction of bail as recommended or after conviction by the RT' of an offense not

#AIL#OND
)n obli ation under seal iven by the accused with one or more sureties, and made payable to the proper officer with the condition to be void upon performance by the accused of such acts as he may le ally be re4uired to perform

/rosecution witnesses may also be re4uired to post bail to ensure their appearance at the trial of the case where8 1. there is a substitution of information !Sec. =, Rule11D*, and +. where the court believes that a material witness may not appear at the trial !Sec. 1=, Rule 11C*. S&ction 4' Conditions o( t*& =ailA r&/uir&m&nts' CONDITIONS OF #AIL 1. The undertakin shall be effective upon approval, and, unless cancelled, shall remain in force at all sta es of the case until promul ation of the "ud ment of the RT', irrespective of whether the case was ori inally filed in or appealed to it9 +. The accused shall appear before the proper courts whenever so

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


153

MEMORY AID
punishable by death, reclusion perpetua, or life imprisonment wherein the rant of bail is discretionary, there must be a hearin before a bail is ranted in order to afford the prosecution the chance to oppose it !(angayan vs. () a4an, 3-5 SCRA 301*. The prosecution cannot adduce evidence for the denial of bail where it is a matter of ri ht. 2owever, where the rant of bail is discretionary, the prosecution may show proof to deny the bail. )n e?traditee is not entitled to bail. The 'onstitutional provision on $ail as well as Sec. = of Rule 11= applies only when a person has been arrested and detained for violation of /hilippine 'riminal laws. ,t does not apply to e?tradition proceedin s because e?tradition courts do not render "ud ments of conviction or ac4uittal !2ov . o* +S vs. 3)dge P)rganan, Sep . 2-, 2002*. S&ction 8' #ailI discr&tionar,' )*&n

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REMEDIAL LAW

RULES ON AVAILA#ILIT0 OF #AIL 1. Re ardless of sta e of the criminal prosecution, no bail shall be allowed if the accused is char ed with a capital offense or an offense punishable by reclusion perpetua )03 the evidence of uilt is stron !Sec. A*9 +. $efore and after conviction by the (T', (unicipal Trial 'ourt or ('T', bail is a matter of ri ht !Sec.=*. .. $efore conviction by the RT' whether in the e?ercise of its ori inal or appellate "urisdiction, bail is a matter of ri ht. !Sec.=* =. #pon conviction by the RT' of an offense not punishable by death, reclusion perpetua or life imprisonment, admission to bail is discretionary !Sec. >*9 >. )fter conviction by the RT' wherein a penalty of imprisonment e?ceedin @ but not more than +D years is

imposed, and not one of the circumstances below is present and proved, bail is a matter of discretion !Sec.>*. a* Recidivism, 4uasi;recidivism or habitual delin4uency or commission of crime a ravated by the circumstances of reiteration. b* /revious escape from le al confinement, evasion of sentence or violation of the conditions of bail without valid "ustification. c* 'ommission of the offense while on probation, parole or under conditional pardon d* 'ircumstance of the accused or his case indicates the probability of fli ht if released on bail e* #ndue risk of commission of another crime by the accused durin pendency of appeal. @. )fter conviction by the RT' imposin a penalty of imprisonment e?ceedin @ years but not more than +D years and any of the circumstance enumerated above and other similar circumstance is present and proved, no bail shall be ranted !Sec.>*9 A. )fter "ud ment has become final unless accused applied for probation before commencin to serve sentence of penalty and offense within purview of probation law !Sec. +=*. S&ction 9' Ca+ital O((&ns&I d&(in&d' Ca+ital O((&ns& is an offense which, under the law e?istin at the time of its commission )03 at the time of the application to be admitted to bail, may be punished with death. ,f the law at the time of commission does not impose the death penalty, the subse4uent amendment of the law increasin the penalty cannot apply to the case, otherwise it would be e? post

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


15!

MEMORY AID
facto, and penalties are determined by the law at the time of the commission of the offense. ,f the law at the time of the application for bail has amended the prior law which imposed the death penalty by reducin such penalty, such favorable law enerally has a retroactive effect. S&ction :' Ca+ital O((&ns& not =aila=l&' 'apital offense or those punishable by reclusion perpetua, life imprisonment or death are 0OT $),:)$:& when evidence of uilt is stron . E CEPTION! ,f the accused char ed with a capital offense is a minor. S&ction ;' #urd&n o( +roo( in =ail a++lication' The hearin should be summary or otherwise in the discretion of the court but the ri ht of the prosecution to control the 4uantum of evidence and the order of presentation of witnesses must be e4uated with the purpose of the hearin to determine the bailability of the accused. The burden of provin that the evidence of uilt is stron lies within the fence of the prosecution. !Comia vs. An ona, 33% SCRA 656* &vidence of uilt is stron when proof is evident or the presumption of uilt is stron . The test is 0OT whether the evidence establishes uilt beyond reasonable doubt but rather whether it shows

IN

REMEDIAL LAW

+. 0ature and circumstances of the offense9 .. /enalty for the offense char ed9 =. 'haracter and reputation of the accused9 >. ) e and health of the accused9 @. 7ei ht of evidence a ainst the accused9 A. /robability of the accused appearin at the trial9 B. 1orfeiture of other bail9 C. The fact that the accused was a fu itive from "ustice when arrested9 and 1D. /endency of other cases when the accused is on bail $ail must not be in a prohibitory amount. &?cessive bail is not to be re4uired for the purpose of preventin the accused from bein admitted to bail. S&ction $$' Pro+&rt,I *o) +ost&d' Pro+&rt, #ond is an undertakin constituted as a lien on the real property iven as security for the amount of the bail !sec11*9 ,t is re4uired that the annotation of a lien on the land records of the property posted as bail, otherwise the property bail bond shall be cancelled. S&ction $4' Quali(ications o( sur&ti&s in +ro+&rt, =ond' /hilippine residency is re4uired of a property bondsman. The reason for this is that bondsmen in criminal cases, residin outside of the /hilippines, are not within the reach of the processes of its courts !0illase"or vs. Abano, 21 SCRA 312*.

shows evident uilt presumption of uilt.

or

reat

S&ction $5' Justi(ication o( sur&ti&s' The purpose of the rule re4uirin the affidavit of 4ualification by the surety before the "ud e, is to enable the latter to determine whether or not the surety possesses the 4ualification to act as such, especially his financial worth.

S&ction <' Amount o( =ailA .uid&lin&s' FACTORS TO #E CONSIDERED IN FI IN3 T"E REASONA#LE AMOUNT OF #AIL ?NOT E CLUSIVE@ 1. 1inancial ability of the accused to ive bail9

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


155

MEMORY AID
The "ustification bein under oath, any falsity introduced thereto by the surety upon a matter of si nificance would render him liable for per"ury. S&ction $7' D&+osit o( cas* as =ail' EFFECT OF DEPOSITIN3 CAS" AS #AIL )ccused shall be dischar ed from custody as it is considered as bail. S&ction $8' R&co.niBanc& R&co.niBanc& ; an obli ation of record, entered into before some court or officer authorized to take it with a condition to do some particular act and the accused is often allowed to obli ate himself to answer the char e. S&ction $9' #ail )*&n not r&/uir&dA r&duc&d =ail on r&co.niBanc&' ,nstances wherein the accused may be released on reco nizance, without puttin bail or on reduced bail8 ')0 $& R&:&)S&3 7,T2O#T $),: #03&R T2& R&6,S&3 R#:&S O0 S#(()R/RO'&3#R&

IN

REMEDIAL LAW
held for physical or mental e?amination, trial or appeal, if unable to furnish bail and under the circumstances under /3 @D., as amended

O0 R&3#'&3 $),: OR O0 2,S O70 R&'OF0,M)0'&

1.

Offense char ed is violation of an ordinance, li ht felony or a criminal offense, the imposable penalty wherefore does not e?ceed @ months of imprisonment andGor fine of / +,DDD under R.).@D.@. 7here the accused has applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filin one, in which case he may be released on reco nizance of a offender

+.

) person in custody for a period e4ual to or more than the minimum of the principal penalty prescribed for the offense char ed, without application of the indeterminate sentence law or any modifyin circumstance shall be released on reduced bail or on his own reco nizance. Feneral Rule8 no bail &?ception8 1. 7hen a warrant of arrest is issued for failure to appear when re4uired by the court +. 7hen the accused ; is a recidivist9 ; is a fu itive from "ustice9 ; is char ed with physical in"uries ; does not reside in the place where the violation of the law or ordinance is committed9 or ;has not reside in the place where the violation of the law or ordinance is committed9 or ;has no known residence

S&ction $:' #ailI )*&r& (il&d' 1. (ay be filed with the court where the case is pendin , or in the absence or unavailability of the "ud e thereof, with another branch of the same court within the province or city.

.. ,n case youthful

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


156

MEMORY AID
+. 7henever the rant of bail is a matter of discretion, or the accused seeks to be released on reco nizance, .. the application therefor may be filed only in the particular court where the case is pendin , whether for preliminary investi ation, trial or appeal. =. )ny person in custody who is not yet char ed in court may apply for bail with any court in the province, city or municipality where he is held. S&ction $;' Notic& o( a++lication to +ros&cutor' Such notice is necessary because the burden of provin that the evidence of uilt is stron is on the prosecution and that the discretion of the court in admittin the accused to bail can only be e?ercised after the fiscal has been heard re ardin the nature of the evidence in his possession. !People vs. Raba, 130 P#il. 3,-* S&ction $<' R&l&as& on =ail' Once the accused has been admitted to bail, h is entitled to immediate release from custody. )n officer who fails or refuses to release him from detention notwithstandin the approval by the proper court of his bailbond, may be held liable under )rticle 1+@ of the Revised /enal 'ode for delayin release. S&ction 4%' Incr&as& or r&duction o( =ail' The uidelines provided for in Section C, Rule 11=, in fi?in the amount of bail are also applicable in reducin or increasin the bail previously fi?ed. 7here the offense is bailable as a matter of ri ht, the mere probability that the accused will escape, or even if he had previously escaped while under detention, does not deprive him of his ri ht to bail. The remedy is to increase the amount of the bail, provided such

IN

REMEDIAL LAW

amount would not be e?cessive. ! Sy 2)an vs. Amparo, %$ P#il. 6%0* S&ction 4$' For(&itur& o( =ail' 7ithin .D days from the failure of the accused to appear in person as re4uired, the bondsmen must8 ). /RO3#'& the body of their principal or ive the reason for his non;production9 )03 $. &E/:),0 why the accused did not appear before the court when first re4uired to do so. The .D;day period ranted to the bondsmen to comply with the two re4uisites for the liftin of the order of forfeiture cannot be shortened by the court but may be e?tended for ood cause shown. . ORDER OF FORFEITURE VS' ORDER OF CONFISCATION 1. an OR3&R O1 1OR1&,T#R& is conditional and interlocutory, there bein somethin more to be done such as the production of the accused within .D days as provided by the rules an order of forfeiture is not appealable +. an OR3&R O1 'O01,S')T,O0 is not independent of the order of the order of forfeiture. ,t is a "ud ment ultimately determinin the liability of the surety thereunder, and therefore final and e?ecution may issue at once. S&ction 44' Canc&llation o( =ail=ond' INSTANCES 6"EN #AIL #OND CAN #E CANCELLED 1. upon application by the bondsman with notice to the fiscal and upon surrender of the accused9 and +. upon proof that the accused died. The bail bond is automatically cancelled upon the ac4uittal of the accused or dismissal of the case or e?ecution of the final order of conviction, without

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


157

MEMORY AID
pre"udice to any liability on the bond incurred prior to their dischar e. MET"ODS #0 6"IC" SURETIES MA0 RELIEVE T"EMSELVES FROM RESPONSI#ILITIES a. )rrest the principal and deliver him to the proper authorities9 b. They may cause his arrest to be made by any police officer or other person of suitable a e or discretion9 or c. $y endorsin the authority to arrest upon a certified copy of the undertakin and deliverin it to such officer or person S&ction 45' Arr&st o( accus&d out on =ail' )n accused released on bail may be re; arrested without a warrant if he attempts to depart from the /hilippines without prior permission of the court where the case is pendin . S&ction 47' No =ail 1ud.m&ntA &Hc&+tion' a(t&r (inal

IN

REMEDIAL LAW

The application for probation must be filed within the period of perfectin an appeal. Such filin operates as a waiver of the ri ht to appeal. The accused in the meantime, is entitled to be released on bail or reco nizance. !Sec. =, /3 C@B, as amended* S&ction 48' d&tain&&s' Court su+&r-ision o(

The employment of physical, psycholo ical or de radin punishment a ainst any prisoner or detainee or the use of substandard or inade4uate penal facilities under subhuman conditions shall be dealt with by law !Section 1C!+*, )rticle ,,,, 1CBA 'onstitution*. S&ction 49' #ail not a =ar to o=1&ction on ill&.al arr&stI lacF o( or irr&.ular +r&liminar, in-&sti.ation' AN APPLICATION FOR OR ADMISSION TO #AIL S"ALL NOT #AR T"E ACCUSED a. from challen in the validity of his arrest OR b. le ality of the warrant issued therefore, OR c. from assailin the re ularity or 4uestionin the absence of preliminary investi ation of the char e a ainst him, /RO6,3&3, he raises them before enterin his plea. RULE $$8 RI3"TS OF T"E ACCUSED This rule enumerates the ri hts of a person accused of an offense, which are both constitutional as well as statutory, save the ri ht to appeal, which is purely statutory in character. S&ction $' Ri.*ts o( t*& accus&d at t*& trial' A' TO #E PRESUMED INNOCENT ,n all criminal prosecutions, the accused is presumed innocent until the contrary is proved beyond reasonable doubt.

