Insofar as prosecution of civil actions under Rule lll is concerned, the 2000 Rules on Criminal Procedure has returned to the l94l Rule in th

1THE 2000 RULES OF CRIMINAL PROCEDURE

By Justice Ricardo P. Galvez (C.A., Ret.)

Former Solicitor General

Page 39 of 39

THE 2000 RULES OF CRIMINAL PROCEDURE

By Justice Ricardo P. Galvez

Associate Justice, Court of Appeals (Ret.)

Former Solicitor General

I. JURISDICTION

A. Jurisdiction over the Subject Matter

1. The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial Courts, and Municipal Circuit Trial Courts, shall have jurisdiction over all criminal cases where the penalty imposed is imprisonment not exceeding prision correccional or six years, regardless of the amount of the fine, the civil liability, or the accessory penalties (R.A. 7691).

2. The Regional Trial Courts shall have jurisdiction over all criminal cases where the penalty imposed exceeds prision correccional or six years imprisonment regardless of the amount of the fine, the civil liability, or the attendant accessory penalties. (Ibid.)

(a) In cases where the only penalty provided by law is a fine, the jurisdiction is determined by B.P. 129 (Sec.32 (2) which provides that where the amount of the fine does not exceed P4,0000, the same shall fall under the jurisdiction of the Municipal Trial Court, In excess of such amount, the Regional Trial Court.

(b) However, in cases involving damage to property through criminal negligence, the case shall fall under the exclusive original jurisdiction of the Municipal Trial Courts regardless of the amount of the fine.

(c) Regional Trial Courts, designated by the Supreme Court to act as Family Courts, shall have exclusive jurisdiction to hear and decide (1) Criminal Cases where one or more of the accused is below eighteen (18) years of age but no less than nine (9) years of age, or where one or more of the victims is a minor at the time of the commission of the offense; Cases of domestic violence against women and children. If an act committed against women and children likewise constitutes a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. However, if any question involving any of the above matters should arise as an incident in any case pending in the regular courts , said incident shall be determined by that court (R.A. 8369, otherwise known as the Family Courts Act of 1997)

(d) Notwithstandng the ruling in Fabian vs. Desierto, 295 SCRA, 494 (1998), the appellate jurisdiction of the Court of Appeals extends only to decisions of the Supreme Court in administrative cases petitions for certiorari arising from criminal cases should be taken to the Supreme Court (Kuizon vs. Desierto, 354 SCRA 158 [2001])

3. The Sandiganbayan. upon the other hand, shall have jurisdiction over all criminal cases filed against public officials belonging to Salary Grade 27, charged with offenses in relation to their offices, and these facts are alleged in the information. (R.A. 8249;Republic vs. Asuncion,231 SCRA 211) An offense is considered as committed in relation to the office if the offense cannot exist without the office or that the office must be a constituent element of the crime as defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code, and that the offense must be intimately connected with the office of the offender perpetuated while he was in the performance , though improper or irregular, of his official functions. Moreover, the fact that the offense was committed in relation to the office must be alleged in the information, because of the unbending rule that jurisdiction is determined by the allegations in the information. (Republic vs.Asuncion, 231 SCRA 211; Aguinaldo vs.Dumagas, G.R. No. 98452, en banc resolution, Sept. 26, 1991). However, in Lacson vs. Executive Secretary, 301 SCRA 298 [1999], en banc, it was held that the mere allegation in an information that the offense was committed by the accused public officer in relation to his office is not sufficient. The phrase is merely a conclusion of law, not a factual averment that would show the accuseds official duties. What is controlling is the specific factual allegation in the amended information that would indicate the close intimacy between the discharge of the accuseds official duties and the commission of the offense charged, in order to qualify the crime as having been committed in relation to public office. This ruling was reiterated in Escobal vs. Garchitorena, G.R.No. 124644, February 5, 2004.The enumeration in R.A. 8249 as to who are the officials considered to belong to Grade 27 is not exclusive. The determination of such grade depends upon (a) the nature of the position, (b) level of difficulty, and responsibilities etc., attendant to the office.. (Binay vs. Sandiganbayan, G.R. 120680-83, Oct.1, 1999; Organo vs. Sandiganbayan, G.R. No. 133525, Sept. 29, 1999; Llorente vs. Sandiganbayan, G.R. No. 122297-98, Jan. 19,2000)

4. Under R.A. 9282 reorganizing the Court Tax Appeals approved on March 30, 2004 and which took effect after fifteen (15) days following its publication in newspapers of general circulation, the Court of Tax Appeals has jurisdiction over the following criminal cases:

a. Exclusive original jurisdiction over all criminal offenses arising from violations of the National Internal Revenue Code or Tariff and Customs Code and other laws administered by the Bureau of Internal Revenue or the Bureau of Customs: Provided, however, That offenses or felonies mentioned in this paragraph where the principal amount of taxes or fees, exclusive of charges and penalties, claimed is less than One million pesos (P1,000,000.00) or where there is no specified amount claimed shall be tried by the regular Courts and the jurisdiction of the CTA shall be appellate. Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the corresponding civil action for the recovery of civil liability for taxes and penalties shall at all times be simultaneously instituted with, and jointly determined in the same proceeding by the CTA, the filing of the criminal action being deemed necessarily carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately from the criminal action will be recognized.

b. Exclusive appellate jurisdiction in criminal offenses: (a) Over appeals from judgments, resolutions or orders of the Regional Trial Courts in tax cases originally decided by them, in their respective territorial jurisdiction; (b) Over petitions for review of the judgments, resolutions or orders of the Regional Trial Courts in the exercise of their appellate jurisdiction over tax cases originally decided by the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in their respective jurisdiction.

5. Under R.A. 9262, otherwise known as the Anti-Violence Against Women and their Children Act of 2004, approved on March 8, 2004, regional trial courts designated as Family Courts shall have original and exclusive jurisdiction over cases of violence against women and their children under said law. In the absence of such court in the place where the offense was committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of the complainant.

