Provisional dismissal of a criminal case

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The Rules of Court allow the courts to dismiss a criminal case provisionally if it is with the express consent of the accused and with notice to the offended party.

By provisional dismissal, it literally means that the dismissal of the case is merely temporary.

Express consent of the accused

For the courts to provisionally dismiss a criminal case, the accused has to give his express consent.

How express consent given

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

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

Instances when express consent deemed given

For instance, the express consent of the accused is deemed given if he files a motion for provisional dismissal of the case.

It is also deemed given if he writes No objection or With my conformity on the motion of a prosecutor for provisional dismissal.

Inaction or silence of the accused

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

Why express consent needed 

The express consent of the accused is of course needed to bar him from later asserting that the revival of the case will place him in double jeopardy for the same offense or an offense necessarily included in it.

Notice to the offended party

Notice to the offended party of the motion for provisional dismissal of a criminal case is also needed for the courts to dismiss it provisionally.

Remember that in crimes involving private interests, the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for provisional dismissal of the case.

Service to public or private prosecutor

Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing.

Proof of service

The proof of such service must be shown during the hearing on the motion. Otherwise, the requirement will become illusory.

Why notice to the offended party needed

Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds.

Provisionally dismissed criminal case may be revived

Since provisional dismissal of a criminal case literally means that the dismissal of the case is only temporary, it follows then that it can be revived at some future time.

How provisionally dismissed criminal case revived

The State may revive it either by:

(a) Refiling of the Information; or,

(b) Filing of a new Information for the same offense or an offense necessarily included in it.

In both ways, no new preliminary investigation is needed.

When new preliminary investigation needed

But a new preliminary investigation is needed before the refiling of the Information or the filing of a new Information in the following cases:

(a) If 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;

(b) If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or an offense necessarily included in it;

(c) If under a new criminal complaint, the original charge has been upgraded; or,

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

Time-bar

But even if a criminal case dismissed provisionally with the express consent of the accused and with notice to the offended party may be revived at some future time, its revival has to be made within the time-bar.

In particular, if the case involves an offense punishable by imprisonment of less than or exactly six (6) years, or a fine of any amount, or both, its revival has to be made within one (1) year.

If it involves an offense punishable by imprisonment of more than six (6) years, its revival has to be made within two (2) years.

If the State fails to revive it within the one or two-year time-bar, the dismissal of the case then automatically becomes permanent.

Such permanent dismissal amounts to an adjudication of the case on the merits.

Motion to revive the case vs. Court order reviving the case

But the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one or two-year time-bar is unsustainable.

Such interpretation is not found in the Rules of Court.

To permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply.

Remember that most if not all of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions.

They could not as a consequence be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time.

It is also possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.

Conditions for the time-bar to apply 

For the time-bar to apply, the following conditions, which are also the essential requisites for the provisional dismissal of a criminal case, must of course be met:

(a) 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;

(b) The offended party is notified of the motion for a provisional dismissal of the case;

(c) The court issues an order granting the motion and dismissing the case provisionally; and,

(d) The public prosecutor is served with a copy of the order of provisional dismissal of the case.

Reckoning period of the time-bar

The one or two-year time-bar is reckoned from the service of the order of provisional dismissal on the public prosecutor who has control of the prosecution.

The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order.

If the offended party is represented by a private counsel, it is reckoned from the time the counsel was actually notified of the order.

When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his given address.

[References: Section 8, Rule 117 of the Rules of Court, People of the Philippines vs. Dr. Claro Robles, G.R. No. L-12761, June 29, 1959, Arnold Vegafria vs. Judge Catalino Castañeda, Jr. et. al., G.R. No. 106522, October 23, 1992, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R. No. 149453, May 28, 2002, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, March 25, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 1, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 29, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, October 7, 2003, Ariel M. Los Baos, et. al. vs. Joel R. Pedro, G.R. No. 173588, April 22, 2009, Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial), William Co vs. New Prosperity Plastic Products, G.R. No. 183994, June 30, 2014, Atty. Segundo B. Bonsubre, Jr. vs. Erwin Yerro, et. al., G.R. No. 205952, February 11, 2015]

8 thoughts on “Provisional dismissal of a criminal case

  1. EN BANC

    [G.R. No. L-12761. June 29, 1959.]

    PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. DR. CLARO ROBLES, Defendant-Appellee.

    Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for Appellant.

    Elias C. Desembrana for Appellee.

    D E C I S I O N

    xxx xxx xxx.
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    In the circumstances, we find no alternative than to hold that the dismissal of Criminal Case No. 11065 is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense.

    There is a close parallelism between the instant case and that of People v. Tecneng, Et Al., G.R. No. L-12082, which was decided by this Court only on April 30, 1959. In that case, the accused was charged with homicide before the Court of First Instance of Ilocos Sur. They pleaded not guilty, and the case was set for hearing. When the hearing came, the Fiscal asked for postponement alleging that he was not able to contact his witnesses, which was granted. When the case was again called for hearing, the Fiscal moved for another postponement alleging that his witnesses could not be found, and the hearing was againg postponed. But when the third hearing came and the Fiscal asked for another postponement, the accused vigorously objected to the postponement invoking his Constitutional right to a speedy trial. Considering that the case had been postponed twice and the whereabouts of the witnesses for the prosecution could not be ascertained, while on the other hand the accused were intitled to a speedy trial, the Court dismissed the case. However, one year and three months thereafter, the Provincial Fiscal filed another information for murder against the same defendants, with the onlu difference that the mayor of the place was included as co-accused. When the case came up for hearing, the defendants moved to quash the information on the ground of double jeopardy. The Court entertained the motion and on appeal this Court rendered a confirmatory decision.

