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Transfer of venue of trial is done for the protection of the witnesses both for the prosecution and for the accused, and for the
orderly administration of justice.
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RA No. 6770, Sec. 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and
nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.
RA No. 6770, Sec. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to
acts or omissions which: xxxx (2) Are xxxx unfair xxxx; xxxx (6) Are otherwise irregular xxxx.
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o Is the Office of the Ombudsman a court? No, the Office of the Ombudsman is not a
court, nor a quasi-court.
o Can the Office of the Ombudsman prosecute cases within the jurisdiction of the
regular courts? Yes, the Ombudsman can prosecute cases as long as it involves a public
officer, even if the case falls before the regular courts. Besides, all prosecutors can be
appointed as Ombudsman Prosecutors.
1. The Ombudsman is mandated by law to act on all complaints against officers and
employees of the government and to enforce their administrative, civil and criminal
liability in every case where the evidence warrants. To carry out this duty, the law
allows him to utilize the personnel of his office and/or designate any fiscal, state
prosecutor or lawyer in the government service to act as special investigator or
prosecutor to assist in the investigation and prosecution of certain cases. Those
designated or deputized to assist him work under his supervision and control. The law
likewise allows him to direct the Special prosecutor to prosecute cases outside the
Sandiganbayans jurisdiction in accordance with Section 11(4c) of RA 6770. (Castro
vs. Deloria, 2009)
2. Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman "to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases." The grant of this authority does
not necessarily imply the exclusion from its jurisdiction of cases involving public
officers and employees cognizable by other courts. The exercise by the Ombudsman of
his primary jurisdiction over cases cognizable by the Sandiganbayan is not
incompatible with the discharge of his duty to investigate and prosecute other offenses
committed by public officers and employees. Indeed, it must be stressed that the
powers granted by the legislature to the Ombudsman are very broad and encompass
all kinds of malfeasance, misfeasance and non-feasance committed by public officers
and employees during their tenure of office. (Id.)
o Can the Ombudsman initiate an investigation even without a complaint? Yes, the
Ombudsman can initiate a complaint even without a complaint. Under Section 13 (1),5 Article
XI of the 1987 Constitution, the Ombudsman can investigate on its own or on complaint [even
an anonymous complaint] by any person any act or omission of any public official or
employee when such act or omission appears to be illegal, unjust, or improper. This
investigation is not for purposes of preliminary investigation, but is done only to determine,
initially, whether or not there is basis to later file a case against you.
1. Can the Office of the Ombudsman conduct preliminary investigation? Yes,
the Office of the Ombudsman can conduct preliminary investigation hence it can file
an information if it finds probable cause.
2. Can the Office of the Prosecutor initiate an investigation even without a
sworn complaint? No, the Office of the Prosecutor cannot initiate an investigation
without a sworn complaint.
Art. XI, Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on
its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient.
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other executive officials whose positions may not be of Salary Grade 27 and higher but
who are by express provision of law placed under the jurisdiction of the said court.
Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by
express provision of law. (Serana vs. Sandiganbayan, 2008).
2. Compensation is not an essential element of public office. At most, it is merely
incidental to the public office. Delegation of sovereign functions is essential in the
public office. An investment in an individual of some portion of the sovereign functions
of the government, to be exercised by him for the benefit of the public makes one a
public officer. (Id.)
o Should a private person be impleaded in a complaint against a public officer and
tried in the Sandiganbayan, or should the private person be charged separately
before the regular courts? A private individual charged together with an SG-27 public
officer or higher, or with one of the persons enumerated under PD No. 1606 must be indicted
and tried before the Sandiganbayan.
1. As long as there is an SG-27 public officer or higher impleaded in the complaint, even
private persons, and public officers with SG lower than 27 must be indicted and tried
together with the SG-27 public officer in the Sandiganbayan.
2. In case private individuals are charged as co-principals, accomplices or accessories
with the public officers or employees, including those employed in government-owned
or controlled corporations, they shall be tried jointly with said public officers and
employees in the proper courts which shall exercise exclusive jurisdiction over them.
(PD No. 1606, Sec. 4, par. 5).
Office of the Special Prosecutor
o The Office of the Special Prosecutor (OSP) is under the Office of the Ombudsman. The
Office of the Ombudsman, through the OSP, prosecutes a case before the Sandiganbayan
the OSP is the fiscal or prosecutor when it comes to the Sandiganbayan.
1. The OSPs power to conduct preliminary investigation and to prosecute is limited to
criminal cases within the jurisdiction of the Sandiganbayan. However, Ombudsman
may direct the Special Prosecutor to prosecute cases outside the Sandiganbayans
jurisdiction in accordance with Section 11 (4c) of RA 6770.
o Can the Special Prosecutor, after there is an order of amendment of the
information from the Ombudsman, file the information with the Sandiganbayan
without the approval of the Ombudsman? No, the Special Prosecutor cannot file an
information without the approval of the Ombudsman for the simple reason that the power to
file an information is lodged with the Ombudsman, and not with the OSP.
1. The OSP is merely a component of the Office of the Ombudsman and may only act
under the supervision and control, and upon authority of the Ombudsman. (Lazatin
vs. Desierto, 2009).
2. The power to prosecute carries with it the power to authorize the filing of
informations, which power had not been delegated to the OSP. (Perez vs.
Sandiganbayan, 2006).
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3. The court further held: Clearly, therefore, while the DOJ has general jurisdiction to
conduct preliminary investigation of cases involving violations of the Revised Penal
Code, this general jurisdiction cannot diminish the plenary power and primary
jurisdiction of the Ombudsman to investigate complaints specifically directed against
public officers and employees. The Office of the Ombudsman is a constitutional
creation. In contrast, the DOJ is an extension of the executive department, bereft of
the constitutional independence granted to the Ombudsman. (Id.)
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7
Rule 110, Sec. 7. The complaint or information must state the name and surname of the accused or any appellation or nickname
by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name [John Doe
for male, Jane Doe for female] with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall
be inserted in the complaint or information and record. (Annotation supplied).
Rule 110, Sec. 8. The complaint or information shall state the designation of the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the
offense, reference shall be made to the section or subsection of the statute punishing it.
8
9
Rule 110, Sec. 9. The acts or omissions complained of as constituting the offense and the qualifying and aggravating
circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in
terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and
aggravating circumstances and for the court to pronounce judgment.
Rule 110, Sec. 10. The complaint or information is sufficient if it can be understood from its allegations that the offense was
committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular
place where it was committed constitutes an essential element of the offense charged or is necessary for its identification.