6. The Constitution, Section 15 of the Ombudsman Act of 1989 and Section 4 of

the Sandiganbayan Law, as amended, do not give the Ombudsman exclusive

jurisdiction to investigate offenses committed by public officers or employees. The authority of the Ombudsman to investigate offenses involving public officers or employees is concurrent with other government investigating agencies such as provincial, city, and state prosecutors. However, the Ombudsman, in the exercise of its primary jurisdiction over cases cognizable by the Sandiganbayan, may take over, at any stage, from any investigating agency of the government, the investigation of such cases. (Honasan vs. Panel of Investigating Prosecutors of the Department of Justice, et al., G.R. No. 159747, April 13, 2004)

7. Jurisdiction of courts over the subject-matter is conferred exclusively by the Constitution and by law. It is determined by the allegations in the complaint and cannot be made to depend on the defenses of the private respondent. (Republic vs. Tan, et al., G.R. No. 145255, March 30, 2004)

B. Jurisdiction over the person of the accused

1. Where the accused voluntarily submits himself to the court or was duly arrested, the court acquires jurisdiction over his person. (Santiago vs.Ombudsman, 217 SCRA 633)

2. Any irregularity attendant to an arrest is cured when the accused fails to raise such issue before arraignment and when he voluntarily participates in the trial (People vs.Majid Samson, G.R. No. 100911, May 16, 1995; People vs. Matugas, G.R. No. 139698-726, Feb. 20, 2002)

3. When the appearance is by motion for the purpose of objecting to the jurisdiction of the court over the person of the accused, it must be for the sole and distinct purpose of objecting to said jurisdiction (Palma vs. Court of Appeals, 232 SCRA 714 [1994])

4. Basic is the rule that before a court can act upon the case of an accused it must first acquire jurisdiction over his person (People vs. Sandiganbayan, et al., 447 SCRA 291 [2004])

II. PROSECUTION OF OFFENSES (Rule 110)

A. How Criminal Actions are instituted:

1. For offenses where a preliminary investigation is required (Sec 1,par. 2,Rule 112) by filing the complaint with the (a) Provincial or City Prosecutors and their assistants; (b) Judges of the Municipal Trial Courts and Municipal Trial Courts; (c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law.

2. For offenses where a preliminary investigation is not required, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts. However, in Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters.

3. For offenses committed by juveniles (below eighteen years of age but not less than nine years of age), by filing a complaint with the prosecutor or the municipal trial court in cases where a preliminary investigation is required. In Manila and other chartered cities, if their charters so provide, the complaint shall be filed with the Office of the City Prosecutor. It may also be filed directly with the Family Court if no preliminary investigation is required under Section 1 of Rule 112 of the Revised Rules of Criminal Procedure. All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the public prosecutor assigned to the Family Court. (The Rules on Juveniles in Conflict With the Law which took effect on April 15, 2002)

4. . The filing of a criminal complaint with the Provincial or City Prosecutor shall interrupt the running of the prescriptive period of the offense charged unless otherwise provided in special laws (Reodica vs. Court of Appeals, 292 SCRA 87(1997).

NOTE: The last paragraph of Section 1. Rule 110 does away with the rulings in People vs. Olarte, 19 SCRA and Zaldivia vs. Reyes, 211 SCRA 277.

Complaint or Information is required to be (1) in writing; (2) in the name of the People of the Philippines, and (3) against all persons who appear to be responsible for the offense involved.

(1) The mandatory duty of the prosecuting officer does not mean that he has no discretion at all in determining whether the evidence presented before him is sufficient to justify a reasonable belief that a person has committed an offense (Guiao vs. Figueroa, 94 Phil. 1018;People vs. Solana, 6 SCRA 60)

(2) Sections 8 and 9, Rule 110 of the 2000 Rules now require that both the qualifying and aggravating circumstances must be specifically alleged in the information to be appreciated as such. Under the old Rules, only the qualifying circumstances were required to be alleged in the information, and aggravating circumstances, even if not alleged, could still be appreciated, except in cases where an aggravating circumstance would result in the imposition of the death penalty. (People vs. Lab-eo, G.R. No. 133438, Jan. 16,2002)

(3) There is no need to include anymore in the information an accused whose discharge as a state witness is to be sought later on, if said accused was admitted as a state witness under R.A. 6981, otherwise known as the Witness Protection Program Law (Webb vs. De Leon, G.R. No. 121234,121245, and 121297, August 23,1995)

(4) With respect to the averment of the date the offense was committed in the complaint or information: (a) where time is not a material ingredient of the offense, it is sufficient that the information alleges that the act constitutive of the offense was committed at a time as near to the actual date when the same was carried out, but (2) where time is a material ingredient of the offense, it must be correctly alleged in the information. (People vs. Dinglasan, G.R. No. 133645, September 17, 2002)

B. Who must prosecute criminal actions (Sec. 5, Rule 110)

1. All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to the end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. (Supreme Court Resolution En Banc A.M. No. 02-2-07-SC dated April 10, 2002, to take effect on May 1, 2002) However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.(See OCA Circular No. 39-2002 clarifying amendment to Sec.5,Rule 110 of the Revised Rules of Criminal Procedure and superceding OCA Circular No. 14-2002dated June 1, 2002)

2. The crimes of adultery and concubinage shall not be prosecuted except upon complaint filed by the offended spouse. However the signing of the complaint by the offended spouse is no longer jurisdictional (People vs. Tanada,166 SCRA 360; People vs. Bugtong, 169 SCRA 797)

3. Rape is no longer a private crime (R.A. 8353)

4. The principle of parens patriae found in the third paragraph of Section 5, Rule 110, applies only to seduction, abduction, and acts of lasciviousness, and not to adultery and concubinage (Pilapil vs. Somera, 174 SCRA 651 (1989)

5. The offenses of seduction, abduction, and acts of lasciviousness, filed under special laws, such as the Child Abuse Act, shall be governed by the provisions of the special law under which the accused is prosecuted.