3ENERAL RULE! The finality of the "ud ment terminates the criminal proceedin . $ail becomes of no avail. The "ud ment contemplated is a "ud ment of conviction. The "ud ment is final if the accused does not appeal the conviction. 0o bail shall be ranted after "ud ment, if the case has become final even if continued confinement of the accused would be detrimental or dan erous to his health. The remedy would be to submit him to medical treatment or hospitalization.

E CEPTION! ,f the accused applies for probation he may be allowed temporary liberty under his e?istin bail bond, or if no bail was filed, or is incapable of filin one, he may be released on reco nizance to the custody of a responsible member of the community

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


158

MEMORY AID
R&asona=l& Dou=t is that doubt en endered by an investi ation of the whole proof and an inability, after such investi ation, to let the mind rest easy upon the certainty of uilt. )bsolute certainty of uilt is not demanded by the law to convict of any criminal char e but moral certainty is re4uired, and this certainty is re4uired as to every proposition of proof re4uisite to constitute the offense. &4uipoise rule where the evidence of the parties in a criminal case are evenly balanced, the constitutional presumption of innocence should tilt in favor of the accused and must be ac4uitted. #' TO #E INFORMED OF T"E NATURE AND T"E CAUSE OF T"E ACCUSATION A3AINST "IM' )n accused cannot be convicted of an offense unless it is clearly char ed in the complaint or information. To convict him of an offense other than that char ed in the complaint or information would be a violation of this constitutional ri ht !People vs. 5r ega, 2%6 SCRA 166*. 7hen a person is char ed in a complaint with a crime and the evidence does not show that he is uilty thereof, but does show that he is uilty of some other crime or a lesser offense, the court may sentence e him for the lesser offense, /RO6,3&3 the lesser offense is a co nate offense and is included in the complaint with the court. C' TO #E PRESENT AND DEFEND IN PERSON AND #0 COUNSEL AT EVER0 STA3E OF T"E PROCEEDIN3

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REMEDIAL LAW

the presence of his counsel or a representative .. 7hen ordered by the court for purposes of identification 0ot applicable in S' and ') ; The law securin to an accused person the ri ht to be present at every sta e of the proceedin s has no application to the proceedin s before the 'ourt of )ppeals and the Supreme 'ourt nor to the entry and promul ation of their "ud ments The defendant need not be present in court durin the hearin of the appeal. !Sec. C Rule 1+=* )ccused may waive his ri ht to be present durin the trial. 2O7&6&R, his presence may be compelled when he is to be identified. !A6)ino, 3r. vs. &ili ary Commission, 63 SCRA 5-6* EFFECTS OF 6AIVER OF T"E RI3"T TO APPEAR #0 T"E ACCUSED 1. waiver of the ri ht to present evidence9 +. prosecution can present evidence if accused fails to appear9 .. the court can decide without accused5s evidence. TRIAL IN A#SENTIA ,t is important to state that the provision of the 'onstitution authorizin the trial in absentia of the accused in case of his non;appearance )1T&R )RR),F0(&0T despite due notice simply means that he thereby waives his ri ht to meet the witnesses face to face amon others. Such waiver of a ri ht of the accused does not mean a release of the accused from his obli ation under the bond to appear in court whenever so re4uired. The accused may waive his ri ht but not his duty or obli ation to the court. REQUIREMENTS FOR TRIAL IN A#SENTIA 1. accused has been arrai ned +. he has been duly notified of the trial .. his failure to appear is un"ustified

T"E PRESENCE OF T"E ACCUSED IS REQUIRED ONL0 1. 3urin arrai nment !Sec. 1b, rule 11@* +. /romul ation of "ud ment &E'&/T when the conviction is for a li ht offense, in which case, it may be pronounced in

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


15

MEMORY AID
)n escapee who has been duly tried in absentia waives his ri ht to present evidence on his own behalf and to confront and cross;e?amine witnesses who testified a ainst him. ! 2imene1 vs. Na1areno, 160 SCRA 1* D' RI3"T TO COUNSEL The ri ht covers the period be innin from custodial investi ation, well into the rendition of the "ud ment and even on appeal. !People vs. Ser1o, 3r., 2%SCRA 553* ,f durin the investi ation the assistin lawyer left, or come and o, the statement si ned by the accused is still inadmissible because the lawyer should assist his client from the time the confessant answers the first 4uestion asked by the investi atin officer until the si nin of the e?tra"udicial confession. !People vs. &orial, 363 SCRA $6* The ri ht to counsel and the ri ht to remain silent do not cease even after a criminal complaintGinformation has already been filed a ainst the accused, )S :O0F )S he is still in custody. The duty of the court to appoint a counsel de oficio when the accused has no le al counsel of choice and desires to employ the services of one is ()03)TOR- only at the time of arrai nment. !Sec. @ Rule 11@* E' TO TESTIF0 AS 6ITNESS IN "IS O6N #E"ALF ) denial of the defendant5s ri ht to testify in his behalf would constitute an un"ustifiable violation of his constitutional ri ht. !People vs. San iago, -6 P#il. %3-* ,f the accused testifies, he may be cross; e?amined but O0:- on matters covered by his direct e?amination, unlike an ordinary witness who can be cross; e?amined as to any matter stated in the direct e?amination or connected therewith !Section @, Rule 1.+*. 2is

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REMEDIAL LAW

failure to testify is not taken a ainst him but failure to produce evidence in his behalf is considered a ainst him ! +.S. vs. (ay, $% P#il. -$5*. F' RI3"T A3AINST SELFD INCRIMINATION The accused is protected under this rule from 4uestions which tend to incriminate him, that is, which may sub"ect him to penal liability. The ri ht may be waived by the failure of the accused to invoke the privile e at the proper time, that is, )1T&R the incriminatin 4uestion is asked and before his answer9 The privile e of the accused to be e?empt from testifyin as a witness involves a prohibition a ainst testimonial compulsion only and the production by the accused of incriminatin documents, and articles demanded from him. ! +.S. vs. !an !eng, 23 P#il. 1-5* E CEPTIONS! immunity statutes such as8 1. R) 1.AC 1orfeiture of ,lle ally obtained wealth +. R) A=C $ribery and Fraft cases RI3"T OF T"E ACCUSED A3AINST SELFD INCRIMINATION VS' RI3"T OF T"AT OF AN ORDINAR0 6ITNESS The ordinary witness may be compelled to take the witness stand and claim the privile e as each 4uestion re4uirin an incriminatin answer is shot at him, an accused may alto ether refuse to take the witness stand and refuse to answer any and all 4uestions. 3' RI3"T TO CONFRONT AND CROSSD E AMINE T"E 6ITNESSES A3AINST "IM AT TRIAL Con(rontation is the act of settin a witness face;to;face with the accused so that the latter may make any ob"ection he has to the witness, and the witness may identify the accused, and this must take place in the presence of the court havin "urisdiction to permit the privile e of cross;e?amination.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


16"

MEMORY AID
The main purpose of the ri ht to confrontation is to secure the opportunity of cross;e?amination and the secondary purpose is to enable the "ud e to observe the demeanor of witnesses. ,n any criminal proceedin , the defendant en"oys the ri ht to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. "' RI3"T TO SPEED0I IMPARTIAL AND PU#LIC TRIAL The ri ht to a speedy trial is intended to avoid oppression and to prevent delay by imposin on the courts and on the prosecution an obli ation to proceed with reasonable dispatch. The courts, in determinin whether the ri ht of the accused to a speedy trial has been denied, should consider such facts as the len th of the delay, the accused5s assertion or non;assertion of his ri ht, and the pre"udice to the accused resultin from the delay. There is 0O violation of the ri ht where the delay is imputable to the accused. !Solis vs. Agloro, 6- SCRA 3%0* REMEDIES AVAILA#LE TO T"E ACCUSED 6"EN "IS RI3"T TO A SPEED0 TRIAL IS VIOLATED 1. 2e should ask for the trial of the case not for the dismissal9 +. #nreasonable delay of the trial of a criminal case as to make the detention of defendant ille al ives round for habeas corpus as a remedy for obtainin release so as to avoid detention for a reasonable period of time .. )ccused would be entitled to relief in a mandamus proceedin to compel the dismissal of the information. IMPARTIAL TRIAL 3ue process of law re4uires a hearin before an impartial and disinterested tribunal, and that every liti ant is

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REMEDIAL LAW

entitled to nothin less than the cold neutrality of an impartial "ud e. !&a eo, 3r. vs. 0illal)1, 50 SCRA 1,0* Pu=lic trial one held openly or publicly9 it is sufficient that the relatives and friends who want to watch the proceedin s are iven the opportunity to witness the proceedin s. E CLUSION OF T"E PU#LIC IS VALID 6"EN! 1. evidence to be produced is offensive to decency or public morals9 +. upon motion of the accused9 !Sec. +1, Rule 11C* RULE ON TRIAL #0 PU#LICIT0 The ri ht of the accused to a fair trial is not incompatible to a free press. /ervasive publicity is not per se as pre"udicial to the ri ht to a fair trial. To warrant a findin of pre"udicial publicity, there must be alle ations and proof that the "ud es have been unduly influenced, not simply that they mi ht be, by the barra e of publicity. ! People vs. !ee#an7ee, 2-$ SCRA 5-* I' RI3"T TO APPEAL ON ALL CASES ALLO6ED #0 LA6 AND IN T"E MANNER PRESCRI#ED #0 LA6' The ri ht to appeal from a "ud ment of conviction is fundamentally of statutory ori in. ,t is not a matter of absolute ri ht, independently of constitutional or statutory provisions allowin such appeal. 6AIVER OF T"E RI3"T TO APPEAL The ri ht to appeal is personal to the accused and similarly to other ri hts of kindred nature, it may be waived either e?pressly or by implication. 2O7&6&R, where death penalty is imposed, such ri ht cannot be waived as the review of the "ud ment by the 'O#RT O1 )//&):S is automatic and mandatory !).(. 0O. DD;>;D.;S'*. T"E SPEED0 TRIAL ACT OF $<<; ?RA ;7<5@

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


161

MEMORY AID
DUT0 OF T"E COURT AFTER ARRAI3NMENT OF AN ACCUSED 'ourt S2):: order a pre;trial conference to consider the followin 8 1. plea bar ainin 9 +. stipulation of facts9 .. markin for identification of evidence of parties9 =. waiver of ob"ections to admissibility of evidence9 and >. such other matter as will promote a fair and e?peditious trial9 TIME LIMIT FOR T"E TRIAL OF CRIMINAL CASES! S2):: 0OT &E'&&3 1BD days from the first day of trial, 2O7&6&R, this rule is 0OT )$SO:#T&, for the law provides for the followin E CEPTIONS! 1. those overned by the Rules on Summary /rocedure9 or +. where the penalty prescribed by law 3O&S 0OT &E'&&3 @ months imprisonment or a fine of /1,DDD or both9 .. those authorized by the 'hief %ustice of the S'9 PERIOD FOR ARRAI3NMENT OF T"E ACCUSED 7ithin .D days from the filin of the information, or from the date the accused appealed before the "usticeG"ud eGcourt in which the char e is pendin , whichever date last occurs.