10
Rule 110, Sec. 11. It is not necessary to state in the complaint or information the precise date the offense was committed
except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as
possible to the actual date of its commission.
11
Rule 110, Sec. 12. The complaint or information must state the name and surname of the person against whom or against
whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there
is no better way of identifying him, he must be described under a fictitious name.
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(a) In offenses against property, if the name of the offended party is unknown, the property must be described with such
particularity as to properly identify the offense charged.
(b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed
or ascertained, the court must cause such true name to be inserted in the complaint or information and the record.
(c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is
known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in
accordance with law.
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is that the information contains more than one (1) offense, unless the offense charged is a
complex crime, i.e. a single punishment for various offenses is prescribed by law.
o Can the information be amended? What is the reference point? Yes, an information
can be amended under Rule 110, Sec. 14. The reference point is the plea.
1. Before plea, a complaint or information can be amended, both in form and in
substance, without leave of court.
a. Downgrading of the nature of the offense can only be made before plea upon
motion, with leave of court, and with notice to the offended party.
b. Exclusion or removal of any accused from the complaint or information must
also be made before plea, upon motion, with leave of court, and with notice to
the offended party.
2. After plea, a complaint or information can only be amended, with leave of court, in
form for as long as such amendment will not prejudice the rights of the accused.
a. If the nature of the defense of the accused will vary even if the amendment is a
matter of form; or if by reason of the amendment, the offense was made graver,
then it will prejudice the rights of the accused.
o Substitution of Information (Rule 110, Sec. 14, par. 3): If it appears at any time
before judgment that a mistake has been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing of a new one charging the
proper offense in accordance with Section 19, Rule 119,13 provided the accused shall not be
placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.
1. This is not amendment. This is a situation where an information that has already been
filed will be replaced by a new information if the prosecution is convinced that they
will be unable to prove the previously filed information for as long as the accused will
not be placed in double jeopardy.
Rule 119, Sec. 19. When mistake has been made in charging the proper offense. When it becomes manifest at any
time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the
offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause
to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case
upon the filing of the proper information.
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Rule 111, Sec. 1 (b), 1st par. The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
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Rule 111, Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based
upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the
preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the
same criminal action at any time before the prosecution rests.
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Under the Local Government Code, crimes or offenses the penalty of which does not exceed one (1) year imprisonment require
prior barangay conciliation.
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Why the direct filing with the MTC? Jurisdiction of the MTC is over cases not exceeding imprisonment of six (6) years; and
since the case does not require preliminary investigation, i.e. its period of imprisonment is less than four (4) years, two (2) months,
and one (1) day, it is the MTC which has jurisdiction over the case.
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investigating officer shall resolve the complaint based on the evidence presented by
the complainant. [Rule 112, Sec. 3 (d)].
2. Preliminary investigation is only a statutory right. Even without a preliminary
investigation, the case will proceed this is what you will wish for if you are the
complainant. It is a wrong advice for you to tell your client, magtago ka muna, huwag
mong sagutin, because the proper service of subpoena is not necessary. With or
without a counter-affidavit, the Assistant Prosecutor can come up with a resolution.
Wag mong pagtaguan yan. Pinakamagaling, sumagot ka.
o The respondent within ten (10) days from receipt of the subpoena with the complaintaffidavit shall submit his sworn counter-affidavit and that of his witnesses. The respondent
shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
1. The minimum requirement of law to say that there is preliminary investigation is that
a subpoena and complaint-affidavit have been served and the respondent is given ten
(10) days to file a counter-affidavit. However, in practice and depending on the leeway
given by the prosecutor, the complainant may file a reply-affidavit, while the
respondent may file a rejoinder-affidavit, and so forth, and so on.
2. When you talk of no preliminary investigation being conducted, the process that is
followed is only up to Sec. 3 (a) of Rule 112.18 The subpoena and the complaint-affidavit
will not be issued by the Assistant Prosecutor. Forget about the counter-affidavit. The
Assistant Prosecutor prepares a resolution and makes his recommendation which will
then be elevated to the City or Provincial Prosecutor.
o After a counter-affidavit has been filed, the Assistant Prosecutor can now prepare a resolution
and make his recommendation which will then be elevated to the City or Provincial
Prosecutor.
1. If his recommendation is to file the complaint in court, he prepares an information.
2. If his recommendation is to dismiss the complaint, no information is prepared.
o Within five (5) days from the Assistant Prosecutors resolution, he shall forward the record of
the case to the City or Provincial Prosecutor or Chief State Prosecutor who shall then act on
the resolution within ten (10) days from receipt thereof and shall immediately inform the
parties of such action.
1. If the City or Provincial Prosecutor agrees with the recommendation to file the
complaint in court, he approves the resolution, and signs the information the
resolution is served upon the parties and the information is filed in court.
2. If the City or Provincial Prosecutor approves the recommendation of dismissal, the
resolution will be released to the parties.
3. If the City or Provincial Prosecutor does not agree to the recommendation of dismissal
of the Assistant Prosecutor, he can on his own prepare an information and file the
same in court, or he can require another Assistant Prosecutor to prepare an
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Rule 112, Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant
and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of
copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to
before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a
notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
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information and file the same in court without conducting another preliminary
investigation.
o Can an Assistant Prosecutor, upon finding of the existence or non-existence of
probable cause, file or dismiss the case? No, he cannot file nor dismiss the case on his
own. An Assistant Prosecutor can only act if his recommendation is approved by the City or
Provincial Prosecutor. An Assistant Prosecutors recommendation has no value if not
approved by the City or Provincial Prosecutor. There is no exception to this rule.
o Where do you go if you do not agree with the finding of the City or Provincial
Prosecutor? An aggrieved party may go to the Department of Justice (DOJ) under DOJ
Circular No. 70, Sec. 4.19
1. The petition for review must be filed within a period of fifteen (15) days from receipt
of the resolution or of the denial of the motion for reconsideration if one has been filed
within fifteen (15) days from receipt of the assailed resolution.
2. If upon petition by a proper party under such rules as the Department of Justice may
prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution
of the provincial or city prosecutor or chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal of the complaint
or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. [Rule 112,
Sec. 4, par. (5)].
3. Only decisions or resolutions that went through preliminary investigation or reinvestigation can be reviewed by the DOJ. If the case was not subjected to preliminary
investigation, you cannot elevate it to the DOJ, e.g. a BP 22 case is subject to summary
procedure - it is not subject to preliminary investigation, hence you cannot elevate it
to the DOJ for review.
o Does the record of preliminary investigation form part of the record of the case?