C. Sections 8 and 9 of Rule 110 now require that not only the qualifying but also all other aggravating circumstances must be alleged in the information, otherwise if not alleged, even if proved, they cannot be taken into account in the imposition of the penalty. (People vs. Nunez, 310 SCRA 168 (1999); People vs. Gallo, 315 SCRA 461 (1999); People vs. Mauricio, G.R. No. 133695,Feb. 8,2001; People vs. Comadre, 431 SCRA 366 [2004])

D. Under Section 14, Rule 110 of the former Rules on Criminal Procedure, before plea, the prosecution may amend the information with respect to form and substance WITHOUT LEAVE OF COURT. Under the 2000 Rules however, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court, in resolving such motion, shall state its reasons in granting or denying the same, furnishing all parties, especially the offended party, with copies of its order. This amendment came about because of the case of Dimatulac vs. Judge Villon, 297 SCRA 67

E. Amendment of information after plea requires LEAVE OF COURT but the same is limited as to formal amendments only, provided it does not prejudice the rights of the accused. The test as to when the rights of an accused are prejudiced by the amendment of an information is when a defense under the original information would no longer be available after the amendment is made, and when any evidence the accused would be inapplicable to the amended information (Gabionza vs.Court of Appeals, G.R. No. 140311, March 30,2001; Poblete vs. Sandoval, 426 SCRA 346 [2004])

F. In criminal cases, venue is synonymous with jurisdiction, hence it cannot be waived. (People vs. Amadora, G.R. No.140669-75, April 20, 2001; U.S. vs. Reyes, 1 Phil. 243; People vs. Enriquez, CA-G.R. No. 12778, March 1, 1976. In Yoingco, et al., vs. Gonzaga, Adm. Matter No. MTJ-03-1489, March 31, 2004, the Supreme Court called to task a municipal trial judge for ruling that venue can be waived in criminal cases. The Supreme Court said that respondent judges irresponsible convolution of the concept of venue in a civil case and in a criminal case exhibits ignorance of the law.

III. PROSECUTION OF CIVIL ACTION (RULE 111)

A. What is presently deemed instituted with the criminal case is only the recovery of civil indemnity arising from the offense charged. When a criminal action is instituted against a juvenile in conflict with the law, the action for the recovery of civil liability arising from offense charged shall be governed by Rule 111 of the Revised Rules of Criminal Procedure (Sec. 12, Rule on Juveniles in Conflict With The Law)

B. Under the 2000 Rules of Criminal Procedure, the offended party who desires to recover damages under Articles 32, 33, 34, and 2176 of the Civil Code must have to file a separate civil action for that purpose. The failure to make a reservation in the criminal action does not anymore constitute a waiver to file such separate and independent civil actions. (Casupanan, et al.,vs. Laroya, G.R. No. 145391, August 26, 2002; Philippine Rabbit Bus Lines, Inc., vs. People, 427 SCRA 456 [2004])

C. Recovery of civil indemnity against an employer is limited solely to subsidiary liability.

D. The death of the accused during the pendency of his appeal extinguishes not only his criminal liability but his civil liability arising from delict as well (People vs. Bayotas,236 SCRA 239 (1994)

E. The concept of a prejudicial question has likewise been changed in that the elements of a prejudicial question are (a) the civil action must have been instituted earlier than the criminal action; (b) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.

IV. PRELIMINARY INVESTIGATION (Rule 112)

A. At present, even offenses falling under the jurisdiction of the Municipal Trial Courts require a preliminary investigation if the penalty is at least four (4) years, two (2) months and one (1) day, without regard to the fine. The right of an accused to a preliminary investigation is a personal right and can be waived expressly or by implication (People vs. Lazo, 198 SCRA 274). If not waived, the absence of a preliminary investigation may amount to a denial of due process. However, lack of a preliminary investigation, does not impair the validity of an information or render it defective (Villaflor vs. Gozon, G.R. No. 134744,Jan. 16,2001; Yusop vs. Sandiganbayan, G.R. No. 138859-60,Feb. 22,2001) Where the right to a preliminary investigation is timely invoked, a court should hold in abeyance or suspend the proceedings and remand the case to the office of the prosecutor for him to conduct a preliminary investigation (Kilusang Bayan vs. Dominguez, 205 SCRA 92).Such right to a preliminary investigation must however be raised before plea, otherwise the accused is deemed to have waived the same (Rule 114, Sec. 26; Torralba vs. Sandiganbayan, 230 SCRA 33)

B. Preliminary investigations can be conducted ex parte if respondent cannot be subpoenaed or does not appear after due notice. The Revised Rules on Crimoinal Procedure does not require as a condition sine qua non for the validity of the proceedings the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him. The obvious purpose of this rule is to block attempts of unscrupulous respondents to thwart their prosecution by hiding themselves or by employing dilatory tactics. (Mercado vs. Court of Appeals, G.R. No. 109036, July 5, 1995; An actual hearing is not always an indispensable aspect of due process as long as a party was given the opportunity to defend his interest in the cause. (Lumifuel vs. Exchevea, 282 SCRA 125)

C. An investigating prosecutor does not necessarily have to give notice to the respondent upon the filing of a complaint with him and which requires a preliminary investigation. Should he find the complaint utterly devoid of merit, then he may recommend its outright dismissal. It is within his discretion whether or not a preliminary investigation should be conducted. (Knetch vs. Desierto, G.R. No. 121916, June 28. 1998)

D. As far as consistent with the 2002 Rule on Juveniles In Conflict With the Law, the preliminary investigation of a juvenile shall be governed by Section 3 of Rule 112 of the Revised Rules of Criminal Procedure. If clarificatory questions become necessary, the Rule on Examination of a Child Witness shall apply. If a preliminary investigation is required before the filing of a complaint or information, the same shall be conducted by the judge of the Municipal Trial Court or the public prosecutor in accordance with the pertinent provisions of Rule 112 of the Revised Rules of Criminal Procedure. If the investigating prosecutor finds probable cause to hold the juvenile for trial, he shall prepare the corresponding resolution and information for approval b y the provincial or city prosecutor, as the case may be. The juvenile, his parents/nearest relative/guardian and his counsel shall be furnished forthwith a copy of the approved resolution. (Sec. 13,Rule on Juveniles In Conflict With the Law)

E. The records of the preliminary investigation do not form part of the records in the trial court Hence, the prosecution is not mandated to offer in evidence said record of preliminary investigation since it is separate from the records of the case and may or may not be considered by the court. It is not a part of the judicial proceedings for the determination of the guilt of the accused. The two are independent of each other. Once the information against the accused is filed in court, the investigating officer loses control over the case and the adjudication thereof is shifted to the trial judge. (People vs. Jakosalem, G.R. No. 130506, Feb. 28, 2002)

F. While under Section 3 of Rule 112, the complainant is required to submit, not only his affidavit and those of his witnesses, but also the necessary supporting documents to establish probable cause, if the evidence is voluminous, the complainant shall simply be required to specify those which he intends to present against the respondent, which should be made available for examination or copying by the respondent, but at the expense of the latter.

