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Provisional Dismissal

Criminal Procedure Provisional Dismissal Rule 117

When can a case be provisionally dismissed?

A case can be 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. (People vs. Lacson, G.R. No. 149453, April 1, 2003)


Who can move for the provisional dismissal of a case?

1) the prosecution with the express conformity of the accused;
2. the accused; or
3. both the prosecution and the accused.


Why is the consent of the accused required for the provisional dismissal of his case?

The raison d’ etre for the requirement of the express consent of the accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein. (People vs. Lacson)


How is the express consent of the accused given?

Express consent to a provisional dismissal is given either viva voce or in writing.  

It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning.  

Where the accused writes on the motion of a prosecutor for a provisional dismissal of the case "No objection or With my conformity", the writing amounts to express consent of the accused to a provisional dismissal of the case.  

A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal.

The mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.


When does the provisional dismissal become permanent?

1) not exceeding 6 years or fine - The provisional dismissal of offenses punishable by imprisonment not exceeding 6 years or a fine of any amount shall become permanent after 1 year without the case having been revived.

2) more than 6 years - For offenses punishable by imprisonment of more than 6 years, the provisional dismissal shall become permanent after 2 years without the case having been revived.

After the provisional dismissal becomes final, the accused cannot be prosecuted anymore.


When should the 1-year or 2-year period be reckoned for a provisional dismissal to become permanent?

Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived.  The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. (People vs. Lacson)


When may the case be revived?

If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived only within the periods provided in the new rule.  On the other hand, if a criminal case is provisionally dismissed without the express consent of the accused or over his objection, the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods subject to the right of the accused to oppose the same on the ground of double jeopardy or that such revival or refiling is barred by the statute of limitations. (People vs. Lacson)


How may the State revive the case?

The State may revive the case within the time-bar either by the:

1. Refiling of the Information or by
2. Filing of a new Information for the same offense or an offense necessarily included therein.


Is there a need for a new preliminary investigation in case of revival?

No. There would be no need of a new preliminary investigation if the State revive the case within the time-bar.


What are some of the instances when a new preliminary investigation is needed in case of revival?

1. In case wherein after the provisional dismissal of the criminal case, the original  witnesses  of  the prosecution or some of them may have recanted their testimonies or may have died or may  no  longer  be available  and  new witnesses  for  the  State have emerged.

2. If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein 

3. If under  a  new  criminal  complaint,  the  criminal  liability  of  the accused  is  upgraded  from  that  of  an accessory  to  that  of  a principal 

4.  If under a new criminal complaint, the charge has been upgraded.


Distinguish Motion to Quash from Provisional Dismissal

1. 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.

2. 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.

3. 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.

4. 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.

5. 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. (Los BaƱos vs. Pedro, G.R. No. 173588, April 22, 2009)

 

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