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REMEDIAL LAW

ARRAI3NMENT AND PLEA S&ction $' Arrai.nm&nt and +l&aA *o) mad&' Arrai.nm&nt the formal mode of implementin the constitutional ri ht of the accused to be informed of the nature of the accusation a ainst him. 6"ERE AND "O6 MADE! 1. $efore the court where the complaint or information has been filed or assi ned for trial9 +. in open court, by the "ud e or clerk by furnishin the accused a copy of the complaint or information with the list of the witnesses, readin it in a lan ua e or dialect known to him and askin him of his plea9 RULES! 1. Trial in absentia is allowed only )1T&R arrai nment9 +. %ud ment is enerally void if the accused has not been arrai ned9 .. There can be no arrai nment in absentia !accused must personally enter his plea*9 =. if the accused went to trial without arrai nment, but his counsel had the opportunity to cross;e?amine the witness of the prosecution and after the prosecution he was arrai ned the defect was cured9

6"EN S"ALL TRIAL COMMENCE AFTER ARRAI3NMENT 7ithin .D days from arrai nment, 2O7&6&R, it may be e?tended $#T only8 1. for 1BD days for the first 1+ calendar month period from the effectivity of the law9 +. 1+D days for the second 1+ month period9 and .. BD days for the third 1+ month period. RULE $$9

,f an information is amended ()T&R,)::-, arrai nment on the amended information is ()03)TOR-, e?cept if the amendment is only as to form9 Pl&a the matter which the accused, on his arrai nment, alle es in answer to the char e a ainst him. PERIOD TO PLEA 7hen the accused is under preventive detention8 his case shall be raffled and its records transmitted to the "ud e to

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


16#

MEMORY AID
whom the case was raffled within . days from the filin of the information or complaint and the accused arrai ned within 1D days from the date of the raffle. The pre;trial conference of his case shall be held within 1D days after arrai nment. 7hen the accused is 0OT under preventive detention8 unless a shorter period is provided by special law or Supreme 'ourt circular, the arrai nment shall be held within .D days from the date the court ac4uires "urisdiction over the person of the accused. The time of the pendency of a motion to 4uash, or for bill of particulars, or other causes "ustifyin suspension of the arrai nment, shall be e?cluded in computin the period. 6"EN S"OULD A PLEA OF NOT 3UILT0 #E ENTERED 1. when the accused so pleaded +. when he refuses to plead .. where in admittin the act char ed, he sets up matters of defense or with lawful "ustification =. when he enters a conditional plea of uilt >. where, after a plea of uilt, he introduces evidence of self; defense or other e?culpatory circumstances @. when the plea is indefinite or ambi uous )n unconditional plea of uilt admits of the crime and all the attendant circumstances alle ed in the information includin the alle ations of conspiracy and warrants of "ud ment of conviction without need of further evidence E CEPT! !'), 30* 1. 7here the plea of uilty was compelled by violence or intimidation. +. 7hen the accused did not fully understand the meanin and conse4uences of his plea. .. 7here the information is insufficient to sustain conviction of the offense char ed.

IN

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=. 7here the information does not char e an offense, any conviction thereunder bein void. >. 7here the court has no "urisdiction. S&ction 4' Pl&a o( 3uilt, to a l&ss&r o((&ns&' )n accused may enter a plea of uilty to a lesser offense /RO6,3&3 that there is consent of the offended party and the prosecutor to the plea of uilty to a lesser offense which is necessarily included in the offense char ed. )fter arrai nment but $&1OR& trial, the accused may still be allowed to plead uilty to a lesser offense after withdrawin his plea of not uilty. ,n this plea of uilty to a lesser offense, no amendment of the complaint or information is necessary. ,f the accused entered a plea to a lesser offense 7,T2O#T the consent of the offended party and the prosecutor )03 he was convicted, his subse4uent conviction of the crime char ed would 0OT place him in 3ouble %eopardy. S&ction 5' Pl&a o( .uilt, to ca+ital o((&ns&A r&c&+tion o( &-id&nc&' 7hen the accused pleads uilty to a capital offense, the court shall8 1. conduct a searchin in4uiry into the voluntariness and full comprehension of the conse4uences of his plea9 +. re4uire the prosecution to prove his uilt and the precise de ree of his culpability9 .. ask the accused if he desires to present evidence in his behalf and allow him to do so if he desires. To constitute searchin in4uiry, the 4uestionin must focus on8 1. the voluntariness of the plea9 and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


163

MEMORY AID
+. 7hether the accused understood fully the conse4uence of his plea. S&ction 8' 6it*dra)al o( im+ro-id&nt +l&a o( .uilt,' Pl&a o( 3uilt, an unconditional admission of uilt, freely, voluntarily and made with full knowled e of the conse4uences and meanin of his act and with a clear understandin of the precise nature of the crime char ed in the complaint or information9 INSTANCES OF IMPROVIDENT PLEA 1. plea of uilty was compelled by violence or intimidation +. the accused did not fully understand the meanin and conse4uences of his plea .. insufficient information to sustain conviction of the offense char ed =. information does not char e an offense, any conviction thereunder bein void >. court has no "urisdiction )t any time before the "ud ment of conviction becomes final, the court may permit an improvident plea of uilty to be withdrawn and be substituted by a plea of not uilty. The withdrawal of a plea of uilty is not a matter of ri ht to the accused but of sound discretion to the trial court. !People vs. 8ambrino, 103 P#il. 50-*

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him if he desires the aid of an attorney9 .. ,f he desires and is unable to employ one, the court must assi n an attorney de oficio to defend him9 and =. ,f the accused desires to procure an attorney of his own, the court must rant him reasonable time therefor. S&ction :' A++ointm&nt o( couns&l d& o(icio' PURPOSE To secure to the accused, who is unable to en a e the services of an attorney of his own choice, effective representation by makin it imperative on the part of the court to consider in the appointment of counsel de oficio, the ravity of the offense and the difficulty of the 4uestions likely to arise in the case vis;N; vis the ability and e?perience of the prospective appointee. S&ction ;' Tim& (or couns&l d& o(icio to +r&+ar& (or arrai.nm&nt' )s to what is reasonable time, it depends upon the circumstances surroundin the case like the ravity of the offense, comple?ity of the alle ations in the complaint or information, whether a motion to 4uash or a bill of particulars has to be filed, and other similar considerations.

S&ction 9' Dut, o( t*& court to in(orm accus&d o( *is ri.*t to couns&l' DUTIES OF T"E COURT 6"EN T"E ACCUSED APPEARS #EFORE IT 6IT"OUT COUNSEL 1. ,t must inform the defendant that it is his ri ht to have an attorney before bein arrai ned9 +. )fter ivin him such information, the court must ask

S&ction <' #ill o( +articulars' )ccused may, )T or $&1OR& arrai nment, move for a bill of particulars to enable him properly to plead and to prepare for trial. %ust in civil cases, the bill of particulars here should be considered an inte ral part of the complaint or information which it supplements.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


16!

MEMORY AID
The remedy a ainst an indictment that fails to alle e the time of commission of the offense with sufficient definiteness is a motion for a bill of particulars, not a motion to 4uash. The failure to ask for $ill of /articulars amounts to a waiver of such ri ht. S&ction $%' Production or ins+&ction o( mat&rial &-id&nc& in +oss&ssion o( +ros&cution' S&ction $$' Sus+&nsion o( arrai.nm&nt 3ROUNDS FOR SUSPENSION 1. the accused appears to be sufferin from an unsound mental condition which effectively renders him unable to fully understand the char e a ainst him and to plead intelli ently thereto9 +. there e?ists a valid pre"udicial 4uestion9 and .. a petition for review of the resolution of the prosecutor is pendin at the 3epartment of %ustice or the Office of the /resident9 provided that the period of suspension shall not e?ceed @D days counted from the filin of the petition. RULE $$: MOTION TO QUAS" S&ction $' Tim& to mo-& to /uas*' Motion to Quas* D this presupposes that the accused hypothetically admits the facts alle ed, hence the court in resolvin the motion cannot consider facts contrary to those alle ed in the information or which do not appear on the face of the information, e?cept those admitted by the prosecution. 3ENERAL RULE! The accused may move to 4uash the complaint or information at any time $&1OR& enterin his plea.

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REMEDIAL LAW

E CEPTION D ,nstances where a motion to 4uash may be filed )1T&R plea8 1. failure to char e an offense +. lack of "urisdiction over the offense char ed .. e?tinction of the offense or penalty =. the defendant has been in former "eopardy. Motion to Quas*
filed before the defendant enters his plea 3oes not o into the merits of the case but is anchored on matters not directly related to the 4uestion of uilt or innocence of the accused Foverned by Rule 11A of the Rules of 'riminal /rocedure

D&murr&r to E-id&nc&
filed after the prosecution has rested its case based upon the inade4uacy of the evidence adduced by the prosecution in support of the accusation

overned by Rule 11C of the Rules of 'riminal /rocedure

S&ction 4' Form and cont&nts. FORM AND CONTENTS OF A MOTION TO QUAS" 1. in writin +. si ned by the accused or his counsel .. shall specify distinctly the factual and le al rounds therefor. The court shall consider no rounds other than those stated in the motion, &E'&/T lack of "urisdiction over the offense char ed and when the information does not char e an offense. ) motion to suspend the issuance of a warrant of arrest should be considered as a motion to 4uash if the alle ations therein are to the effect that the facts char ed in the information do not constitute an offense.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


165

MEMORY AID
RESOLUTION OF A MOTION TO QUAS" ) motion to 4uash must be resolved $&1OR& trial and cannot defer the hearin and determination of said motion until trial on the merits as it would impair the ri ht of the accused to speedy trial. ,t may also be resolved at the preliminary investi ation since the investi atin officer or "ud e has the power to either dismiss the case or bind the accused over for trial by the proper court, dependin on its determination of lack or presence of probable cause. S&ction 5' 3rounds' 1. That the facts char ed do not constitute an offense9 +. That the court tryin the case has no "urisdiction over the offense char ed9 .. That the court tryin the case has no "urisdiction over the person of the accused9 =. That the officer who filed the information had no authority to do so9 >. That it does not conform substantially to the prescribed form9 @. That more that one offense is char ed e?cept when a sin le punishment for various offenses is prescribed by law9 A. That the criminal action or liability has been e?tin uished9 B. That it contains averments which, if true would constitute a le al e?cuse or "ustification9 and C. That the accused has been previously convicted or ac4uitted of the offense char ed, or the case a ainst him was dismissed or otherwise terminated without his e?press consent. S&ction 7' Am&ndm&nt o( com+laint or in(ormation ,f an alle ed defect in the complaint or information, which is the basis of a motion to 4uash, can be cured by amendment, the court shall order the amendment instead of 4uashin the

IN

REMEDIAL LAW

complaint or information. ,f, after the amendment, the defect is still not cured, the motion to 4uash should be ranted. S&ction 8' E((&ct o( sustainin. t*& motion to /uas*' EFFECTS IF COURT SUSTAINS T"E MOTION TO QUAS" 1. ,f the round of the motion is either8 a* that the facts char ed do not constitute an offense9 or b* that the officer who filed the information had no authority to do so, or c* that it does not conform substantially to the prescribed form9 or d* that more than one offense is char ed, the court may order that another information be filed or an amendment thereof as the case may be within a definite period. ,f such order is 0OT ()3&, or if havin been made, another information is 0OT 1,:&3 within a time to be specified in the order, or within such time as the court may allow, the accused, if in custody, shall be dischar ed therefrom, unless he is also in custody on some other char e. 2. ,f the motion to 4uash is sustained upon any of the followin rounds8 a* that a criminal action or liability has been e?tin uished9 b* that it contains averments which, if true, would constitute a le al e?cuse or "ustification9 or c* that the accused has been previously convicted or ac4uitted of the offense char ed, the court must state, in its order rantin the motion, the release of the accused if he is in custody or the cancellation of his bond if he is on bail.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


166

MEMORY AID
3. ,f the round upon which the motion to 4uash was sustained is that the court has 0O "urisdiction over the offense, the better practice is for the court to remand or forward the case to the proper court, not to 4uash the complaint or information.

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REMEDIAL LAW

1. the motion was based on the round that the criminal action or liability has been e?tin uished, )03 +. that the accused has been previously convicted or in "eopardy of bein convicted or ac4uitted of the offense char ed. S&ction :' Form&r con-iction ac/uittalA dou=l& 1&o+ard,' or

The prosecution may elevate to the 2i her 'ourts an order rantin a motion to 4uash. PROCEDURE IF MOTION TO QUAS" IS DENIED 1. accused should plead9 +. accused should o to trial without pre"udice to the special defenses he invoked in the motion9 .. appeal from the "ud ment of conviction, if any, and interpose the denial of the motion as an error. )n order denyin a motion to 4uash is ,0T&R:O'#TOR- and 0OT )//&):)$:&. )ppeal in due time, as the proper remedy, implies a previous conviction as a result of a trial on the merits of the case and does not apply to an interlocutory order denyin a motion to 4uash. The denial by the trial court of a motion to 4uash ')00OT be the sub"ect of a petition for certiorari, prohibition or mandamus in another court of coordinate rank.

3ouble %eopardy means that when a person is char ed with an offense and the case is terminated either by ac4uittal or conviction or in any other manner without the consent of the accused, the latter cannot a ain be char ed with the same or identical offense. REQUISITES FOR DOU#LE JEOPARD0 UNDER SECTION : ,t is necessary that in the first case that; 1. the complaint or information or other formal char e was sufficient in form and substance to sustain a conviction9 +. the court had "urisdiction9 .. the accused had been arrai ned and had pleaded9 and =. he was convicted or ac4uitted or the case was dismissed without his e?press consent9 7hen all these circumstances are present, they constitute a $)R to a second prosecution for 1. the same offense, or +. an attempt to commit the said offense, or

S&ction 9' Ord&r sustainin. t*& motion to /uas* not a =ar to anot*&r +ros&cution' ) motion S#ST),0,0F the motion to 4uash is 0OT a bar to another prosecution for the same offense UNLESS!