No, the record of the preliminary investigation does not form part of the record of the case.
Only the affidavits and the counter-affidavits, together with the information, will form part
of the records elevated to the court.20
Duty to Prosecute
o As a general rule, all criminal actions shall be prosecuted under the control and direction of
the public prosecutor. No proceedings in trial shall proceed without the presence of the
public prosecutor.
1. If the schedule of the public prosecutor does not permit, however, or in case there are
no public prosecutors, a private prosecutor may be authorized in writing by the Chief
of the Prosecution Office or the Regional State Prosecution Office to prosecute the
case, subject to the approval of the court.
DOJ Circular No. 70, Sec. 4: An aggrieved party may appeal by filing a verified petition for review with the Office of the
Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the
appealed resolution.
19
Rule 112, Sec. 7 (b). Record of preliminary investigation. The record of the preliminary investigation conducted by a
prosecutor or other officers as may be authorized by law shall not form part of the record of the case. However, the court, on its
own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution
of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party.
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2. Once so authorized, the private prosecutor shall continue to prosecute the case until
the termination of the trial even in the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn.
o Should the presentation of evidence by the defense be declared null and void in
the absence of the public prosecutor despite the fact that the public prosecutor
has already completed the presentation of evidence of the prosecution? Yes, the
presentation of the evidence of the defense is null and void it being conducted in the absence
of the public prosecutor.
1. Even though the public prosecutor has completed the presentation of the evidence of
the prosecution, it is he who should raise objections to the presentation of the evidence
of the defense, i.e. whether the evidence presented is admissible or not. Hence, his
presence is indispensable. Any proceedings conducted in the absence of the public
prosecutor is null and void.
2. Respondents act of allowing the presentation of the defense witnesses in the absence
of complainant public prosecutor or a private prosecutor designated for the purpose is
thus a clear transgression of the Rules which could not be rectified by subsequently
giving the prosecution a chance to cross-examine the witnesses. Respondents
intention to uphold the right of the accused to a speedy disposition of the case, no
matter how noble it may be, cannot justify a breach of the Rules. If the accused is
entitled to due process, so is the State. (State Prosecutor vs. Judge Ayco, 2005).
o Can a minor institute an action by himself? Yes, a minor, by himself, can institute an
action involving seduction, abduction and acts of lasciviousness. The offended party, even
if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and
acts of lasciviousness, independently of her parents, grandparents, or guardian, unless she is
incompetent or incapable of doing so [Rule 110, Sec. 5, par. (4)].
1. Where the offended party, who is a minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to file the action granted to
parents, grandparents, or guardian shall be exclusive of all other persons and shall be
exercised successively in the order herein provided (Id.)
o In the crimes of adultery and concubinage,21 the rule is you always have to implead not
only the offending spouse, but also the paramour, unless of course, the offenders have been
pardoned by the offended party, or the offended party consented to the crime.
1. The requirement that both the offending spouse and the paramour be impleaded will
not apply if one of the offenders has died, or that the paramour is not aware that there
is in fact a pre-existing marriage.
o In the crime of defamation22 in connection with CASAA,23 only the offended party
can institute the action.
Rule 110, Sec. 5, par. (2). The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive,
nor, in any case, if the offended party has consented to the offense or pardoned the offenders.
21
Rule 110, Sec. 5, par. (5). No criminal action for defamation which consists in the imputation of any of the offenses mentioned
above shall be brought except at the instance of and upon complaint filed by the offended party.
22
College of Arts and Sciences Alumni Association Food Center, UP Diliman, Q.C. .
CASAA stands for the private crimes of: Concubinage, Adultery, Seduction, Abduction and, Acts of Lasciviousness.
23
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Rule 113, Sec. 5 (a): When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
Rule 113, Sec. 5 (b): When an offense has just been committed and he has probable cause to believe based on personal
knowledge of facts or circumstances that the person to be arrested has committed it;
Rule 113, Sec. 5 (c): When the person to be arrested is a prisoner who has escaped from a penal establishment or
place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
Rule 113, Sec. 13: If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake
him [together with the rescuer] without a warrant at any time and in any place within the Philippines.
Rule 114, Sec. 23, par. (2): An accused released on bail may be re-arrested without the necessity of a warrant if he
attempts to depart from the Philippines without permission of the court where the case is pending.
The release mentioned herein does not mean dismissal of the case you are only released for further preliminary investigation,
which means that you have to go through the procedure for regular preliminary investigation outlined in Rule 112, Sec. 3. The
sworn arrest report will be equivalent to a complaint-affidavit filed by the arresting officer.
25
The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends
with either the prompt filing of an information in court or the immediate release of the arrested person. Notably, the rules on
inquest do not provide for a motion for reconsideration. Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in cases subject of inquest. (Leviste vs. Alameda, 2010).
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liberty; or you can avail of preliminary investigation, provided you duly sign a waiver
of any objection against delay in his delivery to the proper judicial authorities under
Article 125 of the Revised Penal Code this is for the protection of the police officers
because you will be detained without a charge.
2. After the complaint or information is filed in court, you can apply for bail; or within
five (5) days from the time you learn of its filing, you can ask for a preliminary
investigation by filing a motion for re-investigation. For all intents and purposes,
you are simply asking for preliminary investigation. What you are praying for in your
motion is the return of the records to the Office of the Prosecutor for preliminary
investigation in accordance with Rule 112, Sec. 3.
o Is the legality of a warrantless arrest jurisdictional? A warrantless arrest is not a
jurisdictional defect and any objection to it is waived when the person arrested submits to
arraignment without any objection, as in this case. Accused-appellants are questioning their
arrest for the first time on appeal and are, therefore, deemed to have waived their right to the
constitutional protection against illegal arrests and searches. (People vs. Aminola, 2010).
1. An application for or admission to bail shall not bar the accused from challenging the
validity of his arrest or the legality of the warrant issued therefor, or from assailing
the regularity or questioning the absence of a preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The court shall
resolve the matter as early as practicable, but not later than the start of the trial of the
case. (Rule 114, Sec. 26).
Rule 114, Sec. 17 (c): Any person in custody who is not yet charged in court may apply for bail with any court in the province,
city or municipality where he is held.
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28
Corporate surety or bail bond furnished by a surety (bonding) company accredited by the Supreme Court. If the recommended
bail is PhP 100K, you do not post that amount what you will pay is the premium for the service of the bonding company.
The court allows a property bond subject the requirement that the owner of the property is a resident of the PH, but it is the
duty of the accused to cause the annotation of the property bond within a period of ten (10) days from issuance of the order.
