EN BANC
|
ARIEL
M. LOS BAÑOS, on behalf
of P/Supt. Victor Arevalo, SPO2 Marcial Olympia, SPO1 Rocky Mercene and PO1
Raul Adlawan, and in his personal capacity, Petitioner, -
versus - JOEL R. PEDRO,
Respondent. |
G.R. No. 173588
Present: PUNO, C.J., Quisumbing, Ynares-Santiago, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, TINGA, CHICO-NAZARIO, velasco, JR., NACHURA, leonardo-de castro, brion, peralta, and bersamin, JJ. Promulgated: April 22, 2009 |
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BRION, J.
We review in this petition for review on certiorari[1] the
THE
ANTECEDENTS
Pedro was charged in court for carrying a loaded
firearm without the required written authorization from the Commission on
Elections (Comelec) a day before the
That
on or about the 13th day of May 2001 at about 4:00 o’clock in the
afternoon, in [S]itio Bantauyan, [B]arangay Bantad, Municipality of Boac, Province
of Marinduque, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused did then and there, willfully, unlawfully and
feloniously carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with Serial No. 173-56836 outside his residence during the
election period, without authorization in writing from the Commission on
Election[s].
CONTRARY TO LAW.[4]
The accusation was based on Batas Pambansa Bilang 881 or the Omnibus Election Code (Code) after the Marinduque Philippine
National Police (PNP) caught Pedro
illegally carrying his firearm at a checkpoint at Boac, Marinduque. The Boac checkpoint team was composed of
Police Senior Inspector Victor V. Arevalo, SPO2 Marshal Olympia, SPO1 Rocky
Mercene, and PO1 Raul Adlawan. The team stopped a silver-gray Toyota Hi-Ace
with plate number WHT-371 on the national highway, coming from the Boac town
proper. When Pedro (who was seated at
the rear portion) opened the window, Arevalo saw a gun carry case beside him. Pedro could not show any COMELEC authority to
carry a firearm when the checkpoint team asked for one, but he opened the case
when asked to do so. The checkpoint team saw the following when the case was
opened: 1) one Revolver 357 Magnum Ruger GP100, serial number 173-56836, loaded
with six ammunitions; 2) one ammunition box containing 100 bullets; 3) two
pieces speed loader with six ammunitions each; and 4) one set ear protector. Pedro was with three other men. The checkpoint team brought all of them to
the Boac police station for investigation.
The Boac election officer filed a
criminal complaint against Pedro for violating the election gun ban, i.e., for carrying a firearm outside of
his residence or place of business without any authority from the Comelec.
After an inquest, the Marinduque provincial prosecutor filed the above
Information against Pedro with the Marinduque Regional Trial Court (RTC) for violation of the Code’s Article
XXII, Section 261 (q),[5]
in relation to Section 264.[6]
Pedro filed a
Motion for Preliminary Investigation, which the RTC granted.[7] The preliminary investigation, however, did
not materialize. Instead, Pedro filed
with the RTC a Motion to Quash, arguing that the Information “contains
averments which, if true, would constitute a legal excuse or justification[8]
and/or that the facts charged do not constitute an offense.”[9] Pedro attached to his motion a Comelec Certification dated
The RTC quashed the Information and ordered the
police and the prosecutors to return the seized articles to Pedro.[10]
The petitioner, private prosecutor Ariel Los Baños (Los Baños), representing the checkpoint
team, moved to reopen the case, as Pedro’s Comelec Certification was a “falsification,” and the prosecution was
“deprived of due process” when the judge quashed the information without a
hearing. Attached to Los Baños’ motion
were two Comelec certifications stating that: (1) Pedro was not exempted from
the firearm ban; and (2) the signatures in the Comelec Certification of
The RTC reopened the case for further proceedings,
as Pedro did not object to Los Baños’ motion.[11] Pedro moved for the reconsideration of the RTC’s
order primarily based on Section 8 of Rule 117,[12]
arguing that the dismissal had become permanent. He likewise cited the public
prosecutor’s lack of express approval of the motion to reopen the case.
The public prosecutor, however, manifested his
express conformity with the motion to reopen the case. The trial court, for its part, rejected the
position that Section 8, Rule 117 applies, and explained that this provision
refers to situations where both the prosecution and the accused mutually
consented to the dismissal of the case, or where the prosecution or the
offended party failed to object to the dismissal of the case, and not to a
situation where the information was quashed upon motion of the accused and over
the objection of the prosecution. The
RTC, thus, set Pedro’s arraignment date.