G. . The filing by the respondent of a motion to dismiss, in lieu of a counter-affidavit, is now prohibited.

H. In the present Rules, in offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction, the prosecutors must forward to the Ombudsman for approval the formers resolution within five days. (See Uy vs. Sandiganbayan,G.R.No. 105965-70, Resolution on Motion for Reconsideration dated March 20,2001)

I. Under the present Rules, when an information is filed by the prosecutor in court, the judge to whom the case is raffled, may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. It is only in case of doubt on the existence of probable cause may the judge order the prosecutor to present additional evidence within five (5) days from notice. The judge must thereafter resolve the issue within thirty (30) days from the filing of the complaint or information.

J. Under the present Rules, the issuance of a warrant of arrest by the Regional Trial Judge upon the filing of an information is no longer necessary if (1) the information was filed under Section 7, Rule ll2 or (2) the Municipal Trial Court which conducted the preliminary investigation had already earlier issued a warrant, or (3) the offense is penalized by a fine only

K. In preliminary investigations conducted by a municipal trial judge, he shall follow the procedure provided in Section 3, Rule 112 If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. HOWEVER, WITHOUT WAITING FOR THE CONCLUSION OF THE INVESTIGATION, the judge may issue a warrant of arrest IF HE FINDS AFTER EXAMINATION IN WRITING AND UNDER OATH of the complainant and his witnesses IN THE FORM OF SEARCHING QUESTIONS AND ANSWERS, (1) that a probable cause exists and that (2) there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

L. In cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure, if filed with the Office of the Prosecutor, the prosecutor to whom the case is assigned shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. IF FILED WITH THE MUNICIPAL TRIAL COURT, if within ten (10) days after the filing of the complaint or information, the judge finds no probable cause (a) after personally evaluating the evidence, or (b) after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the case. He may however require the submission of additional evidence, within ten days from notice, to determine the existence of probable cause. If, notwithstanding the additional evidence, he still finds no probable cause, he shall dismiss the case. If he finds probable cause, he shall either issue a warrant of arrest or a commitment order. However, if he believes that there is no need for placing the accused under custody, he may issue a summons instead.

M. The determination of probable cause during the preliminary investigation or reinvestigation is an executive function exclusively of the prosecutor ( Dupasquier vs. Court of Appeals, G.R. No. 112089, January 24, 2001). To warrant the filing of an information in court after preliminary investigation, a finding of probable cause by the investigating prosecutor needs only to rest on evidence showing more likely than not that a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establish guilt beyond reasonable doubt, and definitely, not on evidence establishing absolute certainty of guilt. x x x a finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. (Webb vs. Judge De Leon, et al., G.R. No. 121234-45, 121297, August 23, 1995; Paul Roberts vs.Court of Appeals, G.R. No. 113930, March 5, 1996) But while the prosecutor has full discretion to determine whether or not a criminal case should be filed in court, once filed in court, it is the latter, and no longer the prosecutor, that has full control whether the case should be dismissed or consolidated with other cases (Domondon vs. Sandiganbayan, 328 SCRA 292 )

N. While the Ombudsman has the discretion to determine whether an information should be withdrawn and a criminal case should be dismissed, and to move for the withdrawal of such information or dismissal of a criminal case, the final disposition of such motion and of the case is addressed to the sound discretion of the SANDIGANBAYAN subject only to the caveat that the action of the Sandiganbayan must not impair the substantial rights of the accused and the People to due process of law. In this case, the Supreme Court held that the Sandiganbayan acted in the exercise of its sound judicial discretion in granting the motion of the accused and ordering the dismissal of the criminal case. (People vs. Velez, G.R. No. 138093, February 19, 2003)

O. Courts should adopt a policy of non-interference in the exercise of the Ombudsmans constitutionally mandated powers. Courts would be extremely swamped with cases if they were compelled to review the exercise of discretion on the part of the public prosecutors each time the latter either file or dismiss a complaint by a private complainant. (Nava vs. Commission on Audit, G.R. No. 136470, Oct. 16, 2001) There are, however, exceptions to this general rule, to wit: (1) When necessary to afford adequate protection to the constitutional rights of the accused; (2) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (3) When there is a prejudicial question which is sub judice; (4) When the acts of the officer are without or in excess of authority; (5) Where the prosecution is under an invalid law, ordinance, or regulation; (6) When double jeopardy is clearly apparent; (7) Where the court has no jurisdiction over the offense; (8) Where it is a case of persecution rather than prosecution; (9) Where the charges are manifestly false and motivated by the lust for vengeance; (10) When there is clearly no prima facie case against the accused and a motion to quash on that ground has been denied. (Filadams Pharma, Inc., vs. Court of Appeals, G.R. No. 132422, March 30, 2004; Mendoza-Arce vs. Office of the Ombudsman (Visayas), et al., G.R. No. 149148, April 5, 2002; Roxas, et al., vs. Vasquez, G.R. No. 114944, May 29, 2002) The principle of non-interference does not likewise apply when there is grave abuse of discretion, as when the Ombudsman does not take essential facts into consideration in the determination of probable cause. Such grave abuse of discretion authorizes the aggrieved party to file a petition for certiorari and prohibition under Rule 65 of the 1997 Rules of Civil Procedure. (Sistoza vs. Desierto, G.R. No. 144784, September 3, 2002).

P. But once a complaint or information is filed in court, any disposition of the case, be it dismissal of the case, or conviction or acquittal of the accused, rests on the sound discretion of the court. For although the prosecution retains the direction and control of criminal cases even while the case is already in court, he cannot impose his opinion on the trial court which is the final arbiter on whether or not to proceed with the case. (Sps. Webb et al., vs.Secretary of Justice, et al., G.R.No. 139120, July 31, 2003)

Q. In conducting a preliminary investigation, a municipal trial judge has no legal authority to determine the character of the crime and, regardless of his belief as to the nature of the offense committed, his only duty after conducting the preliminary investigation is to transmit to the provincial prosecutor his resolution together with the entire records of the case (Jamora vs.Bersales, 447 SCRA 20 [2004])

R. The Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the prosecutor, when the complaint or information has already been filed in court.(Balindong vs. Court of Appeals, 447 SCRA 200 [2004] reiterating the rule in Crespo vs. Mogul, 151 SCRA 462 [1987])

S. Once a case is filed in court, its subsequent dismissal must be based on the judges personal conviction that there was no case against the accused. Technicalities will have to yield to the paramount interest of the nation to enforce its laws against tax evasion. Procedural rules should not be rigidly when to do so would result in manifest failure or miscarriage of justice. (People vs. Lucio Tan & Court of Appeals, July 13, 2004)

T. When the Ombudsman dismisses a case against a co-accused, the latter has a right to consider the complaint against him as closed and for all intents and purposes, he is no longer a party in the criminal action. Should a re-investigation be conducted later on and the Ombudsman finds a probable cause against the co-accused whose case was earlier dismissed, the Ombudsman should first notify said co-accused and afford him the opportunity to be heard before ordering his inclusion in the criminal case. The subsequent findings of probable cause against said co-accused which he had neither knowledge of nor participation in, violated his right to procedural due process. At the very least, co-accused should have been notified that the complaint again him has not yet been finally disposed of, or that the fight was not yet over, so to speak. He should have been apprised of his possible implication again in the criminal case to enable him to meet any new accusation against him head-on, and to prepare for his defense. (Roxas vs. Vasquez, et al., G.R. No. 114944, May 29, 2002).