    In holding that the dismissal of the previous case under the circumstances then prevailing was tantamount to an acquittal of the defendants, this Court sail: “Evidently, the order of dismissal in Criminal Case No. 1793 was based on the right of the appellees to a speedy trial, and the same was only issued because the records shows that at the time said case was called for hearing for the third time on April 21, 1954, the Fiscal wanted to secure an-other postponement, and for that reason he manifested that he was not ready to go into trial on account of the absence of his witnesses, specially that of his principal witness Mauro Hernaez whose appearance was uncertain as his whereabouts were then unknown. But since the absence of witness was the very same reason why the two postponement had been granted, the herein appellees protested and objected to a third postponement and moved for the dismissal of the case, and the Court, believing that further postponement would be unreasonable and unfair to therein appellees who had the right to be tried promptly, dismissed the case in order to maintain inviolate their constitutional right to a speedy trial.”cralaw virtua1aw library

    And making a resume of the case, this Court concluded:jgc:chanrobles.com.ph

    “. . . when criminal case No. 1793 was called for hearing for the third time and the fiscal was not ready to enter into trial dued to the absence of his witnesses, the herein appellee had the right to object to any further postponement and to ask for the dismissal of the case by reason for their constitutional right to a speedy trial; and if pursuant to that objection and petition for dismissal the case was dismissed, such dismissal amounted to an acquittal of the herein appellees which can be invoked, as they did, in a second prosecution for the same offenses.”cralaw virtua1aw library

    In reaching the above conclision, we have not overlooked our ruling in the case of People v. Salico, 44 Off. Gaz., No. 4, 1765-1776, reiterated in People v. Romero, 89 Phil., 672; 49 Off. Gaz (11) 4851, to the effect that dismissal upon defendant’s motion will not be a bar to another prosecution for the same offecse as said dismissal was not without the express consent of the defendant, which ruling the prosecution now invokes in support ofits appeal; but said ruling is not now controlling, having been modified or abandoned in subsequent cases wherein we sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. 1

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  2. FIRST DIVISION

    [G.R. No. 106522. October 23, 1992.]

    ARNOLD VEGAFRIA, Petitioner, v. JUDGE CATALINO CASTAÑEDA, JR., Presiding Judge, Br. 17, RTC, Manila, RONILO A. AZARRAGA, Asst. City Prosecutor of Manila, and CARLOS V. DE GUZMAN, Respondents.

    Recto Law Offices for Petitioner.

    Cayanga, Zuñiga & Angel Law Offices for C. V. de Guzman.

    R E S O L U T I O N

    BELLOSILLO, J.:

    The legal consequence of the provisional dismissal of a criminal case, based on an Affidavit of Desistance executed by the complaining witness, is the crux of this petition for certiorari and prohibition.

    xxx xxx xxx
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    Petitioner principally argues that the provisional dismissal of his case operated as an acquittal on the merits since its basis was the Affidavit of Desistance executed by private Respondent. Therein, the latter admitted that he misapprehended the facts surrounding the issuance of the check; that there was an error in accounting, and that he was no longer interested in pursuing the case. These unequivocal declarations, petitioner contends, made it impossible for the prosecution to prove his guilt beyond reasonable doubt, hence, the motion for the provisional dismissal of the case was inevitable.chanrobles virtual lawlibrary

    We do not agree. The order of respondent Judge issued 4 December 1991 stresses in no uncertain terms that the dismissal of the case was provisional, i.e., the case could be revived at some future date. Thus —

    “Lastly, the accused also took the witness stand and declared that he was agreeable to the provisional dismissal of this criminal case. The Court then informed the accused of the nature of a provisional dismissal, i.e., that such dismissal could mean a possible revival of this criminal action against him. Despite this explanation, the accused insisted on his conformity to the provisional dismissal of the same” (Emphasis ours). 4

    If petitioner believed that the case against him should he dismissed with prejudice he should not have agreed to a provisional dismissal. He should have pressed for a dismissal with prejudice, or invoked his constitutional right to a speedy trial so that the court would have no alternative but to require the prosecution to present its evidence, otherwise, the case would be dismissed with prejudice. But, instead of assuming this stance, petitioner even took the witness stand and expressly agreed to the provisional dismissal of the case. In fact, as reflected in the order in question, the court explicitly informed him of the nature of a provisional dismissal, which could mean a possible revival of the case against him. Since the case was dismissed provisionally with his conformity, petitioner as accused therein cannot thereafter invoke double jeopardy upon revival of the case. 5

    Moreover, the Affidavit of Desistance on which was based the provisional dismissal of the case was not the product of precipitate move but the direct consequence of the Memorandum of Agreement of the parties. Significantly, it may be noted that the Affidavit of Desistance was executed on 4 December 1991, while the Memorandum of Agreement was submitted two (2) days earlier. By the very terms of the Memorandum of Agreement, it appears that private respondent was induced to provisionally withdraw his complaint because petitioner represented that he would liquidate all his obligations with the former through the covenants set forth therein not later than 30 May 1992. 6 Petitioner apparently failed to settle his obligations on the due date. Thus, the reinstatement of the criminal complaint against him. Definitely, it is unfair for petitioner to renege on his commitment which was the raison d’etre for the provisional dismissal of his case.cralawnad