.. a frustration of the said offense, or =. any offense which necessarily includes or is necessarily included in the first offense char ed. The dischar e of a defendant on a preliminary investi ation is 0OT such an

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


167

MEMORY AID
ad"udication in his favor as will bar subse4uent prosecution for the offense. This is because, a preliminary investi ation is not a trial and does not have for its ob"ect that of determinin definitely the uilt of the accused. 1urther, the accused ha snot yet been arrai ned. DISMISSAL -s' ACQUITTAL )c4uittal is always based on the merits, that is, the defendant is ac4uitted because the evidence does not show defendant5s uilt beyond reasonable doubt9 but 3ismissal does not decide the case on the merits or that the defendant is not uilty. ,f an act is punished by a law and an ordinance, even if they are considered as different offenses, conviction or ac4uittal under either shall constitute a bar to another prosecution for the same act. ,f a sin le act is punished by two different provisions of law or statutes, but each provision re4uires proof of an additional fact which the other does not so re4uire, neither conviction nor ac4uittal in one will bar a prosecution for the other. !Pere1 vs. Co)r o* Appeals, 163 SCRA 236* TESTS FOR DETERMININ3 6"ET"ER T"E T6O OFFENSES ARE IDENTICAL! A' SAME OFFENSE TEST ; There is ,3&0T,T- between two offenses not only when the second offense is e?actly the same as the first, but ):SO when the second offense is an attempt to or frustration of, OR is necessarily included in the offense char ed in the first information. E CEPTIONS TO T"E IDENTIT0 RULE! 1. The raver offense developed due to supervenin facts arisin from the same act or omission constitutin the former char e. +. The facts constitutin the raver char e became known or were discovered only after a plea was

IN

REMEDIAL LAW

entered in the former complaint or information. .. The plea of uilty to the lesser offense was made without the consent of the prosecutor and of the offended party9 e?cept when the offended party failed to appear durin the arrai nment. ,n any of these instances, such period of the sentence as may have been served by the accused under the former conviction shall be credited a ainst and deducted from the sentence he has to serve should he be convicted under the subse4uent prosecution. #' SAME EVIDENCE TEST ; whether the facts as alle ed in the second information, if proved, would have been sufficient to sustain the former information, or from which the accused may have been ac4uitted or convicted. S&ction ;' Pro-isional dismissal' 3ENERAL RULE! 7here the case was dismissed HprovisionallyI with the consent of the accused, he ')00OT invoke double "eopardy in another prosecution therefor OR where the case was reinstated on a motion for reconsideration by the prosecution. E CEPTIONS! 7here the dismissal was actually an ac4uittal based on8 a* lack or insufficiency of the evidence9 or b* denial of the ri ht to speedy trial, hence, even if the accused ave his e?press consent to such dismissal or moved for such dismissal, such consent would be immaterial as such dismissal is actually an ac4uittal. REQUISITES 1. consent of the prosecutor +. consent of the accused .. notice to the offended party ,f a case is provisionally dismissed with the consent of the prosecutor and the offended party, the failure to reinstate

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


168

MEMORY AID
it within the iven period will make the dismissal permanent. PERIOD FOR REINSTATEMENT! a. offenses punishable by imprisonment not e?ceedin @ years O O0& -&)R b. offenses punishable by imprisonment of more than @ years O T7O -&)RS Otherwise the dismissal shall be removed from bein provisional and becomes permanent. S&ction <' Failur& to mo-& to /uas* or to all&.& an, .round t*&r&(or' )ll rounds for a motion to 4uash are 7),6&3 if 0OT seasonably raised, E CEPT! a* when the information does not char e an offense9 b* lack of "urisdiction of the court9 c* e?tinction of the offense or penalty9 and d* double "eopardy. RULE $$; PREDTRIAL S&ction $' Pr&DtrialA criminal cas&s' mandator, in

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REMEDIAL LAW

e* modification of the order of trial if the accused admits the char e but interposes a lawful defense9 f* such matters as will promote a fair and e?peditious trial of the criminal and civil aspects of the case. !Sections. + P ., 'irc. .B; CB*. Pl&a =ar.ainin. the process whereby the accused, the offended party and the prosecution work out a mutually satisfactory disposition of the case sub"ect to court approval. ,t usually involves the defendant5s pleadin uilty to a lesser offense or to only one or some of the counts of a multi;count indictment in return for a li hter sentence than that for the raver char e. S&ction 4' Pr&Dtrial a.r&&m&nt' R&/uisit&s =&(or& t*& +r&Dtrial a.r&&m&nt can =& us&d as &-id&nc&! 1. they are reduced to writin +. the pre;trial a reement is si ned by the accused and his counsel. The re4uirement in section + is intended to safe uard the ri ht of the accused a ainst improvident or unauthorized a reements or admissions which his counsel may have entered into, or which any person may ascribe to the accused without his knowled e, as he may have waived his presence at the pre;trial conference. The omission of the si nature of the accused and his counsel, as mandatorily re4uired by the rules, renders the stipulation of facts inadmissible in evidence. S&ction 5' NonDa++&aranc& at +r&Dtrial con(&r&nc&' The court may impose proper sanctions and penalties for non;appearance at pre; trial conference by the counsel for the accused or the prosecutor without acceptable e?cuse.

/re;trial is ()03)TOR- in all criminal cases. The court shall after arrai nment and within .D days from the time the court ac4uires "urisdiction over the person of the accused, unless a shorter period is provided for by special laws or circular of the Supreme 'ourt, order a pre;trial. MATTERS CONSIDERED IN PREDTRIAL CONFERENCE a* plea bar ainin 9 b* stipulation of facts9 c* markin for identification of evidence of the parties9 d* waiver of ob"ections to admissibility of evidence9

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


16

MEMORY AID
The sanctions or penalty may be in the form of reprimand, fine or imprisonment. ,nasmuch as this is similar to indirect contempt of court, the penalty for indirect contempt may be imposed. PURPOSE To enforce the mandatory re4uirement of pre;trial in criminal cases. The accused is not the one compelled to appear, but only the counsel for the accused or the prosecutor. The principal reason why accused is not included in the mandatory appearance is the fear that to include him is to violate his constitutional ri ht to remain silent. S&ction 7' Pr&Dtrial ord&r' )fter the pre;trial, the court issues an order recitin actions taken, facts stipulated and evidence marked, and thereafter the trial on the merits will proceed on matters not disposed of durin the pre;trial. To prevent manifest in"ustice, however, the pre;trial order may be modified by the court, upon its own initiative or at the instance of any party. RULE $$< TRIAL S&ction $' Tim& to +r&+ar& (or trial' Trial ; the e?amination before a competent tribunal accordin to the laws of the land, of the facts put in issue in a case for the purpose of determinin such issue. The trial shall commence within .D days from receipt of the pre;trial order. S&ction 4' Continuous trial t&rminat&dA +ost+on&m&nts' until

IN

REMEDIAL LAW

until terminated9 but it may be postponed for a reasonable period of time for ood cause. LIMITATION OF T"E TRIAL PERIOD ,t shall in no case e?ceed 1BD days from the first day of the trial, e?cept as otherwise provided by the Supreme 'ourt. Re4uisites before a trial can be put;off on account of the absence of a witness8 1. that the witness is material and appears to the court to be so +. that the party who applies has been uilty of no ne lect .. that the witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained =. that an affidavit showin the e?istence of the above circumstances must be filed. Remedies of accused where a prosecutin officer without ood cause secures postponements of the trial of a defendant a ainst his protest beyond a reasonable period of time8 1. mandamus to compel a dismissal of the information +. if he is restrained of his liberty, by habeas corpus to obtain his freedom. The S' adopted the continuous trial system as a mode of "udicial fact;findin and ad"udication conducted with speed and dispatch so that trials are held on the scheduled dates without postponement, the factual issues for trial well;defined at pre;trial and the whole proceedin s terminated and ready for "ud ment within CD days from the date of initial hearin , unless for meritorious reasons an e?tension is permitted. The system re4uires that the /residin %ud e8 1. adhere faithfully to the session hours prescribed by laws9

CONTINUOUS TRIAL S0STEM Trial once commenced shall continue from day to day as far as practicable

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


17"

MEMORY AID
+. maintain full control of the proceedin s9 and .. effectively allocate and use time and court resources to avoid court delays. The non;appearance of the prosecution at the trial, despite due notice, "ustified a provisional dismissal or an absolute dismissal dependin upon the circumstances. S&ction 7' continuanc&' Factors (or .rantin.

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REMEDIAL LAW

PURPOSE! To control the discretion of the "ud e in the rant of continuance on his instance or on motion of any party liti ant. S&ction 8' Tim& limit (ollo)in. an ord&r (or n&) trial' The trial shall commence within .D days from the date the order for a new trial becomes final. S&ction :' Pu=lic Attorn&,Gs duti&s )*&r& accus&d is im+rison&d' These public attorneys enter their appearance in behalf of the accused upon his re4uest or that of his relative or upon bein appointed as counsel de oficio by the court. S&ction ;' Sanctions' >inds! a. criminal b. administrative c. contempt of court

and dama es, if any, arisin from the issuance of a provisional remedy in the case. .. The prosecution and the defense may, in that order, present rebuttal and sur;rebuttal evidence unless the court, in furtherance of "ustice, permits them to present additional evidence bearin upon the main issue =. #pon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to ar ue orally or to submit written memoranda. >. 7hen the accused admits the act or omission char ed in the complaint or information but interposes a lawful defense, the order of trial may be modified. 3ENERAL RULE! The order in the presentation of evidence must be followed. The accused may not be re4uired to present his evidence first before the prosecution adduces its own proof. E CEPTION! 7here a reverse procedure was adopted without the ob"ection of the defendant and such procedure did not pre"udice his substantial ri hts, the defect is not a reversible error. ) departure from the order of the trial is not reversible error as where it was a reed upon or not seasonably ob"ected to, but not where the chan e in the order of the trial was timely ob"ected by the defense. 7here the order of the trial set forth under this section was not followed by the court to the e?tent of denyin the prosecution an opportunity to present its evidence, the "ud ment is a nullity. !/eople vs. $alisacan* S&ction $4' A++lication (or &Hamination o( )itn&ss (or accus&d =&(or& trial'

S&ction $$' Ord&r o( Trial ORDER OF TRIAL! 1. The prosecution shall present evidence to prove the char e and, in the proper case, the civil liability +. The accused may present evidence to prove his defense

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


171

MEMORY AID
)ccused may have his witness e?amined conditionally in his behalf $&1OR& trial upon motion with notice to all other parties. The motion must state8 1. name and residence of witness +. substance of testimony .. witness is so sick to afford reasonable round to believe that he will not be able to attend the trial or resides more that 1DD km and has no means to attend the same, or other similar circumstances e?ist that would make him unavailable or prevent him from attendin trial. S&ction $5' EHamination o( d&(&ns& )itn&ssA *o) mad&' ,f the court is satisfied that the e?amination of witness is necessary as provided in S&'T,O0 =, order shall be made and a copy served on the fiscal. The e?amination shall be taken before any "ud e or if not practicable any member of the $ar in ood standin desi nated by the trial court, or by a lower court desi nated by a court of superior "urisdiction which issue the order. S&ction $7' #ail to s&cur& a++&aranc& o( mat&rial )itn&ss' ,f the court is satisfied, upon proof or oath, that a material witness will not testify when so re4uired, it may on motion of either party order the witness to post bail in such sum as may be deemed proper. Should the witness refuse to post such bail as re4uired, the court may commit him to prison until he complies or is le ally dischar ed after his testimony has been taken. S&ction $8' EHamination o( )itn&ss (or t*& +ros&cution' The conditional e?amination of prosecution witnesses shall be conducted before the "ud e or the court where the

IN

REMEDIAL LAW

case is pendin and in the presence of the accused, unless he waived his ri ht after reasonable notice. The accused will have the ri ht to cross;e?amine such prosecution witness, hence such statements of the prosecution witnesses may thereafter be admissible in behalf of or a ainst the accused !Re alado, p. =@D*. S&ction $9' Trial o( s&-&ral accus&d 3ENERAL RULE! 7hen two or more persons are "ointly char ed with an offense, they shall be tried "ointly. This rule is so desi ned as to preclude a wasteful e?penditure of "udicial resources and to promote an orderly and e?peditious disposition of criminal prosecutions. E CEPTION! The court, upon motion of the fiscal or of any of the defendants, may order a separate trial for one or more accused. The rantin of a separate trial when two or more defendants are "ointly char ed with an offense is purely discretionary with the trial court. The motion for separate trial must be filed BE !RE the commencement of the trial and cannot be raised for the first time on appeal. "f a separate trial is granted# the testimon$ of one accused imputing the crime to his co%accused is not admissible against the latter. "n &oint trial# it 'ould be admissible if the latter had the opportunit$ for cross%e(amination. S&ction $:' Disc*ar.& o( accus&d to =& stat& )itn&ss' (otion to dischar e should be made by the prosecution $&1OR& restin its case. REQUISITES FOR DISC"AR3E 1. absolute necessity for the testimony +. no other direct evidence available for the prosecution .. testimony can be substantially corroborated in its material points =. accused not the most uilty >. accused has never been