29
30
When you talk of recognizance, there is no money involved. It is simply the character of a person who commits your appearance
in court.
31
Rule 114, Sec. 5, par. 3: If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall
be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or
other similar circumstances:
32
(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance
of reiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation, parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability of flight if released on bail; or
(e) That there is undue risk that he may commit another crime during the pendency of the appeal.
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2. If any of the enumerated circumstances under Rule 114, Sec. 5, par. 3 is present, bail
is no longer a matter of discretion bail shall be denied. (Leviste vs. Court of Appeals,
2010).
o Non-bailable offenses:33
1. It is a misconception that when an accused is charged with the crime of murder, he is
not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail
to an accused charged with an offense that carries with it the penalty of reclusion
perpetua xxx is discretionary on the part of the trial court. In other words, accused is
still entitled to bail but no longer "as a matter of right." Instead, it is discretionary and
calls for a judicial determination that the evidence of guilt is not strong in order to
grant bail. The prosecution is accorded ample opportunity to present evidence because
by the very nature of deciding applications for bail, it is on the basis of such evidence
that judicial discretion is weighed in determining whether the guilt of the accused is
strong. (San Miguel vs. Maceda, 2007).
2. Where bail is a matter of right and prior absconding and forfeiture is not excepted
from such right, bail must be allowed irrespective of such circumstance. The existence
of a high degree of probability that the defendant will abscond confers upon the court
no greater discretion than to increase the bond to such an amount as would reasonably
tend to assure the presence of the defendant when it is wanted, such amount to be
subject, of course, to the other provision that excessive bail shall not be required. (Id.)
3. Irrefragably, a person charged with a capital offense is not absolutely denied the
opportunity to obtain provisional liberty on bail pending the judgment of his case.
However, as to such person, bail is not a matter of right but is discretionary upon the
court. Had the rule been otherwise, the Rules would not have provided for an
application for bail by a person charged with a capital offense under Rule 114, Section
8. (Serapio vs. Sandiganbayan, 2003).
4. Under Rule 114, Sec. 8,34 there must be a showing that the evidence of guilt against a
person charged with a capital offense is not strong for the court to grant him bail. Thus,
upon an application for bail by the person charged with a capital offense, a hearing
thereon must be conducted, where the prosecution must be accorded an opportunity
to discharge its burden of proving that the evidence of guilt against an accused is
strong. The prosecution shall be accorded the opportunity to present all the evidence
it may deems necessary for this purpose. When it is satisfactorily demonstrated that
the evidence of guilt is strong, it is the courts duty to deny the application for bail.
However, when the evidence of guilt is not strong, bail becomes a matter of right. (Id.)
o What is your remedy if you were charged with a non-bailable offense and was
thereafter detained? Your remedy is to file a petition for bail wherein you have to
convince the court that the evidence against you is not strong. If the court is convinced that
the evidence against you is not strong, the court will release you on bail during the pendency
of the action.
o What is the nature of proceedings in a petition for bail? The proceedings are
summary in nature, meaning such brief and speedy method of receiving and considering the
Rule 114, Sec. 7: No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment,
shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.
33
Rule 114, Sec. 8: At the hearing of an application for bail filed by a person who is in custody for the commission of an offense
punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is
strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion
of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or
otherwise unable to testify.
34
jjsummer&rain#foursisons2015-0156
evidence of guilt as is practicable and consistent with the purpose of the hearing which is
merely to determine the weight of evidence for purposes of bail. (Serapio vs. Sandiganbayan,
2003).
1. The court does not try the merits or enter into any inquiry as to the weight that ought
to be given to the evidence against the accused, nor will it speculate on the outcome of
the trial or on what further evidence may be offered therein. It may confine itself to
receiving such evidence as has reference to substantial matters, avoiding unnecessary
thoroughness in the examination and cross-examination of witnesses, and reducing to
a reasonable minimum the amount of corroboration particularly on details that are
not essential to the purpose of the hearing. (Id.)
o Can there be joint bail hearings in a petition for bail? Yes, there can be joint bail
hearings. Joint bail hearings will save the court from having to hear the same witnesses and
the parties from presenting the same evidence where it would allow separate bail hearings for
the accused who are charged as co-conspirators in the crime. (Id.)
1. The matter of whether or not to conduct a joint hearing of two or more petitions for
bail filed by two different accused or to conduct a hearing of said petition jointly with
the trial against another accused is addressed to the sound discretion of the trial
court. (Id.)
2. However, in the cases at bar, the joinder of the hearings of the petition for bail of
petitioner with the trial of the case against former President Joseph E. Estrada is an
entirely different matter. For, with the participation of the former president in the
hearing of petitioners petition for bail, the proceeding assumes a completely different
dimension. The proceedings will no longer be summary. As against former President
Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the
nature of a bail hearing. (Id.)
o Can a person detained for a non-bailable offense be released upon issuance of a
custody receipt? No, a person detained cannot be released upon issuance of a mere custody
receipt. Rule 114, Sec. 3 is explicit in stating that: No person under detention by legal process
shall be released or transferred except upon order of the court or when he is admitted to bail.
1. It is undisputed that accused were charged with a non-bailable offense; that they were
released from detention on the basis merely of the Custody Receipt signed by the
respondent, which was a clear violation of Section 3, Rule 114 of the Rules of Court
which explicitly provides that no person under detention by legal process shall be
released or transferred except upon order of the court or when he is admitted to bail.
As a court employee, respondent is cognizant of this requirement as in fact he admitted
in his Comment that a motion for temporary release should have been filed in court.
(Orbe vs. Digandang, 2009)
o Can the court grant a petition for bail without giving the prosecution the
opportunity to be heard or comment? No, the court cannot grant a petition for bail
without giving the prosecution an opportunity to discharge its burden of proving that the
evidence of guilt against the accused is strong. If the court grants the petition for bail without
allowing the prosecution to present its side, the proceedings will be null and void, and any
order will also be null and void.
1. A hearing is indispensable for the court to ask searching questions from which it may
infer the strength of the evidence of guilt, or the lack of it, against the accused, in cases
where the offense is punishable by death, reclusion perpetua or life imprisonment.
(Domingo vs. Executive Judge, 2003).
jjsummer&rain#foursisons2015-0157
2. After hearing, the courts order granting or refusing bail must contain a summary of
the evidence for the prosecution and based thereon, the judge should then formulate
his own conclusion as to whether the evidence so presented is strong enough as to
indicate the guilt of the accused. Otherwise, the order granting or denying the
application for bail may be invalidated because the summary of evidence for the
prosecution which contains the judges evaluation of the evidence may be considered
as an aspect of procedural due process for both the prosecution and the defense. (Id.)