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  3. [G.R. No. 149453. May 28, 2002]
    PEOPLE OF THE PHILIPPINES, et al., vs. PANFILO M. LACSON.
    R E S O L U T I O N
    xxx xxx xxx.
    The issue is whether Section 8, Rule 117 bars the filing of the eleven (11) informations against the respondent Lacson involving the killing of some members of the Kuratong Baleleng gang. This rule which took effect on December 1, 2000 provides:
    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.
    Like any other favorable procedural rule, this new rule can be given retroactive effect. However, this Court cannot rule on this jugular issue due to the lack of sufficient factual bases. Thus, there is need of proof of the following facts, viz: (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was ordered by the court after notice to the offended party, (3) whether the 2-year period to revive has already lapsed, and (4) whether there is any justification for the filing of the cases beyond the 2-year period.
    There is no uncertainty with respect to the fact that the provisional dismissal of the cases against respondent Lacson bears his express consent. It was respondent Lacson himself who moved to dismiss the subject cases for lack of probable cause before then Judge Agnir, hence, it is beyond argument that their dismissal bears his express consent.
    The records of the case, however, do not reveal with equal clarity and conclusiveness whether notices to the offended parties were given before the cases against the respondent Lacson were dismissed by then Judge Agnir. It appears from the resolution of then Judge Agnir that the relatives of the victims who desisted did not appear during the hearing to affirm their affidavits. Their affidavits of desistance were only presented by Atty. Godwin Valdez who testified that he assisted the private complainants in preparing their affidavits and he signed them as a witness. It also appears that only seven (7) persons submitted their affidavits of desistance, namely:
    a. Myrna Abalora, mother of the victims Sherwin Abalora and Rey Abalora
    b. Carmelita Elcamel, wife of Wilbur Elcamel;
    c. Leonora Amora, mother of victim Joel Amora;
    d. Nenita Alap-ap, wife of victim Carlito Alap-ap;
    e. Imelda Montero, wife of victim Manuel Montero;
    f. Margarita Redillas, mother of victim Hilario Jevy Redillas; and
    g. Rolando Siplon.

    From the records of the case before us, it cannot be determined whether there were affidavits of desistance executed by the relatives of the three (3)[38] other victims, namely: Meleubren Soronda, Pacifico Montero, Jr., and Alex Neri. The same records do not show whether they were notified of the hearing or had knowledge thereof. To be sure, it is not fair to expect the element of notice to be litigated before then Judge Agnir for Section 8, Rule 117 was yet inexistent at that time.
    The fact of notice to the offended parties was not raised either in the petition for prohibition with application for temporary restraining order or writ of preliminary injunction filed by respondent Lacson in the RTC of Manila, presided by Judge Pasamba, to enjoin the prosecutors from reinvestigating the said cases against him. The only question raised in said petition is whether the reinvestigation will violate the right of respondent Lacson against double jeopardy. Thus, the issue of whether or not the reinvestigation is barred by Section 8, Rule 117 was not tackled by the litigants.
    Nor was the fact of notice to the offended parties the subject of proof after the eleven (11) informations for murder against respondent Lacson and company were revived in the RTC of Quezon City presided by Judge Yadao. There was hardly any proceeding conducted in the case for respondent Lacson immediately filed a petition for certiorari in the appellate court challenging, among others, the authority of Judge Yadao to entertain the revived informations for multiple murder against him.
    This is not to be wondered at. The applicability of Section 8, Rule 117 was never considered in the trial court. It was in the Court of Appeals where respondent Lacson raised for the first time the argument that Section 8, Rule 117 bars the revival of the multiple murder cases against him. But even then, the appellate court did not require the parties to elucidate the crucial issue of whether notices were given to the offended parties before Judge Agnir ordered the dismissal of the cases against respondent Lacson and company. To be sure, there is a statement in the Decision of the appellate court to the effect that records show that the prosecution and the private offended parties were notified of the hearing x x x.[39] It is doubtful whether this finding is supported by the records of the case. It appears to be contrary to Judge Agnirs finding that only seven (7) of the complainants submitted affidavits of desistance.
    Indeed, the records of this case are inconclusive on the factual issue of whether the multiple murder cases against respondent Lacson are being revived within or beyond the 2-year bar. The reckoning date of the 2-year bar has to be first determined – – – whether it is from the date of the Order of then Judge Agnir dismissing the cases or from the dates the Order were received by the various offended parties or from the date of the effectivity of the new rule.
    If the cases were revived only after the 2-year bar, the State must be given the opportunity to justify its failure to comply with said timeline. The new rule fixes a timeline to penalize the State for its inexcusable delay in prosecuting cases already filed in courts. It can therefore present compelling reasons to justify the revival of cases beyond the 2-year bar.
    In light of the lack of or the conflicting evidence on the various requirements to determine the applicability of Section 8, Rule 117, this Court is not in a position to rule whether or not the re-filing of the cases for multiple murder against respondent Lacson should be enjoined. Fundamental fairness requires that both the prosecution and the respondent Lacson should be afforded the opportunity to be heard and to adduce evidence on the presence or absence of the predicate facts upon which the application of the new rule depends. They involve disputed facts and arguable questions of law. The reception of evidence on these various issues cannot be done in this Court but before the trial court.
    xxx xxx xxx

