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Motion to Quash vs. Provisional Dismissal


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. 


1. Who may file.

A motion to quash is invariably filed by the accused. In contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both.


2. Form and content

The motion to quash shall be in writingsigned by the accused or his counsel and shall distinctly specify its factual and legal grounds. (Sec 2, Rule 117) These requirements do not apply to a provisional dismissal.


3. Grounds

The grounds for a motion to quash are specified under Section 3, Rule 117. In contrast, Section 8, Rule 117 does not state the grounds that lead to a provisional dismissal. 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 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. When allowed

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. Effect of sustaining

An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3 (g) and (i) of Rule 117 (criminal action or liability has been extinguished and double jeopardy). 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.

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

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