Pedro filed with the CA a petition for certiorari and prohibition
to nullify the RTC’s mandated reopening.[13] He argued that the RTC committed grave abuse
of discretion amounting to lack or excess of jurisdiction in ruling that the
dismissal contemplated under Section 8, Rule 117 refers to situations where either
the prosecution and the accused mutually consented to, or where the prosecution
alone moved for, the provisional dismissal of the case; in rejecting his
argument that the prescriptive periods
under Article 90 of the Revised Penal Code[14] or Act No. 3326[15]
find no application to his case as the filing of the Information against him
stopped the running of the prescriptive periods so that the prescription
mandated by these laws became irrelevant; and, in setting the case for
arraignment and pre-trial conference, despite being barred under Section 8 of Rule 117.
THE
COURT OF APPEALS DECISION
The CA initially denied Pedro’s petition. For accuracy, we quote the
material
portions of its ruling:
The petition lacks merit.
The
trial court erred in ruling that Section 8, Rule 117 does not apply to
provisional dismissals on motion of the accused. The Rule merely provides that a case shall
not be provisionally dismissed, except with the express consent of the accused
and with notice to the offended party.
Nothing in the said rule proscribes its application to dismissal on
motion of the accused.
Nevertheless,
we find no basis for issuing the extraordinary writs of certiorari and prohibition,
as there is no showing that the error was tainted with grave abuse of
discretion. Grave abuse of discretion
implies capricious and whimsical exercise of judgment amounting to lack of
jurisdiction. The grave abuse of
discretion must be so patent and gross as to amount to an evasion or refusal to
perform a duty enjoined by law.
Before
the petitioner may invoke the time-bar in Section 8, he must establish the
following:
1.
the prosecution, with the express conformity of the accused or the accused moves
for a provisional (sin perjuicio) dismissal of the case; or both the
prosecution and the accused move for a provisional dismissal of the case;
2.
the offended party is notified of the motion for a provisional dismissal of the
case;
3.
the court issues an order granting the motion and dismissing the case
provisionally;
4.
the public prosecutor is served, with a copy of the order of provisional
dismissal of the case.
Although
the second paragraph of Section 8 states that the order of dismissal shall become
permanent one year after the issuance thereof, without the case having been
revived, such provision should be construed to mean that the dismissal shall become permanent one year after service of the
order of dismissal on the public prosecutor, as the public prosecutor
cannot be expected to comply with the timeliness requirement unless he is
served with a copy of the order of dismissal.
In the instant, case, the records
are bereft of proof as to when the public prosecutor was served the order of
dismissal dated
WHEREFORE, the petition is DENIED.
In his motion for reconsideration, Pedro manifested
the exact date and time of the Marinduque provincial prosecutor’s receipt of
the quashal order to be “2:35 p.m., December 10, 2001,” and argued that based
on this date, the provisional dismissal of the case became “permanent” on
December 10, 2002. Based on this
information, the CA reversed itself, ruling as follows:
On
x x x
The
arguments raised in the respondents’ motion for modification were duly passed
upon in arriving at the decision dated
On the other hand, the petitioner was
able to prove that the motion to reopen the case was filed after the lapse of
more than one year from the time the public prosecutor was served the notice of
dismissal. Therefore, the state is
barred from reopening the case.
WHEREFORE, petitioner Joel Pedro’s
motion for partial reconsideration is hereby GRANTED, and respondent Ariel Los Banos’ motion for modification of
judgment is, accordingly, DENIED.
To summarize this ruling, the
appellate court, while initially saying that there was an error of law but no
grave abuse of discretion that would call for the issuance of a writ, reversed
itself on motion for reconsideration; it then ruled that the RTC committed grave
abuse of discretion because it failed to apply Section 8, Rule 17 and the
time-bar under this provision.