U. The records of the preliminary investigation do not form part of the records in the trial court. Hence, the prosecution is not mandated to offer in evidence the said record of preliminary investigation since it is separate from the records of the case and may or may not be considered by the court. A preliminary investigation is not a trial or any part thereof and has no purpose except that of determining whether or not the defendant should be released or held for trial before a competent court. (People vs.Jakosalem, G.R.No. 130506, February 28, 2002)

V. The rule on disqualification under Section 1, Rule 137 of the Rules of Court applies even to preliminary investigation and not only where a judge is called upon to decide a case. (Sales vs.Calvan, A.M. No. MTJ-00-1331, February 27, 2002)

V.ARREST (Rule ll3)

A. Unlike a search warrant which has a lifespan of ten days only from its issuance, a warrant of arrest, unless specifically provided in the warrant, remains enforceable until it is executed, recalled or quashed. The ten-day period provided in Section 4, Rule ll3, is only a directive to the officer executing the warrant to make a return to the court. (People vs. Givera, G.R. No.132159, January 18,2001)

B. It is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge before issuing a warrant of arrest. What is required is that the judge must have sufficient supporting documents upon which to make his independent judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause (Okabe vs. Gutierrez, 429 SCRA 685 [2004])

C. Any objection to the legality of the warrant of arrest must be made before plea (Ibid.)

D. Section 5, paragraph (b)of Rule 113 of the 1985 Rules of Criminal Procedure, reads:

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;

This section was amended in 2000 to read as follows

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;

Personal knowledge of facts in arrests without warrant under Section 5(b) above quoted must be based on reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the person making the arrest. If there is no showing that the person who effected the warrantless arrest had, in his own right, knowledge of facts implicating the person arrested to the perpetration of the criminal offense, the arrest is legally objectionable (People vs. Doria, 301 SCRA 668 [1999]).

In People vs. Chua Ho San, G.R. No.128222, June 17, 1999, it was explained that probable cause has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant cautious mans belief that the person is guilty of the offense charged. Specifically, with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

In People vs. Escordial, G.R. No. 138934-35, January 16, 2002, the Supreme Court had occasion to interpret paragraph (b ), Section 5, Rjule 113 of the 2000 Rules of Criminal Procedure. In said case, the accused, at the time of his arrest, was watching a game in a basketball court. He was not committing or attempting to commit a crime when he was arrested by the police. Nor was he an escaped prisoner whose arrest could be effected even without a warrant.

The question is whether this case falls under paragraph (b) because the police officers had personal knowledge of facts that would lead them to believe that the accused had just committed a crime. The phrase personal knowledge in paragraph (b) has been defined in this wise: Personal knowledge of facts in arrests without warrant under Section 5(b) of Rule 113 must be based upon probable cause which means an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable guilt of the person to be arrested. A reasonable suspicion therefore , must be founded on probable cause, coupled with good faith on the part of the person making the arrest. In this case, the crime took place on December 27, 1996, but Escordial was arrested only on January 3, 1997, a week after the occurrence of the crime. As the arresting officers were not present when the crime was committed, they could not have personal knowledge of the facts and circumstances of the commission of the crime so as to be justified in the belief that Escordial was guilty of the crime. The arresting officers had no reason for not securing a warrant. However, the records show that the accused pleaded not guilty to the crime charged against him during his arraignment on February 27, 1997, without questioning his warrantless arrest. He thus waived objection to the legality of his arrest.

In People vs. Tudtud, G.R.No. 144037, September 23, 2003, probable cause was defined as:

an actual belief or reasonable grounds of suspicion. The grounds of suspicion are reasonable when, in the absence of actual belief of the arrest officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith of the peace officers making the arrest.

n the same case, it was emphasized that the long standing rule in this jurisdiction, applied with a great degree of consistenchy, is that reliable information alone is not sufficient to justify a warrantless arrest Section 5(a), Rule 113 of the Rules of Criminal Procedure. The rule requires, in addition, that the accused performs some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.

The Supreme Court said further:

We cannot liberally construe the rule on arrests without warrant or extend its application beyond the cases specifically provided by law. To do so would infringe upon personal liberty and set back a basic right so often violated and so deserving of full protection.

xxx xxx xxx

Thus, notwithstanding tips from confidential informants and regardless of the fact that the search yielded contraband, the mere fact of looking from side to side while holding ones abdomen, or of standing on a corner with ones eyes moving very fact, looking at every person who came near, does not justify a warrantless arrest under Section 5(a). Neither does putting something in ones pocket, handling a bag on board a trisikad sanction State intrusion. The same rule applies to cross the street per se.

Under the Rules, peace officers may, without a warrant, arrest a person under any of the circumstances enumerated in Section 5, Rule 113 of the 2000 Rules of Criminal Procedure. If a killing was committed on September 2,1996, not in the presence of the arresting officers, and the arrest was effected only on September 11, 2002, the arrest could not be considered to cover an offense that had just been committed. In such an arrest, the presumption of the regularity in the performance of official functions could not be considered. (People vs. Samus, G.R. No. 135957-58, September 1, 2002) An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Sec. 5(a) of the Rules of Court. Any search resulting form a lawful warrantless arrest is valid because the accused committed a crime in flagranti delicto.(Teodosio vs. Court of Appeals, 431 SCRA 194 [2004])

Even if the arrest of a person is illegal, supervening events may bar his release or discharge from detention or custody. What is to be inquired into is the legality of the detention as of, at the earliest, at the time of the application for habeas corpus, for even if the detention is at its inception, illegal, it may, by reason of supervening events, be no longer illegal at the time of the filing of the petition. (Epimaco Velasco vs.Court of Appeals, et al., G.R. No. 118644, July 7, 1995)