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


17#

MEMORY AID
convicted of an offense involvin moral turpitude )bsence of any of the re4uisites for the dischar e of a particeps criminis is a round for ob"ection to the motion for his dischar e, $#T such ob"ection must be raised $&1OR& the dischar e is ordered. EFFECTS OF DISC"AR3E 1. &vidence adduced in support of the dischar e shall automatically form part of the trial9 +. ,f the court denies the motion to dischar e the accused as state witness, his sworn statement shall be inadmissible in evidence9 .. 3ischar e of accused operates as an ac4uittal and bar to further prosecution for the same offense. E CEPTIONS! 1. ,f the accused fails or refuses to testify a ainst his co;accused in accordance with his sworn statement constitutin the basis of the dischar e +. 1ailure to testify refers e?clusively to defendant5s will or fault .. 7here an accused who turns state5s evidence on a promise of immunity but later retracts and fails to keep his part of the a reement, his confession of his participation in the commission of the crime is admissible as evidence a ainst him. S&ction $<' 6*&n mistaF& *as =&&n mad& in c*ar.in. t*& +ro+&r o((&ns&' 7hen the offense proved is neither included in, nor does it include, the offense char ed and is different therefrom, the court should dismiss the action and order the filin of a new information char in the proper offense. This rule is predicated on the fact that an accused person has the ri ht to be informed of the nature and cause of the accusation a ainst him, and to convict him of an offense different from that

IN

REMEDIAL LAW

char ed in the complaint or information would be an unauthorized denial of that ri ht. !+.S. vs. Campo, 23 P#il. 36$* S&ction 4%' A++ointm&nt o( actin. +ros&cutor' See Section >, Rule 11D. S&ction 4$' EHclusion o( t*& +u=lic' 3ENERAL RULE! The accused has the ri ht to a public trial and under ordinary circumstances, the court may not close the door of the courtroom to the eneral public. E CEPTION! 7here the evidence to be produced durin the trial is of such character as to be offensive to decency or public morals, the court may motu propio e?cludes the public from the courtroom. S&ction 44' Consolidation o( trials o( r&lat&d o((&ns&s' This contemplates a situation where separate informations are filed8 1. for offenses founded on the same facts9 +. for offenses which form part of a series of offenses of similar character S&ction 45' D&murr&r to &-id&nc&' )fter the prosecution rests its case, the court may dismiss the action on the round of insufficiency of evidence8 1. on its own initiative after ivin the prosecution the opportunity to be heard9 or +. upon demurrer to evidence filed by the accused with or without leave of court. The arrest rule allows the accused in a criminal case to present evidence even after a motion to dismiss /RO6,3&3 the demurrer was made with the e?press consent of the court. The filin of the motion to dismiss 7,T2O#T leave of court results in the submission of the case for decision on the basis of the evidence on record and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


173

MEMORY AID
does not lie from such order denyin the motion to dismiss. ,f said motion to dismiss is sustained, such dismissal bein on the merits is e4uivalent to an ac4uittal, hence the prosecution cannot appeal as it would place the accused in double "eopardy. )n order denyin a demurrer to evidence bein interlocutory is 0OT )//&):)$:&. S&ction 47' R&o+&nin.' )t any time $&1OR& finality of the "ud ment of conviction, the "ud e may, motu propio or upon motion, with hearin in either case, reopen the proceedin s to avoid miscarria e of "ustice. The proceedin s shall be terminated within .D days from the order rantin it. RULE $4% JUD3MENT S&ction $' Jud.m&ntA d&(inition and (orm' Jud.m&nt ; the ad"udication by the court that the accused is uilty or not uilty of the offense char ed and the imposition of the proper penalty and civil liability provided for by the law. ,t is not necessary that the "ud e who tried the case be the same "udicial officer to decide it. ,t is sufficient if he be apprised of the evidence already presented by a readin of the transcript of the testimonies already introduced, in the same manner as appellate courts review evidence on appeal. S&ction 4' Cont&nts o( t*& 1ud.m&nt' %ud ment must be 1. in writin 9 +. in the official lan ua e, .. personally and directly prepared and si ned by the "ud e,

IN

REMEDIAL LAW

=. with a concise statement of the fact and the law on which it is based. REMED0 IF JUD3MENT IS NOT PUT IN 6RITIN3! file a petition for mandamus to compel the "ud e to put in writin the decision of the court. ,f the "ud ment is one of 'O06,'T,O0, "ud ment must state8 1. :e al ratification of the offense constituted by the admissions of the accused and the a ravatin and miti atin circumstances attendin its commission +. /articipation of the accused, whether as principal, accomplice or accessory .. /enalty imposed upon the accused =. 'ivil liability or dama es caused by the wron ful act, unless separate civil action has been reserved or waived ,f the "ud ment is one of )'<#,TT):, it must make a findin on the civil liability of the accused, unless there is clear showin that the act from which the civil liability mi ht arise did not e?ist. R&asona=l& dou=t ; state of the case which, after full consideration of all evidence, leaves the mind of the "ud e in such a condition that he cannot say that he feels an abidin conviction, to a moral certainty, of the truth of the char e. Ac/uittal a findin of not uilty based on the merits, that is, the accused is ac4uitted because the evidence does not show that his uilt is beyond reasonable doubt, or a dismissal of the case after the prosecution has rested its case upon motion of the accused on the round that the evidence fails to show beyond reasonable doubt that the accused is uilty. ,t is well;settled that ac4uittal, in a criminal case is immediately final and e?ecutory upon its promul ation, and

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


17!

MEMORY AID
that accordin ly, the State may not seek its review without placin the accused in double "eopardy. !(arbers vs. 8ag)io, 3r., 351 SCRA 606* )n ac4uittal of an accused based on reasonable doubt 3O&S 0OT bar the offended party from filin a separate civil action based on other sources of obli ation. S&ction 5' Jud.m&nt (or t)o or mor& o((&ns&s' 7hen two or more offenses char ed in the complaint or information, and the accused fails to ob"ect to it before trial, the court may convict the accused of as many offenses as char ed and proved. )n accused can be convicted of an offense only when it is both char ed and proved. ,f it is not char ed althou h proved, OR if it is not proved althou h char ed, the accused ')00OT be convicted thereof. 6ariance between the alle ation and the proof cannot "ustify a conviction for either the offense char ed or the offense proved unless either is included in the other !Section =*. S&ction 8' 6*&n an o((&ns& includ&s or is includ&d in anot*&r' 3ENERAL RULE8 ,f what is proved by the prosecution evidence is an offense which is included in the offense char ed in the information, the accused may validly be convicted of the offense proved. E ECEPTION! 7here facts supervened after the filin of information which chan e the nature of the offense. )n offense char ed necessarily includes another when some essential elements or in redients of the offense char ed constitute the offense proved, or when the essential elements or in redients of the offense char ed constitute or form part of those constitutin the offense proved, then one offense is included in the other.

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REMEDIAL LAW

S&ction 9' Promul.ation o( 1ud.m&nt. Promul.ation o( 1ud.m&nt ; official proclamation or announcement of "ud ment. ,t consists of readin the "ud ment or sentence in the presence of the accused and any "ud e of the court renderin the "ud ment. RULES ON T"E VALIDIT0 OF PROMUL3ATION OF JUD3MENT! 1. The "ud ment must have been rendered and promul ated durin the incumbency of the "ud e who si ned it. +. The presence of counsel durin the promul ation of "ud ment is not necessary. E((&ct o( A=s&ntia available "ud ment arrest. Promul.ation o( Jud.m&nt in he shall lose all remedies in these Rules a ainst the and the court shall order his Modi(ication o(

S&ction :' 1ud.m&nt'

#pon motion of the accused, a "ud ment of conviction may be modified or set aside by the court $&1OR& it has become final or $&1OR& an appeal has been perfected. ) "ud ment becomes final8 a. when the period for perfectin appeal an appeal has lapsed9 b. when the sentence is partially or totally satisfied or served9 c. when the accused e?pressly waives in writin his ri ht to appeal9 and d. when the accused applies for probation. ) "ud ment of ac4uittal becomes final immediately after promul ation and cannot be recalled for correction or amendment. The prosecutor cannot ask for the modification or settin aside of a "ud ment of conviction because the rules

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


175

MEMORY AID
clearly provide that a "ud ment of conviction may be modified or set aside by the court renderin upon motion of the accused. The trial court can validly amend the civil portion of its decision within 1> days from promul ation thereof even thou h the appeal had in the meantime already been perfected by the accused from "ud ment of conviction. The trial court may lose "urisdiction over the "ud ment even $&1OR& the lapse of 1> days8 1. when the defendant voluntarily submits to the e?ecution of the "ud ment9 +. when the defendant perfects his appeal9 .. when the accused withdraws his appeal9 =. when the accused e?pressly waives in writin his ri ht to appeal9 >. when the accused files a petition for probation. S&ction ;' Entr, o( 1ud.m&nt' The final "ud ment of the court is carried into effect by a process called HmittimusI. Mittimus ; ) process issued by the court after conviction to carry out the final "ud ment, such as commandin a prison warden to hold the accused in accordance with the terms of the "ud ment. S&ction <' EHistin. +ro-isions .o-&rnin. sus+&nsion o( s&nt&nc&I +ro=ation and +arol& not a((&ct&d =, t*is Rul&' RULE $4$ NE6 TRIAL OR RECONSIDERATION S&ction $' N&) trial or r&consid&ration' N&) trial ; the rehearin of a case already decided but before the "ud ment of conviction therein rendered has

IN

REMEDIAL LAW

become final, whereby errors of law or irre ularities are e?pun ed from the record or new evidence is introduced, or both steps are taken. ) motion for new trial or reconsideration should be filed with the trial court within 1> days from the promul ation of the "ud ment and interrupts the period for perfectin an appeal from the time of its filin until notice of the order overrulin the motion shall have been served upon the accused or his counsel. ) motion for the reconsideration of the "ud ment may be filed in order to correct errors of law or fact in the "ud ment. ,t does not re4uire any further proceedin . ) new trial be ranted at any time before the "ud ment of conviction becomes final8 1. on motion of the accused +. on motion of the court but with the consent of the accused The award of new trial or takin of additional evidence rests upon the sound discretion of the court. !People vs. A4os a, $, P#il. 6-2* Once the appeal is perfected, the trial court steps out of the case and the appellate court steps in. Should it come to pass then that durin the pendency of the appeal, new and material evidence, for e?ample, have been discovered, the accused may file a motion for new trial with the appellate court. 'ases when the trial court lose "urisdiction over its sentence even before the lapse of 1> days8 1. 7hen the defendant voluntarily submits to the e?ecution of the sentence +. 7hen the defendant perfects his appeal. The moment the appeal is perfected the court a 4uo loses "urisdiction over it, e?cept for the purpose of correctin clerical errors.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


176

MEMORY AID
N&) Trial
1iled after "ud ment is rendered but before the finality thereof )t the instance or with the consent of the accused

IN

REMEDIAL LAW

R&o+&nin. o( t*& cas&


made by the court before the "ud ment is rendered in the e?ercise of sound discretion does not re4uire the consent of the accused9 may be at the instance of either party who can thereafter present additional evidence

otherwise has a ood cause, is pre"udiced and denied his day in court, the liti ation may be reopened to ive the client another chance to present his case. S&ction 5' 3rounds (or r&consid&ration' Frounds of motion for reconsideration 1. errors of law9 +. errors of fact in the "ud ment, which re4uire no further proceedin s. The principle underlyin this rule is to afford the trial court the opportunity to correct its own mistakes and to avoid unnecessary appeals from bein taken. The rant by the court of reconsideration should re4uire no further proceedin s, such as the takin of additional proof. S&ction 7' Form o( motion and notic& to t*& +ros&cutor' Re4uisites for a motion for new trial or reconsideration8 The motion for a new trial or reconsideration shall be8 1. in writin +. filed with the court .. State rounds on which it is based =. ,f the motion for new trial is based on a newly discovered evidence, it must be supported by the affidavits of the witness by whom such evidence is e?pected to be iven, or duly authenticated copies of documents which it is proposed to introduce in evidence. >. 0otice of the motion for new trial or reconsideration shall be iven to the fiscal. 7hile the rule re4uires that an affidavit of merits be attached to support a motion for new trial based on newly discovered evidence, yet the defect of lack of it may be cured by testimony under oath of the defendant at the hearin of the motion. !Paredes vs. (or9a, 3 SCRA -$5*