THE
PETITION
Los Baños prays in his petition
that the case be remanded to the RTC for arraignment and trial, or that a new
charge sheet be filed against Pedro, or that the old information be re-filed
with the RTC. He contends that under
Section 6 of Rule 117, an order sustaining a motion to quash does not bar
another prosecution for the same offense, unless the motion was based on the
grounds specified in Section 3(g)[16]
and (i)[17]
of Rule 117. Los Baños argues that the dismissal
under Section 8 of Rule 117 covers only situations where both the prosecution
and the accused either mutually consented or agreed to, or where the
prosecution alone moved for the provisional dismissal of the case; it can also
apply to instances of failure on the part of the prosecution or the offended
party to object, after having been forewarned or cautioned that its case will
be dismissed. It does not apply where
the information was quashed. He adds
that although the trial court granted the motion to quash, it did not
categorically dismiss the case, either provisionally or permanently, as the
judge simply ordered the return of the confiscated arms and ammunition to
Pedro. The order was “open-ended,” and
did not have the effect of provisionally dismissing the case under Section 8 of
Rule 117.
Los Baños also contends that the CA
gravely erred when: (1) it ruled in effect that the Order dated November 22,
2001 granting the motion to quash is considered a provisional dismissal, which
became permanent one year from the prosecutor’s receipt of the order; the order
to quash the Information was based on Section 3 of Rule 117, not on Section 8
of this Rule; (2) it granted Pedro’s motion for reconsideration and denied Los
Baños’ motion for modification of judgment, when Section 6 of Rule 117 clearly
provides that an order granting a motion to quash is not a bar to another
prosecution for the same offense.
He notes that the grounds Pedro
relied upon in his motion to quash are not subsections (g) or (i) of Rule 117, but
its subsections (a) – that the facts charged do not constitute an offense, and (h)
– that it contains averments which if true would constitute a legal
justification. Pedro’s cited grounds are
not the exceptions that would bar another prosecution for the same offense.[18] The dismissal of a criminal case upon the
express application of the accused (under subsections [a] and [h]) is not a bar
to another prosecution for the same offense, because his application is a
waiver of his constitutional prerogative against double jeopardy.
In response to all these, respondent
Pedro insists and fully relies on the application of Section 8 of Rule 117 to
support his position that the RTC should not have granted Los Banos’ motion to
reopen the case.
THE
ISSUES
The issue is ultimately reduced to whether Section
8, Rule 117 is applicable to the case, as the CA found. If it applies, then the CA ruling effectively
lays the matter to rest. If it does not,
then the revised RTC decision reopening the case should prevail.
OUR
RULING
We
find the petition meritorious and hold that the case should be remanded to the
trial court for arraignment and trial.
Quashal
v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused
assails, before entering his plea, the validity of the criminal complaint or
the criminal information filed against him for insufficiency on its face in
point of law, or for defect apparent on the face of the Information.[19]
The motion, as a rule, hypothetically
admits the truth of the facts spelled out in the complaint or information. The rules governing a motion to quash are
found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the
grounds for the quashal of a complaint or information, as follows:
(a) That the facts charged do not
constitute an offense;
(b) That the court trying the case
has no jurisdiction over the offense charged;
(c) That the court trying the case
has no jurisdiction over the person of the accused;
(d) That the officer who filed the
information had no authority to do so;
(e) That it does not conform
substantially to the prescribed form;
(f) That more than one offense is
charged except when a single punishment for various offenses is prescribed by
law;
(g) That the criminal action or
liability has been extinguished;
(h) That it contains averments
which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been
previously convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express consent.
b.
Provisional Dismissal
On the other hand, Section 8, Rule 117 that is at
the center of the dispute states that:
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.
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.
A
case is provisionally dismissed if the following requirements concur:
1)
the prosecution with the express conformity of the accused, or the accused,
moves for a provisional dismissal (sin
perjuicio) of his case; or both the
prosecution and the accused move for its provisional dismissal;
2)
the offended party is notified of the motion for a provisional dismissal of the
case;
3)
the court issues an order granting the motion and dismissing the case
provisionally; and
4)
the public prosecutor is served with a copy of the order of provisional
dismissal of the case.[20]
In People v.
Lacson,[21]
we ruled that there are sine quanon requirements in the application of the time-bar rule stated in the second
paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the
foregoing provision is a special procedural limitation qualifying the right of
the State to prosecute, making the time-bar an essence of the given right or as
an inherent part thereof, so that the lapse of the time-bar operates to
extinguish the right of the State to prosecute the accused.
c. Their Comparison
An examination of the whole Rule tells us that a dismissal
based on a motion to quash and a provisional dismissal are far different from one
another as concepts, in their features, and legal consequences. While the
provision on provisional dismissal is found within Rule 117 (entitled Motion to
Quash), it does not follow that a motion to quash results in a provisional
dismissal to which Section 8, Rule 117 applies.