A warrantless arrest, even if illegal, does not render void all other proceedings, including those leading to the conviction of the accused, nor can the State be deprived of its right to convict the guilty when all the facts on record point to his culpability (People vs.Conde, G.R. No. 113269, April 10, 2001; People vs. De La Cruz, G.R. No. 141162-63, July 11, 2002)

Any objection involving an arrest, of the procedure in the acquisition by the court of jurisdiction over the person of the accused, must be made before he enters a plea, otherwise, the objection is deemed waived. The accuseds plea of not guilty when arraigned and in participating at the trial without timely questioning the legality of his arrest forecloses further ventilation of the issue on appeal. (People vs. Rivera, G.R. No. 87187, June 29,1995; People vs. Lopez, G.R. No. 104662, June 16, 1995; People vs. Pacistol, G.R. No. 11974-75, January 22, 1998; People vs. Wisehunt, G.R. No. 123819, Nov. 14, 2001; People vs. De La Cruz, et al., G.R. No. 141162-63, July 11, 2002). . .

R.A. 7438- An Act Defining Certain Rights of Person Arrested, Detained or Under Custodial Investigation As Well As The Duties Of The Arresting, Detaining, And Investigating Officers And Providing Penalties For Violations Thereof.

NOTE; Sec. 4 of said law provides for penalties on any arresting public officer, investigator, or employee: (a) who fails to inform any person ARRESTED, DETAINED or UNDER CUSTODIAL INVESTIGATION of his right to remain silent and to have competent and independent counsel preferably of his own choice; (b) who fails to provide a competent and independent counsel to a person ARRESTED, DETAINED, or UNDER CUSTODIAL INVESTIGATION FOR THE COMMISS ION OF AN OFFENSE if the latter cannot afford the services of his own counsel; (c) who obstructs, prevents, or prohibits any lawyer, any member of the immediate family of the person ARRESTED,DETAINED, or UNDER CUSTODIAL INVESTIGATION, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him, or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night.

VI. BAIL (Rule 114)

A. If the Regional Trial Court convicts an accused of an offense not punishable by death, reclusion perpetua, or life imprisonment, said court may act on an application for bail by the convicted accused despite the filing of a notice of appeal, provided that the records of the case had not yet been transmitted to the appellate court. However, if an accused was originally charged with a non-bailable offense, but was subsequently convicted of a bailable offense, the application for bail can only be filed with and resolved by the appellate court. Should the trial court grant the bail, the accused may be provisionally released during the pendency of his appeal under the same bail which he had put up during the trial subject to the consent of the bondsman.(Sec. 5, Rule 114)

B. (1) Insofar as juveniles are concerned, those charged with offenses falling under the Revised Rule on Summary Procedure shall be released on recognizance to the custody of their parents or other suitable person who shall be responsible for the juveniles appearance in court whenever required; (2) All juveniles shall be admitted to bail as a matter of right before final conviction of an offense not punishable by death, reclusion perpetua or life imprisonment; (3) In the event the juvenile cannot post bail for lack of financial resources, the Family Court shall commit the juvenile to the care of the DSWD, a youth detention center, or a local rehabilitation c enter recognized by the government in the province, city or municipality within the jurisdiction of the said court. The center or agency concerned shall be responsible for the juveniles appearance in court whenever required. In the absence of any such center or agency within a reasonable distance from the venue of the trial, the juvenile shall be detained in the provincial, city, or municipal jail which shall provide adequate quarters for the juvenile separate from adult detainees and detainees of the opposite sex. (Secs. 15 & 16, Rule on Juveniles)

C. The following are the duties of judges in case an application for bail is filed: (1) In all cases, whether bail is a matter of right or discretion, notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation; (2) Where bail is a matter of discretion, conduct a hearing on the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion; (3) Decide whether the guilt of the accused is strong based on the summary of evidence of the prosecution; and (4) If the guilt of the accused is not strong, discharge the accused upon approval of the bail bond. Otherwise the bail should be denied. (Te vs. Perez, A.M. MTJ-00-1286, January 21, 2002)

D. Bail in capital offenses cannot be granted without a petition for bail and without a hearing (Directo vs. Bautista, MTJ-99-1205, Nov. 29,2000; Jamora vs. Bersales, 447 SCRA 20 [2004]); The burden of proof during such hearing is on the prosecution (Sec. 8, Rule 114) The hearing contemplated is the presentation of proof that the evidence of guilt is strong. (Narciso vs. Sta. Romana Cruz, G.R. No.13450, March 12, 2000;Bantuas vs.Pangandapuan,RTJ-98-1707,July 20,1998)

E. In applications for bail involving capital offenses or those punishable by reclusion perpetua or life imprisonment, a judge should not grant bail simply on the failure of the prosecution to prove that the evidence of guilt of the accused was strong. A judge should endeavor to determine the existence of such evidence. Under the present rules, a hearing is required in granting bail whether it is a matter of right or discretion. A motion to reduce the amount of bail likewise requires a hearing before it is granted in order to afford the prosecution the chance to oppose it. In this jurisdiction, whether bail is a matter of right or discretion, reasonable notice of hearing is required to be given to the prosecutor or fiscal, or at least he must be asked for his recommendation. If the prosecution refuses to adduce evidence or fails to interpose and objection, it is still mandatory for the court to conduct a hearing or ask searching and clarificatory questions. In fact, even in cases where there is no petition for bail, a hearing should still be held. (Te vs. Perez, supra)

F. The determination of whether or not the evidence of guilt is strong is a matter of judicial discretion that remains with the judge (Jamora vs. Bersales, 447 SCRA 20 [2004]); However, the standard of strong evidence of guilt, which is sufficient to deny bail to an accused in a criminal case, is markedly higher than the standard of probable cause to initiate criminal cases against the accused (Cabrera vs. Marcelo, 446 SCRA 207 [2004])

G. A bail application in capital offenses does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements. Accordingly, the prosecution must be given ample opportunity to show that the evidence of guilt is strong, because, by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial is exercised in determining whether the evidence of guilt of the accused is strong. The determination of whether the evidence of guilt is strong is a matter of judicial discretion. Though not absolute nor beyond control, the discretion of the trial court must be sound and exercised within reasonable bounds. (People vs. Antona, et al., G.R. No. 137681, January 31, 2002)