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  4. EN BANC
    [G.R. No. 149453. April 1, 2003]
    PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, petitioners, vs. PANFILO M. LACSON, respondent.
    R E S O L U T I O N
    CALLEJO, SR., J.:
    xxx xxx xxx.
    The Court shall resolve the issues seriatim.
    I. SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL PROCEDURE IS NOT APPLICABLE TO CRIMINAL CASES NOS. Q-99-81679 TO Q-99-81689.
    The petitioners aver that Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the essential requirements for its application were not present when Judge Agnir, Jr., issued his resolution of March 29, 1999. Disagreeing with the ruling of the Court, the petitioners maintain that the respondent did not give his express consent to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-99-81679 to Q-99-81689. The respondent allegedly admitted in his pleadings filed with the Court of Appeals and during the hearing thereat that he did not file any motion to dismiss said cases, or even agree to a provisional dismissal thereof. Moreover, the heirs of the victims were allegedly not given prior notices of the dismissal of the said cases by Judge Agnir, Jr. According to the petitioners, the respondents express consent to the provisional dismissal of the cases and the notice to all the heirs of the victims of the respondents motion and the hearing thereon are conditions sine qua non to the application of the time-bar in the second paragraph of the new rule.
    xxx xxx xxx
    The Court has reviewed the records and has found the contention of the petitioners meritorious.
    Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads:
    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.
    Having invoked said rule before the petitioners-panel of prosecutors and before the Court of Appeals, the respondent is burdened to establish the essential requisites of the first paragraph thereof, namely:
    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.
    The foregoing requirements are conditions sine qua non to the application of the time-bar in the second paragraph of the new rule. 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.[5]
    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[6] 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.
    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.[7]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.[8] The mere inaction or silence of the accused to a motion for a provisional dismissal of the case[9] or his failure to object to a provisional dismissal[10] does not amount to express consent.
    A motion of the accused for a provisional dismissal of a case is an express consent to such provisional dismissal.[11] 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[12] or that such revival or refiling is barred by the statute of limitations.[13]
    The case may be revived by the State within the time-bar either by the refiling of the Information or by the filing of a new Information for the same offense or an offense necessarily included therein. There would be no need of a new preliminary investigation.[14] However, in a case wherein after the provisional dismissal of a 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, a new preliminary investigation[15] must be conducted before an Information is refiled or a new Information is filed. A new preliminary investigation is also required if aside from the original accused, other persons are charged under a new criminal complaint for the same offense or necessarily included therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal. The accused must be accorded the right to submit counter-affidavits and evidence. After all, the fiscal is not called by the Rules of Court to wait in ambush; the role of a fiscal is not mainly to prosecute but essentially to do justice to every man and to assist the court in dispensing that justice.[16]
    In this case, the respondent has failed to prove that the first and second requisites of the first paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-99-81679 to Q-99-81689. Irrefragably, the prosecution did not file any motion for the provisional dismissal of the said criminal cases. For his part, the respondent merely filed a motion for judicial determination of probable cause and for examination of prosecution witnesses alleging that under Article III, Section 2 of the Constitution and the decision of this Court in Allado v. Diokno,[17] among other cases, there was a need for the trial court to conduct a personal determination of probable cause for the issuance of a warrant of arrest against respondent and to have the prosecutions witnesses summoned before the court for its examination. The respondent contended therein that until after the trial court shall have personally determined the presence of probable cause, no warrant of arrest should be issued against the respondent and if one had already been issued, the warrant should be recalled by the trial court. He then prayed therein that:
    1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted by this Honorable Court, and for this purpose, an order be issued directing the prosecution to present the private complainants and their witnesses at a hearing scheduled therefor; and
    2) warrants for the arrest of the accused-movants be withheld, or, if issued, recalled in the meantime until the resolution of this incident.
    Other equitable reliefs are also prayed for.[18]
    The respondent did not pray for the dismissal, provisional or otherwise, of Criminal Cases Nos. Q-99-81679 to Q-99-81689. Neither did he ever agree, impliedly or expressly, to a mere provisional dismissal of the cases. In fact, in his reply filed with the Court of Appeals, respondent emphasized that:
    … An examination of the Motion for Judicial Determination of Probable Cause and for Examination of Prosecution Witnesses filed by the petitioner and his other co-accused in the said criminal cases would show that the petitioner did not pray for the dismissal of the case. On the contrary, the reliefs prayed for therein by the petitioner are: (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution; and (2) that warrants for the arrest of the accused be withheld, or if issued, recalled in the meantime until the resolution of the motion. It cannot be said, therefore, that the dismissal of the case was made with the consent of the petitioner. A copy of the aforesaid motion is hereto attached and made integral part hereof as Annex A.[19]
    During the hearing in the Court of Appeals on July 31, 2001, the respondent, through counsel, categorically, unequivocally, and definitely declared that he did not file any motion to dismiss the criminal cases nor did he agree to a provisional dismissal thereof, thus:
    JUSTICE SALONGA:
    And it is your stand that the dismissal made by the Court was provisional in nature?
    ATTY. FORTUN:
    It was in (sic) that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial.
    JUSTICE SALONGA:
    And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except when it is with the express conformity of the accused.
    ATTY. FORTUN:
    That is correct, Your Honor.
    JUSTICE SALONGA:
    And with notice to the offended party.
    ATTY. FORTUN:
    That is correct, Your Honor.
    JUSTICE SALONGA:
    Was there an express conformity on the part of the accused?
    ATTY. FORTUN:
    There was none, Your Honor. We were not asked to sign any order, or any statement, which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal. Pumapayag ka ba dito. Puwede bang pumirma ka?
    JUSTICE ROSARIO:
    You were present during the proceedings?
    ATTY. FORTUN:
    Yes, Your Honor.
    JUSTICE ROSARIO:
    You represented the petitioner in this case?
    ATTY. FORTUN:
    That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case.
    JUSTICE GUERRERO:
    Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause?
    ATTY. FORTUN:
    Yes, Your Honor.
    JUSTICE GUERRERO:
    Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do?
    ATTY. FORTUN:
    That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present the private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident.
    JUSTICE GUERRERO:
    There is no general prayer for any further relief?
    ATTY. FORTUN:
    There is but it simply says other equitable reliefs are prayed for.
    JUSTICE GUERRERO:
    Dont you surmise Judge Agnir, now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case?
    ATTY. FORTUN:
    Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal.
    JUSTICE GUERRERO:
    If you did not agree to the provisional dismissal did you not file any motion for reconsideration of the order of Judge Agnir that the case should be dismissed?
    ATTY. FORTUN:
    I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client.
    JUSTICE GUERRERO:
    Continue.[20]
    In his memorandum in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that:
    Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC: Upon raffle, the case was assigned to Branch 81. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSGs claim.[21]
    The respondents admissions made in the course of the proceedings in the Court of Appeals are binding and conclusive on him. The respondent is barred from repudiating his admissions absent evidence of palpable mistake in making such admissions.[22]
    To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-81689 would be to add to or make exceptions from the new rule which are not expressly or impliedly included therein.This the Court cannot and should not do.[23]
    The Court also agrees with the petitioners contention that no notice of any motion for the provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the hearing thereon was served on the heirs of the victims at least three days before said hearing as mandated by Rule 15, Section 4 of the Rules of Court. It must be borne in mind that in crimes involving private interests, the new rule requires that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds, including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecutions physical and other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against his property.
    In the case at bar, even if the respondents motion for a determination of probable cause and examination of witnesses may be considered for the nonce as his motion for a provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims were not notified thereof prior to the hearing on said motion on March 22, 1999. It must be stressed that the respondent filed his motion only on March 17, 1999 and set it for hearing on March 22, 1999 or barely five days from the filing thereof. Although the public prosecutor was served with a copy of the motion, the records do not show that notices thereof were separately given to the heirs of the victims or that subpoenae were issued to and received by them, including those who executed their affidavits of desistance who were residents of Dipolog City or Pian, Zamboanga del Norte or Palompon, Leyte.[24] There is as well no proof in the records that the public prosecutor notified the heirs of the victims of said motion or of the hearing thereof on March 22, 1999. Although Atty. Valdez entered his appearance as private prosecutor,[25] he did so only for some but not all the close kins of the victims, namely, Nenita Alap-ap, Imelda Montero, Margarita Redillas, Rufino Siplon, Carmelita Elcamel, Myrna Abalora, and Leonora Amora who (except for Rufino Siplon)[26] executed their respective affidavits of desistance.[27] There was no appearance for the heirs of Alex Neri, Pacifico Montero, Jr., and Meleubren Sorronda. There is no proof on record that all the heirs of the victims were served with copies of the resolution of Judge Agnir, Jr. dismissing the said cases. In fine, there never was any attempt on the part of the trial court, the public prosecutor and/or the private prosecutor to notify all the heirs of the victims of the respondents motion and the hearing thereon and of the resolution of Judge Agnir, Jr. dismissing said cases. The said heirs were thus deprived of their right to be heard on the respondents motion and to protect their interests either in the trial court or in the appellate court.
    Since the conditions sine qua non for the application of the new rule were not present when Judge Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second paragraph of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus revive or refile Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple murder against the respondent.
    xxx xxx xxx.
    On the other hand, the time-bar under Section 8 of Rule 117 is akin to 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.[35]
    The time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal Code, a substantive law.[36] It is but a limitation of the right of the State to revive a criminal case against the accused after the Information had been filed but subsequently provisionally dismissed with the express consent of the accused. Upon the lapse of the timeline under the new rule, the State is presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same crime or another crime necessarily included therein.[37] He is spared from the anguish and anxiety as well as the expenses in any new indictments.[38] The State may revive a criminal case beyond the one-year or two-year periods provided that there is a justifiable necessity for the delay.[39] By the same token, if a criminal case is dismissed on motion of the accused because the trial is not concluded within the period therefor, the prescriptive periods under the Revised Penal Code are not thereby diminished.[40]But whether or not the prosecution of the accused is barred by the statute of limitations or by the lapse of the time-line under the new rule, the effect is basically the same. As the State Supreme Court of Illinois held:
    This, in effect, enacts that when the specified period shall have arrived, the right of the state to prosecute shall be gone, and the liability of the offender to be punished to be deprived of his liberty shall cease. Its terms not only strike down the right of action which the state had acquired by the offense, but also remove the flaw which the crime had created in the offenders title to liberty. In this respect, its language goes deeper than statutes barring civil remedies usually do. They expressly take away only the remedy by suit, and that inferentially is held to abate the right which such remedy would enforce, and perfect the title which such remedy would invade; but this statute is aimed directly at the very right which the state has against the offender the right to punish, as the only liability which the offender has incurred, and declares that this right and this liability are at an end. [41]
    xxx xxx xxx
    In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice.[50] The petitioners failed to show a manifest shortness or insufficiency of the time-bar.
    The new rule was conceptualized by the Committee on the Revision of the Rules and approved by the Court en banc primarily to enhance the administration of the criminal justice system and the rights to due process of the State and the accused by eliminating the deleterious practice of trial courts of provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly, either with no time-bar for the revival thereof or with a specific or definite period for such revival by the public prosecutor. There were times when such criminal cases were no longer revived or refiled due to causes beyond the control of the public prosecutor or because of the indolence, apathy or the lackadaisical attitude of public prosecutors to the prejudice of the State and the accused despite the mandate to public prosecutors and trial judges to expedite criminal proceedings.[51]
    It is almost a universal experience that the accused welcomes delay as it usually operates in his favor,[52] especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb the hushed inaction by which dominant cases have been known to expire.[53]
    The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of the State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence may have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes proof of any fact more difficult.[54] The accused may become a fugitive from justice or commit another crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult it is to prove the crime.
    On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail, the chances of the accused for employment, curtail his association, subject him to public obloquy and create anxiety in him and his family. He is unable to lead a normal life because of community suspicion and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the presumption of innocence.[55] He may also lose his witnesses or their memories may fade with the passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the fairness of the entire criminal justice system.[56]
    The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the administration of the criminal justice system for the benefit of the State and the accused; not for the accused only.
    xxx xxx xxx.
    The two-year period fixed in the new rule is for the benefit of both the State and the accused. It should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein provided merely to benefit the accused. For to do so would cause an injustice of hardship to the State and adversely affect the administration of justice in general and of criminal laws in particular.
    xxx xxx xxx.
    Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to both the accused, on one hand, and the State and offended party, on the other.
    xxx xxx xxx.