A first notable feature of
Section 8, Rule 117 is that it does not exactly state what a provisional
dismissal is. The modifier “provisional”
directly suggests that the dismissals which Section 8 essentially refers to are
those that are temporary in character (i.e.,
to dismissals that are without prejudice to the re-filing of the case), and not
the dismissals that are permanent (i.e.,
those that bar the re-filing of the case).
Based on the law, rules, and jurisprudence, permanent dismissals are
those barred by the principle of
double jeopardy,[22] by the previous extinction
of criminal liability,[23] by the rule
on speedy trial,[24] and the dismissals after
plea without the express consent of the accused.[25] Section 8, by its own terms, cannot cover
these dismissals because they are not provisional.
A second feature is that Section 8 does not state the
grounds that lead to a provisional dismissal. This is in marked contrast with a
motion to quash whose grounds are specified under Section 3. The delimitation of the grounds available in
a motion to quash suggests that a motion to quash is a class in itself, with
specific and closely-defined characteristics under the Rules of Court. A
necessary consequence is that where the grounds cited are those listed under
Section 3, then the appropriate remedy is to file a motion to quash, not any
other remedy. Conversely, where a ground
does not appear under Section 3, then a motion to quash is not a proper
remedy. A motion for provisional
dismissal may then apply if the conditions required by Section 8 obtain.
A third feature, closely related to the second, focuses on the
consequences of a meritorious motion to quash.
This feature also answers the question of whether the quashal of an information
can be treated as a provisional dismissal.
Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the
consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information,
if the motion to quash relates to a defect curable by amendment. Section
5 dwells on the effect of sustaining the motion to quash - the complaint or
information may be re-filed, except for the instances mentioned under Section 6. The latter section, on the other hand,
specifies the limit of the re-filing that Section 5 allows – it cannot be done
where the dismissal is based on extinction of criminal liability or double
jeopardy. Section 7 defines double jeopardy and complements the ground
provided under Section 3(i) and the exception stated in Section 6.
Rather than going into specifics, Section 8 simply states when
a provisional dismissal can be made, i.e.,
when the accused expressly consents and the offended party is given notice. The
consent of the accused to a dismissal relates directly to what Section 3(i) and
Section 7 provide, i.e., the
conditions for dismissals that lead to double jeopardy. This immediately suggests that a dismissal
under Section 8 – i.e., one with the
express consent of the accused – is not intended to lead to double jeopardy as
provided under Section 7, but nevertheless creates a bar to further
prosecution under the special terms of Section 8.
This feature must be read with Section 6 which provides for
the effects of sustaining a motion to quash – the dismissal is not a bar to
another prosecution for the same offense – unless the basis for the dismissal
is the extinction of criminal liability and double jeopardy. These unique
terms, read in relation with Sections 3(i) and 7 and compared with the
consequences of Section 8, carry unavoidable implications that cannot but lead
to distinctions between a quashal and a provisional dismissal under Section 8. They
stress in no uncertain terms that, save only for what has been provided under
Sections 4 and 5, the governing rule when a motion to quash is meritorious are
the terms of Section 6. The failure of
the Rules to state under Section 6 that a Section 8 provisional dismissal is a
bar to further prosecution shows that the framers did not intend a dismissal
based on a motion to quash and a provisional dismissal to be confused with one
another; Section 8 operates in a world of its own separate from motion to
quash, and merely provides a time-bar that uniquely applies to dismissals other
than those grounded on Section 3. Conversely,
when a dismissal is pursuant to a motion to quash under Section 3, Section 8
and its time-bar does not apply.
Other than the above, we note also the following differences
stressing that a motion to quash and its resulting dismissal is a unique class
that should not be confused with other dismissals:
First, a motion to
quash is invariably filed by the accused to question the efficacy of the
complaint or information filed against him or her (Sections 1 and 2, Rule 117);
in contrast, a case may be provisionally dismissed at the instance of either
the prosecution or the accused, or both, subject to the conditions enumerated
under Section 8, Rule 117.[26]
Second, the form and
content of a motion to quash are as stated under Section 2 of Rule 117; these
requirements do not apply to a provisional dismissal.
Third, a motion to
quash assails the validity of the criminal complaint or the criminal
information for defects or defenses apparent on face of the information; a
provisional dismissal may be grounded on reasons other than the defects found in
the information.