H. Even if an accused is charged with a capital offense, he is entitled to bail, but no longer as a matter or right. Instead, it is discretionary and calls for a judicial determination that the evidence of guilt is not strong in order to grant bail. (Andres vs. Judge Beltran, AM No. 00-9597, August 20, 2001)

I. In cases where bail is authorized, it may be granted before arraignment, otherwise the accused may be precluded from filing a motion to quash. (Lavides vs.Court of Appeals, 324 SCRA 321 [2000])

J. The accused applying for baiI should be in custody of the law or otherwise deprived of his liberty (Feliciano vs. Pasicolan; Santos-Reyes vs. Montesa, 247 SCRA 85(1995); Guillen vs. Nicolas, 299 SCRA 623(1998); A person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of arrest issued pursuant to Section 6, Rule 112, or even without a warrant under Section 5, Rule 113 in relation to Section 7, Rule 112 of the Revised Rules of Court, or (b) when he has voluntarily submitted himself to the jurisdiction of the court by surrendering to the proper authorities. (People vs. Judge Gako, 348 SCRA 334 [2000]) (See Paderanga vs. Court of Appeals, G.R. 115407,Aug. 28,1995 on principle of Constructive Custody)

K. The grant or denial of bail in capital offense hinges on the issue of whether or not the evidence of guilt is strong. This requires that the trial court conduct bail hearings wherein both the prosecution and the defense are afforded sufficient opportunity to present their respective evidence. The burden of proof lies with the prosecution to show strong evidence of guilt. (Jose Jinggoy Estrada vs.Sandiganbayan, et al., G.R. No. 148965, February 26, 2002)

L. It is error for a judge to depend solely, in granting bail in a capital offense, on a medical report made nine (9) months earlier the defense should present a more recent one that would convincingly raise strong grounds to apprehend that the imprisonment of the accused would endanger his life. (People vs. Judge Gako, supra) .

M. A hearing is required even if the prosecution has no objection to the grant of bail in capital offenses. (Manalo vs. Narisma,MTJ-96-1072,Jan. 31,1996)

N. The court hearing the application for bail must make in his order denying or granting bail a summary of the evidence adduced during the hearing (Carpio vs. Maglalang,196 SCRA 41;Basco vs. Rapatalo, 269 SCRA 220 (1997); People vs. Presiding Judge, RTC, of Muntinglupa City, 431 SCRA 319 [2004]; Jamora vs. Judge Bersales, 447 SCRA 20 [2004]; Zuo vs.Cabebe, 444 SCRA 382 [2004]

O. A municipal trial court conducting a preliminary investigation of a criminal case involving a capital offense may entertain and act upon a petition for bail filed by the accused (Borinaga vs. Tamin,226 SCRA 206)

P. A municipal trial judge conducting a preliminary investigation has the authority to grant bail and to order the release of the accused even if the records of the case had been transmitted for review to the Office of the Provincial Prosecutor. Such action cannot be validly attacked on jurisdictional grounds. (Cabatingan, Sr., vs. Arcueno, A.M. No. MTJ-00-1323, August 22, 2002)

Q. The putting up of bail by an accused shall not bar him from later on questioning the legality of his arrest or the absence of a preliminary investigation provided he raises such issues before entering his plea (Sec. 26, Rule 114;usop vs. Sandiganbayan ,G.R. No. 138859-60,February 22,2001;People vs. Gomez,325 SCRA 61(Feb.8,2000)

R. An accused who appealed after conviction by the trial court, who is found to have filed fake bail bonds, is deemed to have escape from confinement during the pendency of his appeal, and in the normal course of things, his appeal should be dismissed. By filing fake bail bonds, an accused mocked and trumped the judicial process, and he must be considered to have waived or forfeited his right to further review of the decisions of the trial court and the Court of Appeals. (People vs. Del Rosario, 348 SCRA 603 [Dec. 19,2000])

S. While it may be true that the accused in this case have the right to apply for bail since the charge of violation of the Election Code is a bailable offense, however, before a judge may grant applications for bail, whether bail is a matter of right or discretion, the prosecutor must be given reasonable notice of hearing or he must be asked to submit his recommendation even if the accused had not yet been charged in court. The purpose for bail is to guarantee the appearance of the accused at the trial, or whenever so required by the court. Thus, the amount should be high enough to assure the presence of the accused when required but not higher than is reasonably necessary to fulfill this purpose. A bail application does not only involve the right of the accused to temporary liberty. But likewise the right of the State to protect the people and the peace of the community from dangerous elements. (Caneda vs. Alaan, et al., A.M. No. MTJ-01-1376, January 23, 2002)

T. Even in applications for bail on recognizance, a hearing is required, and notice is to be given to the prosecutor whose recommendation must be asked. Before a youthful offender is released to the custody of his parents, the recommendation of the DSWD or other agency or agencies authorized by the Court must likewise be obtained and the procedure laid down in Section 191 of P.D. 603 must be observed. The judge must not merely rely on the birth certificates of the accused in granting an application for bail on recognizance. (Cabrera vs. Zerna, A.M. No. RTJ-02-1715, September 3, 2002)

U. In fixing the amount of bail, judges shall primarily consider the factors enumerated in Section 9, Rule 114 of the Rules on Criminal Procedure. The amount of bail should be reasonable at all times. Excessive bail shall not be required. In implementing the mandate, regard should be taken of the prisoners pecuniary circumstances. That which is reasonable to a man of wealth may be unreasonable to a poor man charged with a like offense. Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. The amount should be high enough to assure the presence of the accused when required but no higher than is reasonably calculated to fulfill this purpose. (Magsucang vs, Balgos, A.M. MTJ-02-1427, Feb. 27, 2003)

V. Under the first paragraph of Section 22, Rule 114, upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. This does not apply to cash bonds which, under Section 14 of the same Rule, shall be applied to the payment and costs, and the excess, of any, shall be returned to the accused or to any person who made the deposit. (Esteban vs. Alhambra, G.R. No. 135012, September 7, 2004)

VII. RIGHTS OF THE ACCUSED (Rule 115)

A. The right to speedy trial is a relative one, subject to reasonable delays and postponements arising from illness, medical attention, and body operations, as in the present case where it was duly proven that complainant had to undergo a carotid operation. Speedy trial means one that can be had soon after the indictment is filed as the prosecution can, with reasonable diligence, prepare for that. The accused sometimes forget that those who are aggrieved also have rights. For this reason, in determining the right of the accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of scheduled hearings of the case. What offends the right to speedy trial are unjustified postponements which prolong trial for an unreasonable length of time. While a judge may have a laudable purpose in insuring the prompt disposition of cases, i.e., one that is free from vexatious, capricious, and oppressive delays, he must not lose sight of the fact that his primordial concern must be justice and fairness.(De Zuzuarregui, Jr. vs. Rosete, AM No. MTJ-o2-1426, May 9, 2002)