S&ction 4' 3rounds (or n&) trial' 3ROUNDS FOR A NE6 TRIAL IN CRIMINAL CASES! 1. errors of law or irre ularities committed durin the trial pre"udicial to the substantial ri hts of the accused. +. new and material evidence discovered. REQUISITES #EFORE A NE6 TRIAL MA0 #E 3RANTED ON T"E 3ROUND OF NE6L0 DISCOVERED EVIDENCE! 1. that the evidence was discovered after trial9 +. that such evidence could not have been discovered and produced at the trial even with the e?ercise of reasonable dili ence9 .. that it is material not merely cumulative, corroborative or impeachin 9 and =. the evidence is of such a wei ht that it would probably chan e the "ud ment if admitted. (istakes or errors of counsel in the conduct of his case are not rounds for new trial. This rule is the same whether the mistakes are the result of i norance, ine?perience, or incompetence. !+.S. vs. +mali, 15 P#il. 3%* ,f the incompetence, i norance or ine?perience of counsel is so reat and the error committed as a result thereof is so serious that the client, who
REMEDIAL LAW COMMITTEE

CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


177

MEMORY AID
S&ction 8' "&arin. on motion' 7here a motion for new trial calls for resolution of any 4uestion of fact, the court may hear evidence thereon by affidavits or otherwise. PURPOSE To determine whether the new trial re4uested should be ranted or not. ,t is not the new trial proper where newly discovered evidence, for e?ample will be received by the court. !/amaran, p. @DB* S&ction 9' E((&cts o( .rantin. a n&) trial or r&consid&ration' EFFECTS OF 3RANTIN3 A NE6 TRIAL OR RECONSIDERATION 1. when a new trial is ranted on the round of errors of law or irre ularities committed durin the trial, all proceedin s and evidence not affected by the commission of such errors and irre ularities shall stand, $#T those affected thereby shall be set aside and taken anew. The court may, in the interest of "ustice, allow the introduction of additional evidence. +. 7hen a new trial is ranted on the round of newly discovered evidence, the evidence already taken shall stand, and the newly discovered and such other evidence as the court may, in the interest of "ustice, allow to be introduced, shall be taken and considered to ether with the evidence already in the record. .. ,n all cases, when the court rants new trial or reconsideration, the ori inal "ud ment shall be set aside and a new "ud ment rendered accordin ly. The effect of the rantin of a new trial is not to ac4uit the accused of the crime of which the "ud ment finds him uilty, but precisely to set aside said "ud ment so that the case may be tried de novo as if no trial had been before.

IN

REMEDIAL LAW

#nlike the rule in 'ivil 'ases, the remedy of the a rieved party bein appeal in due time, an order rantin a new trial rendered in 'riminal 'ases is also interlocutory $#T is controllable by certiorari or prohibition at the instance of the prosecution. RULE $44 APPEAL S&ction $' 6*o ma, a++&al' )ny party may appeal from a "ud ment or final order, #0:&SS the accused will be placed in double "eopardy. A++&al ; a proceedin for review by which the whole case is transferred to the hi her court for a final determination )ppeal is not an inherent ri ht of convicted person. The ri ht of appeal is and always has been statutory. Only final "ud ments and orders are appealable. EFFECT OF AN APPEAL )n appeal in a criminal case opens the whole case for review and this includes the review of the penalty, indemnity, and the dama es involved. 'onse4uently, on appeal, the appellate court may increase the penalty, indemnity, or the dama es awarded by the trial court, althou h the offended party had not appealed from said award, and the party who sou ht a review of the decision was the accused. Final 1ud.m&nt
a "ud ment which would become final if no appeal is taken

Final Ord&r
disposes of the whole sub"ect matter or terminates a particular issue leavin nothin to be done but to enforce by e?ecution what has been determined

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


178

MEMORY AID
1rom a "ud ment convictin the accused, two appeals may accordin ly be taken8 1. The accused may seek a review of said "ud ment, as re ards both actions9 or +. The complainant may appeal with respect only to the civil action, either because the lower court has refused or failed to award dama es, or because the award made is unsatisfactory to him. 3ENERAL RULE! ) private prosecutor in a criminal case has 0O authority to act for the /eople of the /hilippines before a court on appeal. ,t is the overnment5s counsel, the Solicitor Feneral, who appears in criminal cases or their incidents before the Supreme 'ourt. )t the very least, the /rovincial 1iscal himself, with the conformity of the Solicitor Feneral. E CEPTION! The civil award in a criminal case may be appealed by the private prosecutor on behalf of the offended party or his successors. S&ction 4' 6*&r& to a++&al' S&ction 5' "o) a++&al taF&n' "O6 APPEAL IS TA>EN 1. )ppeal to the Re ional Trial 'ourt8 by filin a notice of appeal with the court that rendered the "ud ment or order appealed from and servin a copy to the adverse party +. )ppeal to the 'ourt of )ppeals from decision of the Re ional Trial 'ourt in the e?ercise of its ori inal "urisdiction8 by filin a notice of appeal with the court which rendered the "ud ment or order appealed from and servin a copy to the adverse party .. )ppeal to the 'ourt of )ppeals in cases decided by Re ional Trial 'ourt in the e?ercise of its appellate "urisdiction8 by petition for review

IN

REMEDIAL LAW

=. )ppeal to the 'ourt of )ppeals in cases where penalty imposed is life imprisonment or where a lesser penalty is imposed but involvin offenses committed on the same occasion or arisin out of the same occurrence that ave rise to the more serious offense for which the penalty of death or life imprisonment is imposed8 by filin a notice of appeal with the 'ourt of )ppeals. >. 3eath penalty8 automatic review by the 'ourt of )ppeals. !).(. 0o. DD;>;D.;S', October 1>, +DD=* @. Other appeals to the Supreme 'ourt8 by petition for review on certiorari. Error o( Jud.m&nt
the court may commit in the e?ercise of "urisdiction reviewable by appeal

Error o( Jurisdiction
renders an order of "ud ment void or voidable reviewable by certiorari

Mod&s o( r&-i&) The Rules of 'ourt reco nize = modes by which the decision or final order of the court may be reviewed by a hi her tribunal, viz.8 1. ordinary appeal +. petition for review .. petition for review on certiorari =. automatic appeal S&ction 7' S&r-ic& o( notic& o( a++&al' PU#LICATION OF NOTICE OF APPEAL ,f copy of the notice of appeal cannot be served on the adverse party or his counsel, it may be done by publication. Service by publication is made in a newspaper of eneral circulation in the vicinity once a week for a period not e?ceedin .D days.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


17

MEMORY AID
S&ction 8' 6ai-&r o( notic&' The appellee may waive his ri ht to a notice that an appeal has been taken. 2O7&6&R, the appellate court may, in its discretion, entertain an appeal notwithstandin failure to ive such notice if the interests of "ustice so re4uire. !8lamas vs. &os4oso, $5 P#il. %35* S&ction 9' 6*&n a++&al to =& taF&n' )n appeal must be filed within 1> days counted from the promul ation or notice of the "ud ment or order appealed from. The period for appeal is interrupted from the time the motion for new trial is filed up to the receipt by the accused of the notice of the order Hoverrulin the motionI. S&ction ;' Transmission o( +a+&rs to a++&llat& court u+on a++&al' 7ithin > days from the filin of the notice of appeal, the clerk of the court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case, to ether with said notice. S&ction $%' Transmission o( r&cords in cas& o( d&at* +&nalt,' ,n case of death penalty, the records shall be forwarded to the 'ourt of )ppeals for automatic review and "ud ment, within +D days but not earlier than 1> days after the promul ation of the h e the "ud ment or notice of denial of any motion for new trial or reconsideration. The transcript shall also be forwarded within 1D days after the filin thereof by the steno raphic reporter !).(. 0o. DD; >;D.;S', Oct. 1>, +DD=*. S&ction $4' 6it*dra)al o( a++&al'

IN

REMEDIAL LAW

)n appellant may withdraw his appeal $&1OR& the record has been forwarded by the clerk of court to the proper appellate court as provided by Section B, in which case the "ud ment shall become final. The court may also, in its discretion, allow the appellant to withdraw his appeal, /RO6,3&3 a motion to that effect is filed $&1OR& the rendition of the "ud ment in the case on appeal. Once appeal is withdrawn, the decision or "ud ment appealed from becomes at once final and e?ecutory. !People vs. D)e"o, $0 SCRA 23* S&ction $5' A++ointm&nt o( couns&l d& o(icio (or accus&d on a++&al' The ri ht to counsel de oficio does not cease upon the conviction of an accused by a trial court but continues, even durin appeal. 3uties of the clerk of the trial court to the appellant who is confined in prison upon the presentation of notice of appeal8 1. he shall ascertain from the appellant, whether he desires the 'ourt of )ppeals or the Supreme 'ourt to appoint an attorney to defend him de oficio9 +. he shall transmit with the record, upon a form to be prepared by the clerk of the appellate court, a certificate of compliance with this duty of the response of the appellant to his in4uiry. RULE $45 PROCEDURE IN T"E MUNICIPAL TRIAL COURTS S&ction $' Uni(orm Proc&dur&' Proc&dur& to =& o=s&r-&d in M&tro+olitan Trial CourtsI Munici+al Trial Courts and Munici+al Circuit Trial

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


18"

MEMORY AID
Courts! They shall observe the same procedure as in the Re ional Trial 'ourts E CEPT! 1. where a particular provision e?pressly or impliedly applies only to the (etropolitan Trial 'ourts, (unicipal Trial 'ourts and (unicipal 'ircuit Trial 'ourts or Re ional Trial 'ourts +. ,n criminal cases overned by the Rules on Summary /rocedure in Special 'ases adopted on )u ust 1, 1CB. and revised on 0ovember 1>, 1CC1. RULE $47 PROCEDURE IN T"E COURT OF APPEALS S&ction 4' A++ointm&nt o( couns&l d& o(icio (or t*& accus&d. REQUISITES #EFORE AN ACCUSED CAN #E 3IVEN A COUNSEL DE OFICIO ON APPEAL 1. that he is confined in prison +. without counsel de parte on appeal .. si ned the notice of appeal himself E CEPTIONS! )n accused;appellant not confined to prison can have a counsel de oficio if re4uested by him in the appellate court within 1D days from receipt of the notice to file brief and the ri ht thereto is established by affidavit. S&ction 5' 6*&n =ri&( (or t*& a++&llant to =& (il&d' A copies of the brief shall be filed within .D days from receipt by the appellant or his counsel of the notice from the clerk of court of the 'ourt of )ppeals that the evidence, oral and documentary, is already attached to the record. #ri&( ; literally means a short or condensed statement. The purpose of the brief is to present to the court in concise form the points and 4uestions in

IN

REMEDIAL LAW

controversy, and by fair ar ument on the facts and law of the case, to assist the court in arrivin at a "ust and proper conclusion. PURPOSE To present to the court in concise form the points and 4uestions in controversy and, by fair ar ument on the facts and law of the case, to assist the court in arrivin at a "ust and proper conclusion. S&ction 7' 6*&n =ri&( (or a++&ll&& to =& (il&dA r&+l, =ri&( o( t*& a++&llant' The appellee shall file A copies of the brief with the clerk of court within .D days from receipt of the brief of the appellant accompanied by proof of service of + copies thereof upon the appellant S&ction 8' EHt&nsion o( tim& (or (ilin. =ri&(s' 0ot allowed &E'&/T for ood and sufficient cause and only if the motion for e?tension is filed before the e?piration of the time sou ht to be e?tended. S&ction :' Cont&nts o( =ri&(s' #nlike the procedure in civil cases, it has been held that it is not essential for the accused to make assi nment of errors in his brief, as on appeal, the whole record of the case is submitted to and reviewable by the appellate court. ,ssues that were never raised in the proceedin s before the trial court cannot be considered and passed upon on appeal. S&ction ;' Dismissal o( a++&al (or a=andonm&nt or (ailur& to +ros&cut&' 3ROUNDS FOR DISMISSAL OF APPEALS 1. 1ailure on the part of the appellant to file brief within the re lementary period, e?cept when he is represented by a counsel de oficio9

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


181

MEMORY AID
+. &scape of the appellant from prison or confinement9 .. 7hen the appellant "umps bail9 and =. 1li ht of the appellant to a forei n country durin the pendency of the appeal. DISMISSAL OF APPEALA NEED OF NOTICE TO APPELLANT The 'ourt of )ppeals may dismiss motu propio or on motion by appellee an appeal for failure on the part of the appellant to file his brief on time, $#T it must have a notice served upon the appellant of the action to be taken by said court before dismissin motu propio the appeal. E((&ct o( Esca+& o( Accus&dA A=andonm&nt o( A++&als 1. ,f the convict escapes from prison or confinement or refuses to surrender to the proper authorities, "umps bail or flees to a forei n country he is deemed to have abandoned his appeal )03 the "ud ment of the court below becomes final. +. ,n that case, the accused cannot be afforded the ri ht to appeal #0:&SS !a* he voluntarily submits to the "urisdiction of the court or !b* is otherwise arrested within 1> days from notice of the "ud ment a ainst him. S&ction <' Prom+t dis+osition o( cas&s. ,t is discretionary for the appellate court whether to order a hearin of the case before it or decide the appeal solely on the evidence submitted to the trial court. ,f the 'ourt of )ppeals chose not to hear the case, the %ustices composin the division may "ust deliberate on the case, evaluate the recorded evidence on hand and then decide it.