Fourth, a motion to
quash is allowed before the arraignment (Section 1, Rule 117); there may be a
provisional dismissal of the case even when the trial proper of the case is
already underway provided that the required consents are present.[27]
Fifth, a provisional dismissal is, by its own
terms, impermanent until the time-bar
applies, at which time it becomes a permanent dismissal. In contrast, an information that is quashed
stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence,
and becomes so only as provided by law or by the Rules. In re-filing the case, what is important is
the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set
in. In a provisional dismissal, there
can be no re-filing after the time-bar, and prescription is not an immediate consideration.
To recapitulate,
quashal and provisional dismissal are different concepts whose respective rules
refer to different situations that should not be confused with one
another. If the problem relates to an intrinsic or extrinsic deficiency of the
complaint or information, as shown on its face, the remedy is a motion to
quash under the terms of Section 3, Rule 117.
All other reasons for seeking the dismissal of the complaint or
information, before arraignment and under the circumstances outlined in Section
8, fall under provisional dismissal.
Thus, we conclude that
Section 8, Rule 117 does not apply to the reopening of the case that the RTC
ordered and which the CA reversed; the reversal of the CA’s order is legally
proper.
Pedro’s Motion to Quash
The merits of the grant
of the motion to quash that the RTC initially ordered is not a matter that has
been ruled upon in the subsequent proceedings in the courts below, including the
CA. We feel obliged to refer back to
this ruling, however, to determine the exact terms of the remand of the case to
the RTC that we shall order.
The grounds Pedro cited
in his motion to quash are that the Information contains averments which, if true, would constitute a legal excuse or
justification [Section 3(h), Rule 117], and that the facts charged do not constitute an offense [Section 3(a), Rule
117]. We find from our examination of
the records that the Information duly charged a specific offense and provides
the details on how the offense was committed.[28] Thus, the cited Section 3(a) ground has no
merit. On the other hand, we do not see
on the face or from the averments of the Information any legal excuse or
justification. The cited basis, in fact, for Pedro’s motion to quash was a Comelec
Certification (dated September 24,
2001, issued by Director Jose P. Balbuena, Sr. of the Law Department, Committee
on Firearms and Security Personnel of the Comelec, granting him an exemption from
the ban and a permit to carry firearms during the election period)[29]
that Pedro attached to his motion to
quash. This COMELEC Certification
is a matter aliunde that is not an
appropriate motion to raise in, and cannot support, a motion to quash grounded
on legal excuse or justification found on the face of the Information. Significantly, no hearing was ever called
to allow the prosecution to contest the genuineness of the COMELEC certification.[30]
Thus, the RTC grossly erred
in its initial ruling that a quashal of the Information was in order. Pedro, on the other hand, also misappreciated
the true nature, function, and utility of a motion to quash. As a consequence, a valid Information still stands,
on the basis of which Pedro should now be arraigned and stand trial.
One final observation: the Information
was not rendered defective by the fact that Pedro was charged of violating Section
261(q) of the Code, instead of Section 32 of R.A. No. 7166, which amended Section 261(q); these two sections aim to penalize
among others, the carrying of firearms (or other deadly weapons) in public
places during the election period without the authority of the Comelec. The
established rule is that the character of the crime is not
determined by the caption or preamble of the information or from the
specification of the provision of law alleged to have been violated; the crime
committed is determined by the recital of the ultimate facts and circumstances
in the complaint or information[31] Further, in Abenes v.
Court of Appeals,[32] we specifically recognized that the
amendment under Section 32 of R.A. No. 7166 does not affect the prosecution of
the accused who was charged under
Section 261(q) of the Code.
WHEREFORE,
we hereby GRANT the petition and
accordingly declare the assailed September 19, 2005 decision and the July 6,
2006 resolution of the Court of Appeals in CA-G.R. SP No. 80223 respectively MODIFIED and REVERSED. The case is remanded to the Regional Trial Court of Boac,
Marinduque for the arraignment and trial of respondent Joel R. Pedro, after
reflecting in the Information the amendment introduced on Section 261(q) of the
Code by Section 32 of Republic Act No. 7166.
SO
ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
|
REYNATO S. PUNO Chief Justice |
|
|
LEONARDO A. QUISUMBING Associate Justice ANTONIO T. CARPIO Associate Justice RENATO C. CORONA Associate Justice DANTE O. TINGA Associate Justice PRESBITERO
J. VELASCO, JR. Associate
Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice |
CONSUELO
YNARES-SANTIAGO Associate
Justice MA.