3. The manifestation of the prosecutor that he is not ready to present any witness to
prove that the prosecutions evidence against the accused is strong, is never a basis for
the outright grant of bail without a preliminary hearing on the matter. A hearing is
required even when the prosecution refuses to adduce evidence or fails to interpose an
objection to the motion for bail. (Id.)
o Can you still apply for bail if an accused is already convicted of a non-bailable
offense? No, you can no longer apply for bail since there is already a conviction clearly,
the evidence of guilt is strong.
o Can you still apply for bail if the conviction for a bailable offense has already
become final and executory? No, you can no longer apply for bail after a judgment of
conviction has become final and executory.35 You are instead required to serve sentence.
1. But even if there is already a judgment, but before it becomes final and executory, you
can apply for probation to be allowed temporary liberty on bail or based on your
original bail if you have an existing bail, or you can be released on recognizance.
o What happens to a pending case where the accused has suffered the maximum
imprisonment prescribed for the offense charged if and when he is held to be
liable? The case will not be dismissed, but the accused will be immediately released without
prejudice to the continuation of the trial or the proceedings on appeal.36
1. However, in practice, the accused will just change his plea from not guilty to guilty
since he has already served the maximum penalty for the offense charged in order that
the proceedings be immediately terminated and he be immediately released. In cases
like this, the truth is the offended party can no longer be located that is why the
pending case lingered for a number of years. The proper procedure should have been
to allow the hearing of the case to be rescheduled at least two (2) or three (3) times,
and then file a motion to dismiss on the ground of violation of the accuseds right to
speedy trial.
Rule 114, Sec. 24. No bail after final judgment; exception. No bail shall be allowed after a judgment of conviction has
become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When
no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a
responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.
35
Rule 114, Sec. 16. Bail, when not required; reduced bail or recognizance. No bail shall be required when the law or
these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment
prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the
proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after
thirty (30) days of preventive imprisonment.
36
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged,
without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on
his own recognizance, at the discretion of the court.
jjsummer&rain#foursisons2015-0158
Id.
Rule 114, Sec. 17 (a): Bail in the amount fixed may be filed with the court where the case is pending, or, in the absence or
unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge in the province, city, or municipality. If the accused is arrested in a province, city, or municipality other than where the
case is pending, bail may also be filed with any regional trial court of said place, or if no judge thereof is available, with any
metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein.
38
Rule 114, Sec. 17 (b): Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance,
the application may be filed only in the court where the case is pending, on trial or appeal.
39
Rule 114, Sec. 17 (c): Any person in custody who is not yet charged in court may apply for bail with any court in the province,
city or municipality where he is held.
40
Rule 114, Sec. 21. Forfeiture of bail. When the presence of the accused is required by the court or these Rules, his
bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as
41
jjsummer&rain#foursisons2015-0159
for under the Rules. However, in practice, the public prosecutor, upon the absence of
the accused, immediately moves for the issuance of a warrant of arrest against the
accused and the forfeiture of the bail bond in favor of the government.
2. A bail may be cancelled if there is no need for it anymore. It is automatically cancelled
upon acquittal, conviction, or dismissal of the case. It may also be cancelled upon
motion if the accused surrenders, or if he dies.42
required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and
to show cause why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen
must:
(a) Produce the body of their principal or give the reason for his non-production; and
(b) Explain why the accused did not appear before the court when first required to do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the
bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is
acquitted.
Rule 114, Sec. 22. Cancellation of bail. Upon application of the bondsmen, with due notice to the prosecutor, the bail
may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon
acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall
be without prejudice to any liability on the bail.
42
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jjsummer&rain#foursisons2015-0161
jjsummer&rain#foursisons2015-0162
jjsummer&rain#foursisons2015-0163
based on independent evidence proving the commission of the crime by the accused.
(People vs. Gambao, 2013).
o Is a hearing for a plea of guilty to a non-capital offense required? No, a hearing is
generally not required for a plea of guilty to a non-capital offense. A hearing is only required
if necessary to determine the exact penalty to be imposed on the accused. If the judge knows
the penalty, there is no need to conduct a hearing.
o Is a hearing for a plea of guilty to a capital offense required? Yes, trial will proceed
even if the accused pleads guilty to a capital offense. The court shall conduct a searching
inquiry into the voluntariness and full comprehension of the consequences of his plea and
shall require the prosecution to prove his guilt and the precise degree of culpability. The
accused may present evidence in his behalf.
o What will happen to the criminal case if the victim dies after the accused was
arraigned? The case will proceed. It is only the victim that died a witness of the state. It
is when the accused died that the criminal case shall be dismissed.
o Can the trial court appoint a counsel de oficio for purposes of arraignment? For
the entire trial? Yes, the trial court can appoint a counsel de oficio for purposes of
arraignment and for the duration of the trial.
o Can the Court of Appeals appoint a counsel de oficio? Yes, under Rule 122, Sec. 13,43
and Rule 124, Sec. 2,44 the Court of Appeals can appoint a counsel de oficio.
Rule 122, Sec. 13. Appointment of counsel de oficio for accused on appeal. It shall be the duty of the clerk of court
of the trial court, upon filing of a notice of appeal, to ascertain from the appellant, if confined in prison, whether he desires the
Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de oficio to defend him and to transmit with the
record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the
response of the appellant to his inquiry.
43
Rule 124, Sec. 2. Appointment of counsel de oficio for the accused. If it appears from the record of the case as
transmitted that (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of
appeal himself, the clerk of court of the Court of Appeals shall designate a counsel de oficio.
44
An appellant who is not confined in prison may, upon request, be assigned a counsel de oficio within ten (10) days from receipt of
the notice to file brief and he establishes his right thereto.
jjsummer&rain#foursisons2015-0164
Rule 117, Sec. 8. Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of
the accused and with notice to the offended party.
45
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both,
shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses
punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived.
jjsummer&rain#foursisons2015-0165
o Can a defective information be dismissed outright by the court? No, the court
cannot dismiss outright a defective information. If the alleged defect of the complaint or
information which can be cured by amendment, the court shall order that an amendment be
made.
1. If the motion to quash is based on the ground that the facts charged do not constitute
an offense, the prosecution shall be given by the court an opportunity to correct the
defect by amendment.
