G.R. No. 149453, April 1, 2003 FACTS: Before the court is the petitioners motion of reconsideration of the resolution dated May 23, 2002, for the determination of several factual issues relative to the application of Sec. 8 Rule 117 of RRCP on the dismissal of the cases Q-99- 81679 and Q-99-81689 against the respondent. The respondent was charged with the shooting and killing of eleven male persons. The court confirmed the express consent of the respondent in the provisional dismissal of the aforementioned cases when he filed for judicial determination. The court also ruled the need to determine whether the other facts for its application are attendant. ISSUE: Whether or not the requisites for the applicability of Sec. 8, Rule 117 of 2000 Rules on Criminal Procedure were complied with in the Kuratong Baleleng cases a. Was express consent given by the respondent? b. Was notice for the motion, the hearing and the subsequent dismissal given to the heirs of the victims? HELD: No. Section 8, Rule 117 is not applicable to the case since the conditions for its applicability, namely: 1) prosecution with the express consent of the accused or both of them move for provisional dismissal, 2) offended party notified, 3) court grants motion and dismisses cases provisionally, 4) public prosecutor served with copy of orders of provisional dismissal, which is the defendants burden to prove, which in this case has not been done. a. The defendant never filed and denied unequivocally in his statements, through counsel at the Court of Appeals, that he filed for dismissal nor did he agree to a provisional dismissal thereof. b. No notice of motion for provisional dismissal, hearing and subsequent dismissal was given to the heirs of the victims.
United States of America Ex Rel. Frank Grano, Jr. v. Raymond T. Anderson, Warden, New Castle County Correctional Institution, Department of Corrections, State of Delaware, 446 F.2d 272, 3rd Cir. (1971)