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Provisional Dismissal


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. (Sec. 8, Rule 117, Rules of Court) 


What are provisional dismissals?

Provisional dismissals refers to those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case). (Los Baños vs. Pedro, G.R. No. 173588, April 22, 2009)


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.

What are the requisites in order that a case may be provisionally dismissed?

1. consent of the prosecutor
2. consent of the accused
3. notice to the offended party


How is the express consent of the accused given?

1. 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.

2. A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal. (People vs. Lacson, G.R. No. 149453, April 1, 2003)


Does 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 amount to express consent?

No. 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. (People vs. Lacson)


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)


When does the provisional dismissal become permanent?

1.) MTC Cases - 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.

2.) RTC Cases - 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. (Sec. 8, Rule 117)


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)


What are the conditions sine qua non to the application of the time-bar rule?
  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. (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:
  1. Refiling of the Information or
  2. Filing of a new Information for the same offense or an offense necessarily included therein. (People vs. Lacson)

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. (People vs. Lacson)


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(People vs. Lacson)


Read:
Motion to Quash vs. Provisional Dismissal
Permanent Dismissals vs. Provisional Dismissals

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