2. But if the prosecution fails to make the amendment, or the complaint or information
still suffers from the same defect despite the amendment, the motion to quash shall be
granted.
o Double Jeopardy, requisites of:
1.
2.
3.
4.
jjsummer&rain#foursisons2015-0166
A.M. No. 03-1-09-SC (Re: Proposed Rule on Guidelines to be Observed by Trial Court Judges and Clerks of Court in the Conduct
of Pre-Trial and Use of Deposition-Discovery Measures).
46
jjsummer&rain#foursisons2015-0167
jjsummer&rain#foursisons2015-0168
o Do you need leave of court to file a demurrer to evidence? In criminal cases, you
may file a demurrer to evidence with or without leave, but you must live with the
consequences.
1. If the demurrer is filed with leave of court, and the demurrer is denied, you could still
present evidence. If the demurrer is filed without leave of court, and the demurrer is
denied, the court could already render a judgment.
2. In civil cases, there is no need for a leave of court to file a demurrer to evidence.
o What is the effect of a grant or denial of a demurrer to evidence in criminal
cases?
1. If the demurrer is granted, such grant amounts to an acquittal. The general rule is that
an acquittal is a final determination of the case you cannot file a motion for
reconsideration nor an appeal.
2. If the demurrer is denied, the effect of the denial depends on whether the demurrer
was filed with leave of court, or without leave of court. You cannot file an appeal or a
certiorari until after the termination of the case.
o The general rule in criminal cases is that any dismissal prompted by the accused or with the
express consent of the accused, will not lead to double jeopardy. The exceptions to this rule
are (1) demurrer to evidence, and (2) dismissal on the ground of speedy trial.
o Can a denial of a demurrer to evidence be the subject of a petition for certiorari
or an appeal? No, a denial of demurrer to evidence in criminal cases cannot be the subject
of a certiorari or an appeal. (Rule 119, Sec. 23, par. 5).
Discharge under the Rule 119, Sec. 17, and
Exclusion under the Witness Protection Program47
o Under Rule 119, Sec. 17, the information filed in court includes the name of the accusedto-be-discharged who has been arraigned. The accused files an affidavit to support his
application to be discharged as a state witness at any time before the prosecution rests its
case.
1. If the application to be discharged as a state witness has been granted, such grant
shall amount to an acquittal of the discharged accused and shall be a bar to future
prosecution for the same offense, unless the accused fails or refuses to testify against
his co-accused in accordance with his sworn statement constituting the basis for his
discharge. (Rule 119, Sec. 18) Evidence adduced in support of the discharge shall
automatically form part of the trial.
2. If the court denies the motion for discharge of the accused as state witness, his sworn
statement shall be inadmissible in evidence. (Rule 119, Sec. 17, par. 7, 2nd sentence).
47
The requisites under Rule 119, Sec. 17, and under the Witness Protection Program is the same, viz:
(a) There is absolute necessity for the testimony of the accused whose discharge is requested;
(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of
said accused;
(c) The testimony of said accused can be substantially corroborated in its material points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral turpitude.
jjsummer&rain#foursisons2015-0169
o Under the Witness Protection Program, the excluded accused will not be included by
the DOJ in the information the excluded accused will not be arraigned.
1. The excluded accused, in case he is subsequently charged because he has changed his
testimony, cannot invoke the rule on double-jeopardy. There is nothing that prevents
the prosecution from suing the excluded accused because there is no valid information
against him filed in a court of competent jurisdiction, no arraignment, and no plea.
o Can an uncorroborated testimony of a state witness based on circumstantial
evidence be a basis of conviction? No, an uncorroborated testimony based on
circumstantial evidence cannot be the basis of a conviction. Corroboration of the account of
the state witness is key. It is in fact a requirement for the discharge of an accused to be a state
witness under Section 17, Rule 119 of the Rules of Court that the testimony to be given can be
substantially corroborated in its material points. (People vs. Anabe, 2010). This is the
general rule.
1. The Court is not unaware that as an exception to the general rule requiring
corroboration, the uncorroborated testimony of a state witness may be sufficient when
it is shown to be sincere in itself because it is given unhesitatingly and in a
straightforward manner and full of details which, by their nature, could not have been
the result of deliberate afterthought. This exception, however, applies only if the state
witness is an eyewitness since the testimony would then be direct evidence. (Id.)
2. Where, as here, the state witness is not an eyewitness, the testimony partakes of the
nature of circumstantial evidence. The rule on circumstantial evidence thus applies. If
the testimony is uncorroborated, it does not suffice. It cannot merit full credence.
Again, the rule on circumstantial evidence requires that, among other things, there is
more than one circumstance and the combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt. The circumstantial evidence suffices
to convict an accused of the crime charged only if the circumstances proven constitute
an unbroken chain which leads to one fair and reasonable conclusion pointing to the
accused, to the exclusion of all others, as the guilty person. (Id.)
o Can a criminal case be reopened? Yes, a criminal case can be reopened, motu proprio
or upon motion, even if a judgment has been rendered for as long as the motion to reopen is
filed within the reglementary period, i.e. before the finality of the judgment of conviction.
1. But if the party has not yet submitted his formal offer of evidence, there can be no
reopening of the case because the presentation of evidence has not been terminated.
At best, what could happen is a recall of the witness or a further presentation of
evidence, which is left to the sound discretion of the court.
jjsummer&rain#foursisons2015-0170
jjsummer&rain#foursisons2015-0171
o Can you appeal an acquittal? No, as a general rule, you cannot appeal an acquittal. But
there is an exception, i.e. when the acquittal is tainted with grave abuse of discretion
amounting to lack or excess of jurisdiction, in which case your remedy is a petition for
certiorari under Rule 65, with the conformity of the Solicitor-General.
1. An acquittal, whether ordered by the trial or appellate court, is final and unappealable
on the ground of double jeopardy. The only exception is when the trial court acted with
grave abuse of discretion or, as we held in Galman v. Sandiganbayan (1986), when
there was mistrial. In such instances, the OSG can assail the said judgment in a petition
for certiorari establishing that the State was deprived of a fair opportunity to prosecute
and prove its case. The rationale behind this exception is that a judgment rendered by
the trial court with grave abuse of discretion was issued without jurisdiction. It is, for
this reason, void. Consequently, there is no double jeopardy. (Lejano vs. People,
2011).