IN

REMEDIAL LAW
not to =& &Hc&+t (or

S&ction $%' Jud.m&nt r&-&rs&d or modi(i&d su=stantial &rror'

3ENERAL RULE! The findin s of the "ud e who tried the case and heard the witnesses are not disturbed on appeal. E CEPTION! 7hen it is shown that the trial court has overlooked certain facts of substance and value that, if considered, mi ht affect the result of the case. ! People vs. Cabiling, %- SCRA 2,5* The reversal of "ud ments entered in the court below is prohibited, &E'&/T for pre"udicial error that which tends to pre"udice a substantial ri ht of a party to the proceedin s. S&ction $$' Sco+& o( Jud.m&nt' The appeal confers upon the appellate court full "urisdiction and renders it competent to e?amine the records, revise the "ud ment appealed from, increase the penalty and cite the proper provision of the law. )n invocation of the constitutional immunity from double "eopardy will not lie in case of appeal by the accused. The reason bein that when the accused appeals from the sentence of the trial court, he waives the constitutional safe uard a ainst double "eopardy and throws the whole case open to the review of the appellate court. S&ction $4' &-id&nc&' Po)&r to r&c&i-&

PURPOSE To speed up the disposition of court cases.

Ot*&r +o)&rs o( t*& Court o( A++&als! 1. to try cases and conduct hearin s9 +. receive evidence9

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


18#

MEMORY AID
.. perform any and all acts necessary to resolve factual issues raised in cases8 a. fallin under its ori inal and appellate "urisdiction9 b. includin the power to rant and conduct new trials or further proceedin s. S&ction $5' Quorum o( t*& courtA c&rtti(ication or a++&al o( cas& to t*& SC' a. 7henever the 'ourt of )ppeals finds that the penalty of death should be imposed, the court shall render "ud ment bur R&1R),0 from makin an entry of "ud ment and forthwith certify the case and elevate its entire record to the S' for review. b. ,n cases where the 'ourt of )ppeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter "ud ment imposin such penalty. The "ud ment may be appealed to the S' by notice of appeal filed with the 'ourt of )ppeals. !).(. 0o. DD;>;D.; S', Oct. 1>, +DD=* S&ction $7' Motion (or n&) trial' (otion for new trial based on 0ewly 3iscovered &vidence may be filed at any time )1T&R the appeal from the lower court has been perfected )03 $&1OR& the "ud ment of the appellate court convictin the accused becomes final. Once an appeal is perfected, the trial court steps out and the appellate court steps in. ) motion for new trial must then be filed with the appellate court, not with the court from whose "ud ment the appeal is taken. S&ction $9' R&*&arin. or r&consid&ration'

IN

REMEDIAL LAW

) motion for reconsideration shall be filed within 1> days from notice of the decision or final order of the 'ourt of )ppeals. ) re;hearin is 0OT a matter of ri ht but a privile e to be ranted or not, as the court sees fit, the matter bein solely within its discretion. 0ew 4uestions ')00OT be presented for the first time on a motion for rehearin , especially where they are inconsistent with positions taken on the ori inal hearin , or waived on the ori inal submission of the case. ) second motion for rehearin or reconsideration of a final "ud ment or order is 0OT allowed because if parties are allowed to file as many motions for rehearin or reconsideration as their discretion or caprice suits, the proceedin s would become undeterminable and unnecessarily voluminous. The (,TT,(#S is the final process of carryin into effect the decision of the appellate court and the transmittal thereof to the court of ori in is predicated upon the finality of the "ud ment. ,t shall be stayed durin the pendency of the motion for rehearin or reconsideration. ) motion for reconsideration of its "ud ment or final resolution shall be resolved by the 'ourt of )ppeals within CD days from the time it is submitted for resolution, and no +nd motion for reconsideration for the same party shall be entertained. The only;one;motion;for;reconsideration rule does not apply where the first motion for reconsideration resulted in a reversal or substantial modification of the ori inal decision or final resolution. The party adversely affected thereby may file a motion for reconsideration. S&ction $:' Jud.m&nt transmitt&d and (il&d in trial court'

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


183

MEMORY AID
Transmittal of "ud ment to court a 4uo )fter the "ud ment has been entered, a certified copy of the entry should be transmitted to the clerk of the court of ori in. The copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the "ud ment may be e?ecuted andGor placed or noted in the proper file. S&c' $;' A++lication o( c&rtain rul&s in ci-il to criminal cas&s' The correspondin amendment was made pursuant to the chan es introduced under the 1CCA Rules of /rocedure. Rul& 7: ?Annulm&nt o( Jud.m&nts o( Final Jud.m&nt and R&solutions@ DOES NOT APPL0 TO CRIMINAL CASES' T*& a++ro+riat& r&m&d, (or lacF o( 1urisdiction or &Htrinsic (raud is CERTIORARI ?Rul& 98@ or "A#EAS CORPUS ?Rul& $%4@' RULE $48 PROCEDURE IN T"E SUPREME COURT S&ction $' Uni(orm Proc&dur&' The procedure in the Supreme 'ourt in ori inal, as well as in appealed cases, is the same as in the 'ourt of appeals, &E'&/T when otherwise provided by the 'onstitution or the law. ) case may reach the Supreme 'ourt in the followin manner8 1. automatic review +. ordinary appeal .. petitioner for review on certiorari

IN

REMEDIAL LAW

) direct appeal to the Supreme 'ourt on 4uestions of law in criminal cases in which the penalty imposed is not death or life imprisonment precludes a review of the facts. 'ases involvin both 4uestions of law and fact come within the "urisdiction of the 'ourt of )ppeals. )ppeal to the S' is 0OT ) ()TT&R O1 R,F2T, but a matter of sound "udicial discretion. The prescribed mode of appeal is by certiorari. S&ction 4' R&-i&) o( d&cisions o( t*& Court o( A++&als' 3ENERAL RULE! 1indin s of fact in the ') is conclusive upon the S' E CEPTIONS! 1. when the conclusion is a findin rounded entirely on speculation, surmises or con"ectures +. when the inference made is manifestly absurd, mistaken or impossible .. when there is rave abuse of discretion in the appreciation of facts =. when the "ud ment is premised on a misapprehension of facts >. when the findin s of fact are conflictin @. when the 'ourt of )ppeals in makin its findin s went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee A. when certain material facts and circumstances had been overlooked which, if taken into account would after the result as it would ive rise to reasonable doubt to ac4uit the accused.

EFFECT OF DIRECT APPEAL TO T"E SUPREME COURT ON QUESTION OF LA6 IN CRIMINAL CASES

Qu&stion o( la) ; when the doubt or difference arises as to what the law is on a certain state of facts. ,t must not

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


18!

MEMORY AID
involve an e?amination of the probative value of the evidence presented by the liti ants or any of them. Qu&stion o( (act ; when the doubt or difference arises as to the truth or the falsehood of alle ed facts. S&ction 5' D&cision i( o+inion is &/uall, di-id&d' The Supreme 'ourt, the 'onstitution ordains, shall be composed of a 'hief %ustice and 1= associate "ustices. ,t mat sit en banc or in its discretion, in divisions of ., >, or A members !Section =!1*, )rticle 6,,,, 1CBA 'onstitution*. ) criminal case shall be reheard by the Supreme 'ourt when the 'ourt en banc is e4ually divided in opinion or the necessary ma"ority cannot be had, if no decision is reached the conviction of the lower court shall be reversed and the accused ac4uitted. )ccordin to the 'onstitution, only the Supreme 'ourt en banc may modify or reverse a doctrine or principle of law or rulin laid down by the 'ourt in a decision rendered en banc or in division. RULE $49 SEARC" AND SEICURE S&ction $' S&arc* )arrant d&(in&d' S&arc* 6arrant an order in writin issued in the name of the /eople of the /hilippines, si ned by a "ud e and directed to a peace officer commandin him to search for personal property described therein and brin it before the court. ELEMENTS OF SEARC" 6ARRANT! 1. order in writin +. si ned by the "ud e in the name of the /eople of the /hilippines .. commandin a peace officer to search personal property =. brin the property before the court

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REMEDIAL LAW

NATURE OF SEARC" 6ARRANTS Search warrants are in the nature of criminal process and may be invoked only in furtherance of public prosecutions. Search warrants have no relation to civil process or trials and are not available to individuals in the course of civil proceedin s, nor for the maintenance of any mere private ri ht. SEARC" -s' SEICURE The term search as applied to searches and seizures is an e?amination of a man5s house or other buildin s or premises or of his person with a view to the discovery of contraband or illicit or stolen property or some evidence of uilt to be used in the prosecution of a criminal action for some offense with which he is char ed. ) seizure is the physical takin of a thin into custody. 3&n&ral 6arrant E a search warrant which va uely describes and 3O&S 0OT particularize the personal properties to be seized without a definite uideline to the searchin team as to what items mi ht be lawfully seized, thus ivin the officers of the law discretion re ardin what articles they should seize. ) eneral warrant is 0OT 6):,3 as it infrin es on the constitutional mandate re4uirin particular description of the thin s to be seized. 6ARRANT OF ARREST
Order directed to the peace officer to e?ecute the warrant by takin the person stated therein into custody that he may be bound to answer for the commission of the offense. 3oes not become stale (ay be served on any

SEARC" 6ARRANT
Order in writin in the name of the R/ si ned by the "ud e and directed to the peace officer to search personal property described therein and to brin it to court. !sec. 1* validity is for 1D days only !sec. C* to be served only in

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


185

MEMORY AID
day and at any time of day or ni ht. !sec. @, rule 11.*. daytime unless the affidavit alle es that the property is on the person or in the place to be searched. !sec. B* upon probable cause to be determined personally by the "ud e after e?amination in writin and under oath in the form of searchin answers and 4uestions. Only issued if there sworn statements is a necessity of and affidavits of placin accused complainant and under immediate witnesses must be custody submitted to court.

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REMEDIAL LAW

Linds of property to be seized by virtue of a warrant8 1. sub"ect of the offense9 +. proceeds or fruits of the offense9 .. the means used or intended to be used for committin an offense. The rule does not re4uire that the property to be seized should be owned by the person a ainst whom the search warrant is directed. ,t may or may not be owned by him. ,n a search incidental to an arrest even 7,T2O#T a warrant the person arrested may be searched for8 1. dan erous weapons, and +. anythin which may be used as proof of the commission of an offense. S&ction 7' R&/uisit&s (or issuin. S&arc* )arrant' REQUISITES 1. must be issued upon probable cause9 +. probable cause must be determined by the issuin "ud e personally9 .. the "ud e must have personally e?amined, in the form of searchin 4uestions and answers, the applicant and his witnesses and taken down their written depositions9 =. the search warrant must particularly describe or identify the property to be seized as far as the circumstances will ordinarily allow9 >. the warrant issued must particularly describe the place to be searched and the persons or thin s to be seized9 @. it shall issue only for one specific purpose9 and A. it must not have been issued more than 1D days prior to the search made pursuant thereto.

T&st to d&t&rmin& Particularit, 1. 7hen the description therein as specific as the circumstances will ordinarily allow +. 7hen the description e?press a conclusion of fact; not of law which the warrant officer may be uided in makin the search and seizure. .. 7hen the thin s described are limited to those which bear direct relation to the offense for which the warrant is bein issued. E CEPTION! )0 )//:,')T,O0 1OR S&)R'2 7)RR)0T S2):: $& 1,:&3 7,T2 T2& 118 1. any court within whose territorial "urisdiction a crime was committed9 +. any court within the "udicial re ion where the crime was committed if the place of the commission of the crime is known, or any court within the "udicial re ion where the warrant shall be enforced9 .. 2O7&6&R, if the criminal action has been filed, the application shall only be made in the court where the criminal action is pendin . S&ction 5' P&rsonal +ro+&rt, to =& s&iB&d'

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


186

MEMORY AID
) search warrant shall not issue but upon probable cause in connection with one specific offense. Part, )*o ma, /u&stion -alidit, o( s&arc* and s&iBur&! 7ell settled is the rule that the le ality of a seizure can be contested only by the party whose ri hts have been impaired thereby, and that the ob"ection to an unlawful search and seizure is purely personal and cannot be availed of by third parties. REMEDIES FROM AN UNLA6FUL SEARC" 1. a motion to 4uash the search warrant, and +. a motion to suppress as evidence the ob"ects ille ally taken. !&E':#S,O0)R- R#:& any evidence obtained throu h unreasonable searches and seizures shall be inadmissible for any purpose in any proceedin * .. Replevin, if the ob"ects are le ally possessed. The remedies are alternative9 if a motion to 4uash is denied, a motion to suppress cannot be availed of subse4uently. 7here the search warrant is a /)T&0T 0#::,T-, certiorari lies to nullify the same. The ille ality of the search warrant does not call for the return of the thin s seized, the possession of which is prohibited by law. 2O7&6&R, those personalities seized in violation of the constitutional immunity whose possession is not of itself ille al or unlawful ou ht to be returned to their ri htful owner or possessor. )ny evidence obtained in violation of the constitutional immunity a ainst unreasonable searches and seizures are inadmissible for any purpose in any proceedin !Section +, )rticle ,,,, 1CBA 'onstitution*.