    Like

  5. EN BANC

    [G.R. No. 149453. October 7, 2003.]

    PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUÑO, STATE PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY PROSECUTOR. CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO ARELLANO, Petitioners, v. PANFILO M. LACSON, Respondent.

    R E S O L U T I O N

    CALLEJO, SR., J.:

    xxx xxx xxx
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    In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two years for the revival of criminal cases provisionally dismissed with the express consent of the accused and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the Court balanced the societal interests and those of the accused for the orderly and speedy disposition of criminal cases with minimum prejudice to the State and the accused. It took into account the substantial rights of both the State and of the accused to due process. The Court believed that the time limit is a reasonable period for the State to revive provisionally dismissed cases with the consent of the accused and notice to the offended parties. The time-bar fixed by the Court must: be respected unless it is shown that the period is manifestly short or insufficient that the rule becomes a denial of justice. 12

    xxx xxx xxx.

    In this case, when the Court approved Section 8, it intended the new rule to be applied prospectively and not retroactively, for if the intention of the Court were otherwise, it would defeat the very purpose for which it was intended, namely, to give the State a period of two years from notice of the provisional dismissal of criminal cases with the express consent of the accused. It would be a denial of the State’s right to due process and a travesty of justice for the Court to apply the new rule retroactively in the present case as the respondent insists, considering that the criminal cases were provisionally dismissed by Judge Agnir, Jr. on March 29, 1999 before the new rule took effect on December 1, 2000. A retroactive application of the time-bar will result in absurd, unjust and oppressive consequences to the State and to the victims of crimes and their heirs.chanrob1es virtua1 1aw 1ibrary

    xxx xxx xxx.
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    The respondent avers that the requirement for notices to the offended parties under Section 8 is a formal and not an essential requisite. In criminal cases, the offended party is the State and the role of the private complainant is limited to the determination of the civil liability of the accused. According to the respondent, notice to the prosecution provides sufficient safeguard for the private complainant to recover on the civil liability of the accused based on the delicts; after all, the prosecution of the offense is under the control and direction of the public prosecutor.chanrob1es virtua1 1aw 1ibrary

    The contentions of the respondent have no merit.

    First. The issue posed by the respondent in the CA and in this Court are the same. To recall, in Civil Case No. 01-100933, 31 the respondent 32 sought injunctive relief from the RTC of Manila on his claim that in conducting a preliminary investigation in Criminal Cases Nos. 01-101102 to 01-101112, the petitioners thereby placed him in double jeopardy under Section 7, Rule 117 of the RRCP. 33 When the RTC denied his plea for injunctive relief, the respondent filed his petition for certiorari in the CA, again invoking his right against double jeopardy, praying that:chanrob1es virtual 1aw library

    13. Inasmuch as the case subject of the “preliminary investigation” was dismissed for the reasons mentioned, there currently exists no complaint upon which a valid investigation can be had in light of the clear provisions of Rule 110 which requires the existence of a “sworn written statement charging a person with an offense” as basis for the commencement of a preliminary investigation under Rule 112.

    For petitioner, the investigation covers exactly the same offenses over which he had been duly arraigned and a plea validly entered before the Sandiganbayan (in Criminal Cases Nos. 23047 to 57) before its remand to the QC RTC. Hence, to proceed therewith on similar charges will put him in jeopardy of being twice punished therefor (Article III, §21, Constitution). 34

    The respondent (petitioner therein) contended that the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 by Judge Agnir, Jr. amounted to a judgment of acquittal; hence, he could no longer be charged and prosecuted anew for the same offense without violating his right against double jeopardy. However, the respondent filed a second amended petition wherein he invoked for the first time Section 8 of Rule 117 of the RRCP:chanrob1es virtual 1aw library

    (e) the new criminal cases for Murder filed by respondents against petitioner and the other accused on June 6, 2001 (docketed as Criminal Cases Nos. 01-101102 to 01-101112) and pending before respondent Judge Yadao (Annex B) is dismissible on its face as they involve exactly the same accused, facts, and offenses which had previously been dismissed by the QC RTC in Criminal Cases Nos. Q-99-81679 to 89 on March 29, 1999, hence, can no longer be revived two (2) years after such dismissal in accordance with the clear provisions of Section 8, Rule 117. 35

    Indeed, the CA granted the respondent’s petition based on Section 8, Rule 117 of the RRCP. In this case, the respondent invoked the same rule and the Constitution. Thus, during the oral arguments in this Court, the respondent, through counsel, admitted that he was indeed invoking Section 8 anew and the provisions of the Constitution on double jeopardy:chanrob1es virtual 1aw library

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    You are saying that Sen. Lacson can no longer be prosecuted forever for that crime, for the killing of the 11 in 1995?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That is my submission, Your Honor.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    Let us see your reason for it?

    ATTY. FORTUN: 36

    First, are you saying that double jeopardy applies or not?

    JUSTICE PANGANIBAN: 37

    Allow me to qualify the effects of double jeopardy occur with permanent dismissal that is my submission.

    ATTY. FORTUN: 38

    No, no, I am not talking of the effects, I am talking of the doctrine, you are not invoking the doctrine of double jeopardy?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Your Honor, double jeopardy does not apply Section 8, 117 they, are (interrupted)

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    That is right.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    They are two different claims.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    That is what I am trying to rule out so that we do not have to discuss it.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Very well, Your Honor.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    You are not invoking double jeopardy?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    As I mentioned we are saying that the effects of a permanent dismissal vest the effects (interrupted)

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    No, I am not talking of the effects, I am asking about the application, you are not asking the Court to apply the doctrine of double jeopardy to prevent a prosecution of Mr. Lacson?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Because the element of double jeopardy cannot apply 8, 117.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    So, the answer is yes?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    No, Your Honor, we were saying that precisely a permanent dismissal vests the rights of double jeopardy upon the accused who invokes it.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    What you are saying is the effects, I am not asking about the effects, I will ask that later.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    They are two different (interrupted)

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    Later, I am asking about doctrines. Since you are not invoking the doctrine of double jeopardy you are resting your case win or lose, sink or sail on the application of 8, 117?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    On the constitutional right of the accused under Section 16 of Article 3 which is speedy disposition of cases which implemented 8, 117, that is our arguments in this bar.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    Are you not resting on 8,117?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That and the constitutional provision, Your Honor.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    So, you are resting on 8,117?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Not exclusive, Your Honor.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    And the Constitution?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    The Constitution which gave life to 8,117.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    To speedy disposition?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor.