ALICIA AUSTRIA-MARTINEZ Associate Justice CONCHITA CARPIO MORALES Associate Justice MINITA V. CHICO-NAZARIO Associate
Justice ANTONIO
EDUARDO B. NACHURA Associate Justice DIOSDADO
M. PERALTA Associate Justice |
LUCAS P.
BERSAMIN
Associate
Justice
REYNATO
S. PUNO
Chief Justice
[1]
Under Rule 45 of the rules of Court
[2] Penned by Associate Justice
Santiago J. Ranada (retired), with Associate Justice Marina L. Buzon (retired)
and Associate Justice Mario L. Guarina III; rollo, pp. 32-38.
[3]
[4]
[5] SEC. 261. Prohibited
Acts. – The following shall be guilty of an election offense:
x x x
(q) Carrying firearms outside residence or place
of business. – Any person who, although possessing a permit to carry
firearms, carries any firearms outside his residence or place of business
during the election period, unless authorized in writing by the Commission [on
Elections]: Provided, That a motor
vehicle, water or air craft shall not be considered residence or place of business or extension
thereof.
This
prohibition shall not apply to cashiers and disbursing officers while in the
performance of their duties or to persons who by nature of their official
duties, profession, business or occupation habitually carry large sums of money
or valuables.
This section was subsequently amended under Republic
Act (R.A.) No. 7166, the Synchronized Election Law of 1991, to read:
SEC. 32. Who May Bear Firearms. – During the election period, no person
shall bear, carry or transport firearms or other deadly weapons in public
places, including any building, street, park, private vehicle or public
conveyance, even if licensed to possess
or carry the same, unless authorized in writing by the Commission. The issuance of firearm
licenses shall be suspended during the election period. (Emphasis supplied)
[6] Section
264 of the Code states that “[a]ny person found guilty of any election offense
under this Code shall be punished with imprisonment of not less than one year
but not more than six years.”
[7] Through Judge Rodolfo Dimaano of RTC Branch
94, Boac, Marinduque.
[8] RULES OF COURT, Rule 117, Section 3(a).
[9]
[10] Through Judge Alejandro Arenas.
[11] Order dated
[12]
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.
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.
[13] Docketed as CA-G.R. SP No.
80223, and titled as Joel R. Pedro v.
Hon. Rodolfo B. Dimaano, Executive/Acting Presiding Judge of the Regional Trial
Court of Marinduque, Branch 38, et al.
[14] ART. 90. Prescription of crimes.
– Crimes punishable by death, reclusion
perpetua or reclusion temporal
shall prescribe in twenty years.
Crimes punishable by other
afflictive penalties shall prescribe in fifteen years.
Those
punishable by a correctional penalty shall prescribe in ten years; with the
exception of those punishable by arresto
mayor, which shall prescribe in five years. xxx
[15] An Act to Establish Periods of
Prescription for Violations Penalized By Special Laws and Municipal Ordinances,
and to Provide When Prescription Shall Begin to Run.
Section
2 thereof states: Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not known at the
time, from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
[16] (g) That the criminal action or liability has
been extinguished.
[17] (i) That the accused has been previously
convicted or acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express consent.
[18] Rollo,
p. 14.
[19] Serapio
v. Sandiganbayan, G.R. No. 148468,
[20] People
v. Lacson, G.R. No. 149453,
[21] People
v. Lacson, G.R. No. 149453,
[22] People v. Laguio, G.R. No. 128587, March
16, 2007, 518 SCRA 393, 402-403; People
v. Hon. Hernandez, G.R. Nos. 154218
& 154372, August 28, 2006, 499 SCRA 688,706-707; Philippine Savings Bank v. Spouses Bermoy, G.R. No. 151912, September 26, 2005, 471
SCRA 94,107-108; Sanvicente v.
People, G.R. No. 132081, November 26, 2002, 392 SCRA 610,616-617; Metropolitan Bank & Trust Co. v. Hon.
Veridiano, G.R. No. 118251, June 29, 200, 360 SCRA 359, 366; People v. Velasco, G.R. No. 127444,
September 13, 2000, 340 SCRA 207, 242; Palu-ay
v. Court of Appeals, G.R. No. 112995, July 30, 1998, 293 SCRA 358, 365.