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REMEDIAL LAW

7hen may a search warrant be said to particularly describe the thin to be seized8 1. the description therein is as specific as the circumstances will allow9 +. when it e?presses a conclusion of fact by which the warrant may be uided9 or .. when the thin s described are limited to those which bear a direct relation to the offense for which the warrant is issued. PRO#A#LE CAUSE ; facts and circumstances which could lead a reasonable, discreet and prudent man to believe that the property sub"ect of an offense is in the place sou ht to be searched. JMULTI FACTOR #ALANCIN3 TESTJ in determinin /robable 'ause8 One which re4uires the officer to wei h the manner and intensity of the interference on the ri ht of the people, the ravity of the crime committed, and the circumstances attendin the incident. S&ction 8' EHamination o( com+lainantA r&cord' (anner on how a "ud e should e?amine a witness to determine the e?istence of probable cause8 1. the "ud e must e?amine the witnesses personally +. the e?amination must be under oath .. the e?amination must be reduced to writin in the form of searchin 4uestions and answers Such personal e?amination is necessary in order to enable the "ud e to determine the e?istence or non; e?istence of a probable cause. S&ction 9' Issuanc& and (orm or s&arc* )arrant'

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


187

MEMORY AID
ISSUANCE OF SEARC" 6ARRANT The 'onstitution ordains that no warrant shall issue but upon probable cause supported by oath or affirmation. FORM OF SEARC" 6ARRANT The search warrant must be in writin and must contain such particulars as the name of the person a ainst whom it is directed, the offense for which it was issued, the place to be searched and the specific thin s to be seized. )n application for a search warrant is heard e?;parte. ,t is neither a trial nor a part of the trial. The e?amination or investi ation, which must be under oath may not be in public. ,t may be even held in the secrecy of the chambers. ,t must be under oath and must be in writin . S&ction ;' S&arc* o( *ous&I roomI or +r&mis&s to =& mad& in +r&s&nc& o( t)o )itn&ss&s' ,n order to insure that the e?ecution of the warrant will be fair and reasonable, and in order to insure that the officer conductin the search shall 0OT e?ceed his authority or use unnecessary severity in e?ecutin the search warrant, as well as for the officer5s own protection a ainst un"ust accusations, it is re4uired that the search be conducted in the presence of the8 1. lawful occupant of the place to be searched, +. or any member of his family, .. or in their absence, in the presence of two witnesses of sufficient a e and discretion residin in the same locality. This re4uirement is mandatory. S&ction <' Tim& o( maFin. s&arc*' 3ENERAL RULE! ) search warrant must be served in the day time. E CEPTION! ) search warrant may be made at ni ht when it is positively asserted in the

IN

REMEDIAL LAW

affidavit that the property is on the person or in the place ordered to be searched !Alvares vs. C:. o* !ayabas, 6P#il. 33*. The affidavit makin such assertion must itself be sufficient as to the fact so asserted, for if the same is based upon hearsay, the eneral rule shall apply. ) search warrant conducted at ni ht without direction to that effect is an unlawful search. The same rule applies where the warrant left blank the HtimeI for makin the search. ) public officer or employee who e?ceeds his authority or uses unnecessary severity in e?ecutin the warrant is liable under )rticle 1+C of the Revised /enal 'ode. S&ction $%' )arrant' Validit, o( s&arc*

1D days from its date, thereafter, it shall be void. ) search warrant can be used only once, thereafter it becomes functus oficio. 7hile, under section 1D, a search warrant has a validity of 1D days, 0&6&RT2&:&SS, it ')00OT be used every day of said period and once articles have already been seized under said warrant, it ')00OT be used a ain for another search and seizure, &E'&/T when the search conducted on one day was interrupted, in which case the same may be continued under the same warrant the followin day if not beyond 1D day period. !+y ;#ey in vs. 0illareal, -2 P#il. ,,6* S&ction $4' D&li-&r, o( K+ro+&rt, and in-&ntor, t*&r&o( to courtA r&turn and +roc&&din.s t*&r&on' The law imposes upon the person makin the search the duty to issue a detailed receipt for the property seized. )dditionally, he is likewise re4uired to make a return of the warrant to the court which issued it, to ether with an inventory of the property seized.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


188

MEMORY AID
S&ction $5' S&arc* incid&nt to la)(ul arr&st' 6"EN MA0 T"ERE #E A SEARC" 6IT"OUT 6ARRANT 1. in times of war within the area of military operation9 +. as an incident of a lawful arrest, sub"ect to the followin re4uisites8 a. arrest must be lawful9 b. search and seizure must be contemporaneous with arrest9 c. search must be within permissible area9 !i.e. HSTO/ )03 1R,SLI search which allows a limited protective search of outer clothin for weapons* .. when there are prohibited articles open to eye and hand9 !/:),06,&7 3O'TR,0&* =. when there is consent, sub"ect to the followin conditions8 !consented search* a. there is a ri ht9 b. there must be knowled e of the e?istence of such ri ht9 c. there must be intention to waive9 >. when it is incident of inspection9 @. under the Tariff and 'ustoms 'ode for purposes of enforcin customs and tariff laws9 A. searches and seizures of vessels and aircraft9 this e?tends to the warrantless search of a motor vehicle for contraband9 Search and seizure of vessels and aircraft may validly be made without a search warrant because the vessel or aircraft can 4uickly move out of the "urisdiction before such warrant could be secured. The remedy for 4uestionin the validity of a search warrant can only be sou ht in the court that issued it, not in the sala of another "ud e of concurrent "urisdiction. &?cept where there is

IN

REMEDIAL LAW

already a case filed, the latter shall ac4uire "urisdiction to the e?clusion of other courts. Waiver of legality and admissibility Ob"ection to the le ality of the search warrant as to the admissibility of the evidence obtained or deemed waived where no ob"ection of the search warrant was raised durin the trial of the case nor to the admissibility of the evidence obtained throu h said warrant. S&ction $7' A motion to /uas* a s&arc* )arrant or to su++r&ss &-id&nc&A )*&r& to (il&' ,0 72)T 'O#RT ()- ) (OT,O0 TO <#)S2 $& 1,:&38 1. before the court that issued the warrant9 +. under the 'R,(,0): ')S& R#:&, all the incidents arisin from the Search 7arrant should be consolidated in the court where the criminal case is pendin 9 .. under the ):T&R0)T,6& R&(&3R#:&, with the court which issued the search warrant. ,n this motion, all rounds for ob"ection e?istent or available and known at the time (#ST $& ,06OL&3, otherwise, they are deemed waived. The le ality of the search warrant should be addressed to the court issuin the search warrant and not to any other court to foster "udicial stability !/a kalinawan vs. Fomez, +. S'R) 1+A>*. 1ilin of motion to 4uash is without pre"udice to any proper recourse to the appropriate hi her court by the party a rieved.

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


18

MEMORY AID
Rul& $4: PROVISIONAL REMEDIES IN CRIMINAL CASES S&ction $' A-aila=ilit, o( +ro-isional r&m&di&s' NATURE OF PROVISIONAL REMEDIES
1. Those to which parties liti ant may resort for the preservation or protection of their ri hts or interests and for no other purposes durin the pendency of the action. They are applied to a pendin liti ation for the purpose of securin the "ud ment or preservin the status 4uo, and in some cases after "ud ment, for the purpose of preservin or disposin of the sub"ect matter.

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The a rieved party in whose behalf the civil aspect of the criminal action is prosecuted may apply for the issuance of a writ of preliminary attachment, he bein the person primarily and directly interested thereby. The prosecutor in the criminal action may make such an application in behalf of or for the protection of the interest of the offended party. ,t was held by the Supreme 'ourt that the public prosecutor has the authority to apply for preliminary attachment as may be necessary to protect the interest of the offended party. Notic& to ad-&rs& +art,I not r&/uir&d 0o notice to the adverse party, or hearin on the application is re4uired before a writ of preliminary attachment may issue as a hearin would defeat the purpose of the provisional remedy. The time which such a hearin would take, could be enou h to enable the defendant to abscond or dispose of his property before a writ of attachment issue and the only re4uisites from the issuance of a writ of preliminary attachment are the affidavit and bond of applicant. !&indanao Savings, e 4. vs. Co)r o* Appeals, 1%2 SCRA -,0* )ttachment may be availed of O0:when the civil action arisin from the crime has not been e?pressly waived or not reserved and only in the followin cases8 a. when the accused is about to abscond from the /hilippines9 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 or a corporate officer or an attorney, broker, or a ent or clerk in the course of employment or by a person in a fiduciary capacity9 c. when the accused has concealed, removed or about to dispose of his property9 d. when the accused resides abroad.

+.

The re4uisites and procedure for availin of these provisional remedies shall be the same as those for civil cases. The provisional remedies under this rule are proper only where the civil action for the recovery of civil liability e? delicto has not been e?pressly waived or the ri ht to institute such civil action separately is not reserved in those cases where reservation may be made. 7here the civil action arisin from a criminal offense is suspended by the filin of the criminal action, the court wherein said civil case is pendin can issue the aforesaid au?iliary writs since such orders do not involve a determination of the merits of the case. !(abala vs. Aba"o, $0 P#il. ,2%* >inds o( +ro-isional r&m&di&s 1. attachment +. in"unction .. receivers =. delivery of personal property >. support pendente lite S&ction 4' Attac*m&nt 6*o ma, a++l, (or +r&liminar, attac*m&nt

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,

San Beda College of Law


1 "

MEMORY AID
CRIMINAL PROCEDURE! In(ormation

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REMEDIAL LAW

REPU#LIC OF T"E P"ILIPPINES


NATIONAL CAPITAL JUDICIAL RE3ION RE3IONAL TRIAL COURT MANILAI #RANC" <$$ PEOPLE OF T"E P"ILIPPINES PLAINTIFFI DVERSUSD CRIM' CASE NO' LLLLLLLLLLL "ANNA" MAE VENTURA ACCUSED'

INFORMATION4 The undersi ned accuses 2)00)2 ()& 6&0T#R) of the crime of (#R3&R ., committed as follows8 That on or about 3ecember >, +DD= =, in $atute, (anila>, /hilippines, within the "urisdiction of this court, the said accused did, then and there, with malice aforethou ht and with deliberate intent to take the life of R&0&& %O, M)$):) @, willfully, unlawfully, feloniously, suddenly, une?pectedly, and treacherously attack the latter with a metal fork, first woundin her in the back, and afterwards, when enfeebled and unable to defend herself, a ain stabbed her in the neck, both wounds bein necessarily mortal A, thereby causin the direct and immediate death of said R&0&& %O, M)$):). 'O0TR)R- TO :)7. )pril +B, +DD>. QQS d. 1iscal 2appyQQ !'ityG/rovincial 1iscal*B

0ame of the accused, Sec. A, Rule 11D. ,nformation, Sec. =, Rule 11D. . 3esi nation of the offense, Sec. B, Rule 11D. = 3ate of commission of the offense, Sec. 11, Rule 11D. > /lace of commission of the offense, Sec. 1D, Rule 11D. @ 0ame of the offended party, Sec. 1+, Rule 11D. A 'ause of the accusation, Sec. C, Rule 11D. B Subscribed by the prosecutor, Sec. =, Rule 11D.
+

REMEDIAL LAW COMMITTEE


CHAIRPERSON: Jinky Ann Uy ASST. CHAIRPERSONS: Allen Farias, Maricris Oronea E PS: Mar!essa N"ylan, C#arissi$ae %en!"ra, Jocelyn &a'ala SU(JECT HEA S: Jona O'ia )Ci*il Proce+"re,- Alnai.a Hasi$an )S/ecial Ci*il Ac!ions an+ S/ecial Procee+in0s,- Jeenice +e Sa0"n )Cri$inal Proce+"re,- Elaine Mas"ka! )E*i+ence,