2. In order that a judgment or order of acquittal may be successfully challenged in a
petition for certiorari under Rule 65, the petitioner must prove that the trial court, in
acquitting the accused, committed not merely errors of judgment, but grave abuse of
discretion amounting to lack or excess of jurisdiction. No such grave abuse of
discretion can be attributed to respondent Judge in dismissing the instant cases for
the denial of private respondents' right to speedy trial. (People vs. Hernandez, 2006).
o When there is variance between the offense charged in the complaint or information and
that proved, and the offense as charged is included in or necessarily includes the offense
proved, the accused shall be convicted of the offense proved which is included in the offense
charged, or of the offense charged which is included in the offense proved. (Rule 120, Sec. 4)
jjsummer&rain#foursisons2015-0172
48
Rule
Rule
Rule
Rule
Rule
121:
122:
123:
124:
125:
49
Rule 122, Sec. 3 (a): The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or
final order appealed from and by serving a copy thereof upon the adverse party.
50
Rule 122, Sec. 3 (b): The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review under Rule 42.
A Petition for Review under Rule 42 is used to correct errors of judgment. You have a reglementary period of fifteen (15) days to
file an appeal, extendible to a period of another fifteen (15) days for as long as you pay docket fees within the reglementary period.
You cannot ask for another extension of time, except for the most compelling reason; there is no Rule 43 equivalent in criminal
procedure because a quasi-judicial agency has no power to entertain a criminal case.
Rule 45, Sec. 9. Rule applicable to both civil and criminal cases. The mode of appeal prescribed in this Rule shall be
applicable to both civil and criminal cases, except in criminal cases where the penalty imposed is death, reclusion perpetua or life
imprisonment.
51
jjsummer&rain#foursisons2015-0173
o What are your remedies from a judgment of conviction rendered by the MTC?
1. You can file a motion for reconsideration or a motion for new trial under Rule 121 if
there are grounds for reconsideration or new trial, unless the motions for
reconsideration or new trial are prohibited, e.g. Summary Procedure; or
2. You can appeal the judgment to the RTC by filing a notice of appeal with the MTC
under Rule 122, Sec. 3 (a) within the reglementary period, and by serving a copy
thereof upon the adverse party. In the RTCs exercise of its appellate jurisdiction, the
parties are required to submit a memoranda to be filed within a period of fifteen (15)
days.52
3. If the RTC affirms the judgment of conviction, you can appeal the judgment to the
Court of Appeals by filing a petition for review under Rule 42 within the reglementary
period and by serving a copy thereof upon the adverse party.53 In the Court of Appeals,
what is required to be submitted is an appellants or an appellees brief to be filed
within a period of thirty (30) days. The appellant's reply brief may be filed within
twenty (20) days from receipt of appellee's brief.54
4. If the Court of Appeals affirms the judgment of conviction, you can appeal the
judgment to the Supreme Court by filing a petition for review on certiorari under Rule
45.55
o What are your remedies from a judgment of conviction rendered by the RTC,
but not imposing the penalty of death, life imprisonment or reclusion perpetua?
1. Your remedy is to file an appeal to the Court of Appeals by filing a notice of appeal
with the RTC under Rule 122, Sec. 3 (a) within the reglementary period, and by serving
a copy thereof upon the adverse party.56
2. If the Court of Appeals affirms the conviction, you can appeal the judgment to the
Supreme Court by filing a petition for review on certiorari under Rule 45.
Rule 122, Sec. 9 (c): Within fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or
may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of
the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such
memoranda or briefs as may have been filed.
52
53
Rule 124, Sec. 7. Contents of brief. The briefs in criminal cases shall have the same contents as provided in Sections 13
and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant.
54
55
56
jjsummer&rain#foursisons2015-0174
o What are your remedies from a judgment of conviction rendered by the RTC
imposing the penalty of life imprisonment or reclusion perpetua?
1. Your remedy is to file an appeal to the Court of Appeals by filing a notice of appeal
with the RTC under Rule 122, Sec. 3 (c). If there are offenses, to which a lesser penalty
is imposed, which were committed on the same occasion as the commission of the
principal offense, the remedy is still a notice of appeal. These lesser offenses will be
elevated together with the principal offense upon filing of a notice of appeal.57
2. If the Court of Appeals affirms the judgment of reclusion perpetua or life
imprisonment, or imposes a lesser penalty, it shall render and enter the judgment.
Your remedy is an appeal to the Supreme Court by filing a notice of appeal with the
Court of Appeals.58 This is the only instance that you can file a notice of appeal in the
Court of Appeals.
o What is your remedy from a judgment of conviction rendered by the RTC
imposing the penalty of death?
1. You need not resort to any remedy because a judgment imposing the penalty of death
will be automatically elevated to the Court of Appeals for intermediate review.59
2. In case the Court of Appeals affirms the judgment of death, it will render but not
enter a judgment, i.e. the court shall render judgment but refrain from making an
entry of judgment and forthwith certify the case and elevate its entire record to the
Supreme Court for review. [Rule 124, Sec. 13 (a)].
o Does the Fresh-Period Rule (Neypes vs. CA, 2005) apply to criminal cases? Yes,
the Fresh-Period Rule applies to criminal cases. If you file a motion for reconsideration or
a motion for new trial, and it is denied, your period of fifteen (15) days starts to run again
upon receipt of the denial.
1. The provisions of Section 3 of Rule 4160 and Section 6 of Rule 122,61 though differently
worded, mean exactly the same. There is no substantial difference between the two
provisions insofar as legal results are concerned the appeal period stops running upon
the filing of a motion for new trial or reconsideration and starts to run again upon
receipt of the order denying said motion for new trial or reconsideration. It was this
situation that Neypes addressed in civil cases. No reason exists why this situation in
criminal cases cannot be similarly addressed. (Yu vs. Tatad, 2011)
Rule 122, Sec. 3 (c): The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, life
imprisonment or where a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same
occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is
imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this Rule.
57
Rule 124, Sec. 13 (c): In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty,
it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of
appeal filed with the Court of Appeals.
58
Rule 122, Sec. 3 (d): No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty.
The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule.
59
Rule 41, Sec. 3. xxx The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No motion
for extension of time to file a motion for new trial or reconsideration shall be allowed.
60
61
Rule 122, Sec. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the
judgment or from notice of the final order appealed from. This period for perfecting an appeal shall be suspended from the time a
motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or
his counsel at which time the balance of the period begins to run.
jjsummer&rain#foursisons2015-0175
62
Rule 126, Sec. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine
in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on
facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Simply
submitting affidavits or depositions will not suffice.
63
It would be best to identify the exact address; but if the place to be searched has no numeric address, there must be a reasonable
description of the premises in addition to the so-called lot number and the block number.