    JUSTICE PANGANIBAN:chanrob1es virtual 1aw library

    Can a Court, let us see your theory then — your theory rest on two provisions: first, the Rules of Court 8,117 and Second, the Constitution on speedy disposition?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor. 39

    Second. The respondent’s answers to the questions of Madame Justice Josefina Salonga during the hearing in the CA where he admitted, through counsel, that he gave no express conformity to the dismissal of the cases by Judge Agnir, Jr., were in relation to Section 8 of Rule 117 and not to Section 7 of Rule 117 on double jeopardy, thus:chanrob1es virtual 1aw library

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    Do we get it from you that it is your stand that this is applicable to the case at bar?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    It is my submission, that it is, Your Honor. In addition, of course, to my proposition that Mr. Lacson is covered by the rule on double jeopardy as well, because he had already been arraigned before the Sandiganbayan prior to the case being remanded to the RTC.

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    You are referring to those cases which were dismissed by the RTC of Quezon City.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor.

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    And it is your stand that the dismissal made by the Court was provisional in nature?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    It was in that the accused did not ask for it. What they wanted at the onset was simply a judicial determination of probable cause for warrants of arrest issued. Then Judge Agnir, [Jr.] upon the presentation by the parties of their witnesses, particularly those who had withdrawn their affidavits, made one further conclusion that not only was this case lacking in probable cause for purposes of the issuance of an arrest warrant but also it did not justify proceeding to trial.

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    And it is expressly provided under Section 8 that a case shall not be provisionally dismissed except [if] it is with the express conformity of the accused.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That is correct, Your Honor.

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    And with notice to the offended party.

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That is correct, Your Honor.

    JUSTICE SALONGA:chanrob1es virtual 1aw library

    Was there an express conformity on the part of the accused?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    There was none, Your Honor. We were not asked to sign any order, or any statement which would normally be required by the Court on pre-trial or on other matters, including other provisional dismissal. My very limited practice in criminal courts, Your Honor, had taught me that a judge must be very careful on this matter of provisional dismissal. In fact, they ask the accused to come forward, and the judge himself or herself explains the implications of a provisional dismissal. 40

    The respondent, through counsel, even admitted that despite his plea for equitable relief in his motion for a judicial determination of probable cause in the RTC, he did not agree to a provisional dismissal of the cases. The respondent insisted that the only relief he prayed for before Judge Agnir, Jr. was that warrants for his arrest be withheld pending a finding of probable cause. He asserted that the judge did not even require him to agree to a provisional dismissal of the cases:chanrob1es virtual 1aw library

    JUSTICE ROSARIO:chanrob1es virtual 1aw library

    You were present during the proceedings?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor.

    JUSTICE ROSARIO:chanrob1es virtual 1aw library

    You represented the petitioner in this case?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That is correct, Your Honor. And there was nothing of that sort which the good Judge Agnir, [Jr.] who is most knowledgeable in criminal law, had done in respect of provisional dismissal or the matter of Mr. Lacson agreeing to the provisional dismissal of the case.

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    Now, you filed a motion, the other accused then filed a motion for a judicial determination of probable cause?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor.

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    Did you make any alternative prayer in your motion that if there is no probable cause what should the Court do?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    That the arrest warrants only be withheld. That was the only prayer that we asked. In fact, I have a copy of that particular motion, and if I may read my prayer before the Court, it said: “Wherefore, it is respectfully prayed that (1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted, and for this purpose, an order be issued directing the prosecution to present private complainants and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of this incident.”cralaw virtua1aw library

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    There is no general prayer for any further relief?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    There is but it simply says other equitable reliefs are prayed for.

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    Don’t you surmise Judge Agnir, [Jr.] now a member of this Court, precisely addressed your prayer for just and equitable relief to dismiss the case because what would be the net effect of a situation where there is no warrant of arrest being issued without dismissing the case?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we did not agree to the provisional dismissal, neither were we asked to sign any assent to the provisional dismissal.

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    If you did not agree to the provisional dismissal, did you not file any motion for reconsideration of the order of Judge Agnir, [Jr.] that the case should be dismissed?

    ATTY. FORTUN:chanrob1es virtual 1aw library

    I did not, Your Honor, because I knew fully well at that time that my client had already been arraigned, and the arraignment was valid as far as I was concerned. So, the dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did not take any further step in addition to rocking the boat or clarifying the matter further because it probably could prejudice the interest of my client.

    JUSTICE GUERRERO:chanrob1es virtual 1aw library

    Continue. 41

    In his memorandum, in lieu of the oral argument filed with the Court of Appeals, the respondent declared in no uncertain terms that:chanrob1es virtual 1aw library

    Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the cases. The records were remanded to the QC RTC. Upon raffle, the case was assigned to Branch 91. Petitioner and the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent OSG’s claim. 42

    Section 4, Rule 129 of the Revised Rules of Court reads:chanrob1es virtual 1aw library

    Sec. 4. Judicial admissions. — An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

    A judicial admission is a formal statement made either by a party or his or her attorney, in the course of judicial proceeding which removes an admitted fact from the field of controversy. It is a voluntary concession of fact by a party or a party’s attorney during such judicial proceedings, including admissions in pleadings made by a party. 43 It may occur at any point during the litigation process. An admission in open court is a judicial admission. 44 A judicial admission binds the client even if made by his counsel. 45 As declared by this Court:chanrob1es virtual 1aw library

    . . . [I]n fact, “judicial admissions are frequently those of counsel or of attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made . . . for the purpose of dispensing with proof of some fact, . . . they bind the client, whether made during, or even after the trial.” 46

    When the respondent admitted that he did not move for the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 in his motion for a judicial determination of probable cause, and that he did not give his express consent to the provisional dismissal of the said cases, he in fact admitted that one of the essential requisites of Section 8, Rule 117 was absent.chanrob1es virtua1 1aw 1ibrary

    The respondent’s contention that his admissions made in his pleadings and during the hearing in the CA cannot be used in the present case as they were made in the course of a different proceeding does not hold water. It should be borne in mind that the proceedings before the Court was by way of an appeal under Rule 45 of the Rules of Court, as amended, from the proceedings in the CA; as such, the present recourse is but a mere continuation of the proceedings in the appellate court. This is not a new trial, but a review of proceedings which commenced from the trial court, which later passed through the CA. The respondent is bound by the judicial admissions he made in the CA, and such admissions so hold him in the proceedings before this Court. As categorically stated in Habecker v. Clark Equipment Company: 47