[23] Romualdez v. Ombudsman, G.R. Nos. 165510-33, July 28, 2006, 497 SCRA
89, 114; People v. Pacificador, G.R.
No. 139405, March 13, 2001, 354 SCRA
310, 319-320; Garcia v. Court of Appeals,
G.R. No. 119063, January 27, 1997, 266
SCRA 678, 694; Cabral v. Puno,
L-41692, April 30, 1976, 70 SCRA 606, 609.
[24] People v. Hon. Hernandez, supra note 22, p. 706; Angchangco Jr.
v. Ombudsman, G.R. No. 122728, February 13, 1997, 268 SCRA 301; Guerrero v. Court of Appeals, G.R. No.
107211, June 28, 1996, 257 SCRA 703, 713-714; People v. Leviste, G.R. No. 104386, March 28, 1996, 255 SCRA 238,
248-249; People v. Tampal, G.R. No. 102485, May 22,1995, 244 SCRA 202; Gonzales v. Sandiganbayan, G.R. No.
94750, July 16,1991, 199 SCRA 298, 308; Tatad
vs. Sandiganbayan, G.R. No. L-72335-39,
[25] People
v. Espinosa, G.R. Nos. 153714-20,
[26] In People v. Togle, (105 Phil 126, 127, [1959]), the defense moved for
the provisional dismissal of the case because of the inability of the
prosecution to present important witnesses. In Baesa v. Provincial Fiscal of
Camarines Sur (G.R. No. L-30363,
[27] People v. Ramos, G.R. No.
135204, April 14, 2004 427 SCRA 299, 301; People
v. Hinaut, supra note 26, p. 304; People v. Togle, supra note
26, p. 127
[28] Rollo, pp. 65-66; for convenience, the
body of the Information reads:
That on or about
the 13th day of May 2001 at about 4:00 o’clock in the afternoon, in
[S]itio Bantauyan, [B]arangay Bantad, Municipality of Boac, Province of
Marinduque, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused did then and there, wilfully, unlawfully and
feloniously carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6)
ammunitions, with Serial No. 173-56836 outside his residence during the
election period without authorization in writing from the Commission on
Election[s].
CONTRARY TO LAW.
[29]
[30] In a long line
of cases, we have ruled that a motion to quash on the ground that the allegations of the
information do not constitute the offense charged, should be resolved on the basis alone of these allegations whose truth and veracity are
hypothetically admitted. By
way of exception, we held in People v.
Navarro (G.R.
No. L-1 & L-2, December 4, 1945; 75 Phil. 516, 518-519) that additional facts not alleged in
the information, but admitted or not denied by the prosecution, may be invoked
in support of the motion to quash. In People v. De la Rosa(98 SCRA 190, 196-197 [1980]) we adopted a pragmatic approach and allowed additional
facts brought out through the presentation of evidence by the parties to be
considered in the determination of a motion to quash grounded on the theory
that the facts charged do not constitute an offense. We held:
Indeed, where in the hearing on a
motion to quash predicated on the ground that the allegations of the
information do not charge an offense, facts have been brought out by evidence
presented by both parties which destroy the prima facie truth accorded to the
allegations of the information on the hypothetical admission thereof, as is
implicit in the nature of the ground of the motion to quash, it would be pure
technicality for the court to close its eyes to said facts and still give due
course to the prosecution of the case already shown to be weak even to support
possible conviction, and hold the accused to what would clearly appear to be a
merely vexatious and expensive trial, on her part, and a wasteful expense of
precious time on the part of the court, as well as of the prosecution.
The
combined application of these rules tells us where the information is allegedly
defective because the facts
charged do not constitute an offense or that the averments of the Information contain a legal excuse or justiciation,
the motion will be resolved, as a rule, solely on the basis of the facts
alleged in the information which are all hypothetically admitted. These facts are to be tested against the
essential elements of the offense. Matters aliunde, as a rule, cannot
considered,[30]
except under the circumstances contemplated in Navarro and De la Rosa
and as permitted by Rule 117. The jurisprudential exceptions refer to the facts
brought out through the evidence adduced by the opposing parties during the
hearing of the motion to quash and those admitted or otherwise not denied by
the prosecution.
[31] Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465
SCRA 465, 482, Reyes v. Camilon, G.R. No. 46198, 20 December 1990, 192 SCRA 445,
453 citing People v. Mendoza, 175
SCRA 743,752.