64
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o Where do you file an application for a search warrant? You can file an application
for the issuance of a search warrant in any court within whose territorial jurisdiction the
crime was committed you still need to follow the rule on territoriality.
1. Respondents imitation of the general appearance of petitioners goods was done
allegedly in Cavite. It sold the goods allegedly in Mandaluyong City, Metro Manila. The
alleged acts would constitute a transitory or continuing offense. Thus, clearly, under
Section 2 (b) of Rule 126, Section 168 of Rep. Act No. 8293 and Article 189 (1) of the
Revised Penal Code, petitioner may apply for a search warrant in any court where any
element of the alleged offense was committed, including any of the courts within the
National Capital Region (Metro Manila). (Sony Computer vs. Supergreen, 2007).
o Can you file an application for the issuance of a search warrant in Pasay City
when the place to be searched is in Manila? You can, for compelling reasons, file the
application in a court other than the courts in the place where the crime was committed but
only within the judicial region.65
o Can you file an application for the issuance of a search warrant before an
Executive Judge? Yes, but the application can only be filed by the NBI, the PNP, the
ACTAF, and the PDEA, and only before an Executive Judge, or in his absence, before a ViceExecutive Judge of the RTCs of Manila or Quezon City. If the application is granted, the
search warrant will be effective in the entire Philippines. This is an exception to Rule 126, Sec.
2.
1. The abovementioned rule is for search warrants involving heinous crimes, illegal
gambling, illegal possession of firearms and ammunitions as well as violations of the
Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the
Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and
other relevant laws that may hereafter be enacted by Congress, and included herein by
the Supreme Court. (A.M. No. 03-8-02-SC dated 27 January 2004)
2. The applications shall be endorsed by the heads of such agencies or their respective
duly authorized officials and shall particularly describe therein the places to be
searched and/or the property or things to be seized as prescribed in the Rules of Court.
The Executive Judges and Vice-Executive Judges concerned shall issue the warrants,
if justified, which may be served outside the territorial jurisdiction of the said courts.
(A.M. No. 08-4-4-SC dated 7 July 2009)
Rule 126, Sec. 2: For compelling reasons stated in the application, any court within the judicial region where the crime was
committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be
enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal
action is pending.
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Rule 126, Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a
search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action
has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the
search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the
motion shall be resolved by the latter court.
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These exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the
constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential
requisite of probable cause [except in a Terry Search] must still be satisfied before a warrantless search and seizure can be lawfully
conducted. (People vs. Aruta, 1998) (Annotation supplied)
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Although probable cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion supported
by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the
offense with which he is charged.
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1938). Thus, where the accused has voluntarily surrendered his gun, he cannot claim illegality
of the seizure. (People vs. Agbot, 1981).
o Customs search, or seizure of goods concealed to avoid duties.
o Stop and Frisk (Terry Search).
1. While probable cause is not required to conduct a stop and frisk, it nevertheless
holds that mere suspicion or a hunch will not validate a stop and frisk. A genuine
reason must exist, in light of the police officers experience and surrounding
conditions, to warrant the belief that the person detained has weapons concealed
about him. (Malacat vs. CA, 1997).
2. Where a police officer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
person with whom he is dealing may be armed and presently dangerous, where in the
course of investigation of this behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of the encounter serves to
dispel his reasonable fear for his own or others safety, he is entitled for the protection
of himself and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be used to
assault him. Such a search is reasonable search under the Fourth Amendment. (Terry
vs. Ohio, U.S. 1968).
o Exigent and Emergency Circumstances.
1. This was applied in a case where there were intelligence reports that the building was
being used as headquarters by the RAM during the 1989 coup detat. Surveillance
indicated rebel activities in the building. Nearby courts were closed and general chaos
and disorder prevailed. Under the situation then prevailing, the raiding team had no
opportunity to apply for and secure a search warrant from the courts. Under such
urgency and exigency of the moment, a search warrant should lawfully be dispensed
with. (People vs. De Gracia, 1994).
RULE 127: Provisional Remedies in Criminal Cases
o Sec. 1. Availability of provisional remedies. The provisional remedies in civil
actions, insofar as they are applicable, may be availed of in connection with the civil action
deemed instituted with the criminal action.
1. The provisional remedies of preliminary attachment, preliminary injunction,
receivership, and support pendente lite can be availed of in criminal cases, except the
provisional remedy of replevin since a writ of replevin can only be applied for before
an answer is filed - there is no answer in criminal cases.
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Corpus delicti means the actual commission by someone of the particular crime charged. (People vs. Roble, 2011)
Section 21, IRR of RA No. 9165: The apprehending officer/team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the
person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the
search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is
practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable
grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending
officer/team, shall not render void and invalid such seizures of and custody over said items.
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2. The saving clause in Section 21, IRR of R.A. No. 9165 applies only where the
prosecution recognized the procedural lapses, and thereafter cited justifiable grounds.
Failure to follow the procedure mandated under R.A. No. 9165 and its IRR must be
adequately explained. Equally important, the prosecution must establish that the
integrity and the evidentiary value of the seized item are properly preserved. (People
vs. Guzon, 2013).
o Is the non-presentation of the poseur-buyer to the witness stand fatal to the
prosecutions case? Yes, the non-presentation of the poseur-buyer as witness is fatal to
the prosecution. In a prosecution for illegal sale of dangerous drugs, the prosecution must
convincingly prove that the transaction or sale actually transpired.
1. Well-established is the rule that when the inculpatory facts and circumstances are
capable of two (2) or more explanations, one of which is consistent with the innocence
of the accused and the other consistent with his guilt, then the evidence does not fulfill
the test of moral certainty and is not sufficient to support a conviction. In the present
case, accused-appellants version of the circumstances leading to his apprehension
constitutes a total denial of the prosecutions allegations. In this regard, this Court has
ruled that when there is such a divergence of accounts it becomes incumbent upon the
prosecution to rebut appellants allegations by presenting the alleged poseur-buyer.
This it failed to do, giving rise to the presumption that evidence willfully suppressed
would be adverse if produced. [Rule 131, Sec. 5 (e)]. This failure constitutes a total flaw
in the prosecutions evidence since the so-called informant who was never presented
as a witness and never identified, is the best witness for the prosecution. (People vs.
Yabut, 1992).
2. While the Court, in several instances, has affirmed an accuseds conviction
notwithstanding the non-presentation of the poseur-buyer in the buy-bust operation,
such failure is excusable only when the poseur-buyers testimony is merely
corroborative, there being some other eyewitness who is competent to testify on the
sale transaction. (People vs. Guzon, 2013).
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