    . . . [J]udicial admissions on issues of fact, including those made by counsel on behalf of a client during a trial, are binding “for the purpose of the case . . . including appeals.”cralaw virtua1aw library

    While it may be true that the trial court may provisionally dismiss a criminal case if it finds no probable cause, absent the express consent of the accused to such provisional dismissal, the latter cannot thereafter invoke Section 8 to bar a revival thereof. Neither may the accused do so simply because the public prosecutor did not object to a motion of the accused for a judicial determination of probable cause or file a motion for the reconsideration of the order of dismissal of the case. Even a cursory reading of the respondent’s motion for a judicial determination of probable cause will show that it contained no allegation that there was no probable cause for the issuance of a warrant for the respondent’s arrest as a prayer for the dismissal of the cases. The respondent was only asking the court to determine whether or not there was probable cause for the issuance of a warrant for his arrest and in the meantime, to hold in abeyance the issuance of the said warrant. Case law has it that a prayer for equitable relief is of no avail, unless the petition states facts which will authorize the court to grant such relief. 48 A court cannot set itself in motion, nor has it power to decide question except as presented by the parties in their pleadings. Anything that is resolved or decided beyond them is coram non judice and void. 49

    Third. There is no need for the Court to remand the instant case to the trial court to enable the respondent to adduce post facto evidence that the requisite notices under Section 8 had been complied with by Judge Agnir, Jr. The Court has thoroughly examined the voluminous records from the Sandiganbayan and the RTC 50 and found no proof that the requisite notices were even served on all the heirs of the victims. The respondent himself admitted that, as held by this Court, in its May 28, 2002 Resolution, “Judge Agnir, Jr. could not have complied with the mandate under Section 8 because said rule had yet to exist.” 51

    xxx xxx xxx

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  6. A.M. No. 12-11-2-SC
    GUIDELINES FOR DECONGESTING HOLDING JAILS BY ENFORCING THE RIGHTS OF ACCUSED PERSONS TO BAIL AND TO SPEEDY TRIAL

    xxx xxx xxx.
    Sec. 14. Revival of cases provisionally dismissed.- The one or two- year period allowed for reviving a criminal case that has been provisionally dismissed shall be reckoned from the issuance of the order of dismissal. The dismissal shall become automatically permanent if the case is not revived within the required period. Such permanent dismissal shall amount to an adjudication of the case on the merits.
    xxx xxx xxx

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  7. EN BANC

    ARIEL M. LOS BAOS, 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
    x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x
    DECISION
    xxx xxx xxx.

    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 CAs order is legally proper.

    xxx xxx xxx

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  8. Republic of the Philippines
    SUPREME COURT
    Manila
    THIRD DIVISION
    G.R. No. 183994 June 30, 2014
    WILLIAM CO a.k.a. XU QUING HE, Petitioner,
    vs.
    NEW PROSPERITY PLASTIC PRODUCTS, represented by ELIZABETH UY,1 Respondent.
    D E C I S I O N
    xxx xxx xxx.
    Assuming that the criminal cases were only provisionally dismissed, Co further posits that such dismissal became permanent one year after the issuance of the June 9, 2003 Order, not after notice to the offended party. He also insists that both the filing of the motion to revive and the trial court’s issuance of the order granting the revival must be within the one-year period. Lastly, even assuming that the one-year period to revive the criminal cases started on July 2, 2003 when Uy received the June 9, 2003 Order, Co asserts that the motion was filed one day late since year 2004 was a leap year.
    The petition is unmeritorious.
    xxx xxx xxx.
    Even if We are to squarely resolve the issues repeatedly raised in the present petition, Co’s arguments are nonetheless untenable on the grounds as follows:
    xxx xxx xxx,
    Second, Co is burdened to establish the essential requisites of the first paragraph of Section 8, Rule 117 of the Rules, which are conditions sine qua non to the application of the time-bar in the second paragraph thereof, to wit: (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; and (4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.31 In this case, it is apparent from the records that there is no notice of any motion for the provisional dismissal of Criminal Cases Nos. 206655-59, 206661-77 and 209634 or of the hearing thereon which was served on the private complainant at least three days before said hearing as mandated by Section 4, Rule 15 of the Rules.32 The fact is that it was only in open court that Co moved for provisional dismissal “considering that, as per records, complainant had not shown any interest to pursue her complaint.”33 The importance of a prior notice to the offended party of a motion for provisional dismissal is aptly explained in People v. Lacson:34
    x x x It must be borne in mind that in crimes involving private interests, the new rule requires that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for the provisional dismissal of the criminal case. Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing. The proof of such service must be shown during the hearing on the motion, otherwise, the requirement of the new rule will become illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds, including: (a) the collusion between the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional dismissal of the case with the consequent release of the accused from detention would enable him to threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction, provide opportunity for the destruction or loss of the prosecution’s physical and other evidence and prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against his property.35
    xxx xxx xxx.
    Fourth, the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one-year period is unsustainable. Such interpretation is not found in the Rules. Moreover, to permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply. Judicial notice must be taken of the fact that most, if not all, of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions. Hence, they could not be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time. It is likewise possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.
    Fifth, the fact that year 2004 was a leap year is inconsequential to determine the timeliness of Uy’s motion to revive the criminal cases. What is material instead is Co’s categorical admission that Uy is represented by a private counsel who only received a copy of the June 9, 2003 Order on July 3, 2003. Therefore, the motion was not belatedly filed on July 2, 2004. Since the period for filing a motion to revive is reckoned from the private counsel’s receipt of the order of provisional dismissal, it necessarily follows that the reckoning period for the permanent dismissal is likewise the private counsel’s date of receipt of the order of provisional dismissal.
    xxx xxx xxx.

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