B. The concept of a speedy trial is necessarily relative. While the Speedy Trial Act pf 1998 provides for a trial period for criminal cases in general shall be 180 days, in determining the right of an accused to speedy trial, courts should do more than a mathematical computation of the number of postponements of the scheduled hearings of the case. The right to a speedy trial is deemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; or (2) when unjustified postponements are asked for and secured; or (3) when without cause or justifiable motives a long period of time is allowed to elapse without the party having his case tried. (People vs. Tee, G.R. No. 14546-47, January 20, 2003)

C. The right to counsel and the right to remain silent do not cease even after a criminal complaint or information had been filed against the accused, as long as he is still in custody. To claim otherwise would give police authorities and other law enforcement agencies a heyday in extracting confessions or admissions from the accused before they are arraigned on the submission that, at such stage, the accused are not supposedly entitled to the enjoyment of the right to remain silent and to counsel (Pdeople vs. Maqueda alias Putol, G.R. No. 112983, March 22, 1995). Likewise, in custodial interrogation, the law does not distinguish between preliminary questions during custodial investigation, since any question asked of a person while under detention is considered as a question asked while he is under detention. (People vs. Isla, G.R. No. 96176, August 21, 1997)

D. The phrase preferably of his own choice found in the Constitution regarding the right of an accused to counsel, does not convey the message that the choice of a lawyer by the person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. (People vs. Mojello, 425 SCRA 11 [2004])

E. A simple forewarning to the accused that the next time that he would not be ready with his defense, he would be deemed to have waived his right to present it does not satisfy the accuseds constitutional right to due process the trial court should first apprise the accused or explain to him in clear terms the exact nature and consequences of a waiver. (People vs. Macarang, 424 SCRA 18 [2004])

F. A barangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Article III of the Constitution a suspects uncounseled statement before the barangay chairman is admissible. (Peoplevs. Ulit, 423 SCRA 374 [2004])

VIII.. ARRAIGNMENT AND PLEA (Rule 116)

A. When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him (Sec. 1(d) (New)

B. When the accused is under preventive detention, his case shall be raffled within three days from the filing of the complaint or information. He shall be arraigned within ten days from the date of the raffle, and the pre-trial of his case shall be held within ten days from arraignment.

C. The presence of the offended party is now required during the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. If he does not appear despite due notice, the court may allow the accused to plead guilty to a lesser offense necessarily included in the offense charged with the conformity of the trial fiscal alone.

D. Added as a further ground for the suspension of the arraignment is the pendency of a petition for review either with the Department of Justice or the Office of the President, but such suspension shall not exceed 60 days from the date of the filing of such petition for review.

E. Arraignment in absentia is null and void. (Nolasco vs. Ponce Enrile, 139 SCRA 502 [1985]) A rejected plea of guilty to a lesser offense may be appreciated if after trial, the court finds the accused guilty of the lesser offense to which he offered to plead guilty (People vs. Santos, 104 Phil. 551)

F. If the accused pleads guilty to a capital offense, the judge is required to accomplish three things: (1) to conduct a searching inquiry into the voluntariness and full comprehension of the consequences of the accuseds plea; (2) to require the prosecution to prove the guilt of the accused and the precise degree of his culpability; and (3) to inquire whether or not the accused wishes to present evidence on his behalf and to allow him to do so if he desires. (People vs. Olarte, G.R. Nos. 129530-31, September 27, 2001)

G. In a plea of guilty to a capital offense, a mere warning to the accused that he faces the supreme penalty of death is not enough (People vs. Nadera, 324 SCRA 490 [2000]). Although there is no definite and concrete rule as to how a trial judge may go about the matter of a proper searching inquiry, it would be well for a trial judge, for instance, to require the accused to fully narrate the incident that spawned the charges against him, by making him reenact the manner in which he perpetrated the crime, or by causing him to furnish and explain to the court missing details of significance in order to determine, once and for all, his liability for the crime. (People vs.Samontanez, 346 SCRA 837 [Dec. 4, 2000])

H. Under established principles, a searching inquiry must not only comply with the requirements of Sec. 1, par. (a) of Rule 116 but must also expound on the events that actually took place during the arraignment, the words spoken and the warnings given, with special attention to the age of the accused, his educational attainment and socio-economic status as well as the manner of his arrest and detention, the provision of counsel in his behalf during the custodial and preliminary investigations, and the opportunity of his defense counsel to confer with him. These matters are relevant since they serve as trustworthy indices of his capacity to give a free and informed plea of guilt Lastly, the trial court must explain the essential elements of the crime he was charged with and its penalty and civil liabilities, and also direct a series of questions to defense counsel to determine whether he has conferred with the accused and has completely explained to him to meaning of a plea of guilty. This formula is mandatory and absent any showing that it was followed, a searching inquiry cannot be said to have been undertaken. (People vs. Molina, G.R. No. 14129-33, December 14, 2001) .

I. In a more recent case, People vs. Besonia, G.R. No. 151284, February 5, 2004, reiterating the rule in People vs. Galvez, G.R. No. 135053, March 6, 2002, it was held that the searching inquiry to be conducted by the trial court should consist of the following: (1) Ascertain from the accused himself (a) how he was brought into the custody of the law; (b ) whether he had the assistance of a competent counsel during the custodial and preliminary investigations; and (c) under what conditions he was detained and interrogated during the investigations. These the court shall do in order to rule out the possibility that the accused has been coerced or placed under a state of duress either b y actual threats of physical harm coming from malevolent or avenging quarters. (2) Ask the defense counsel a series of questions as to whether he had conferred with, and completely explained to, the accused the meaning and consequences of a plea of guilty. (3) Elicit information about the personality profile of the accused, such as his age, socio-economic status, and educational background, which may serv de as a trustworthy index of his capacity to give a free and informed plea of guilty. (4) Inform the accused [of] the exact length of imprisonment or nature of the penalty under the law and the certainty that he will serve such sentenced. Not infrequently indeed an accused pleads guilty in the hope of a lenient treatment or upon bad advice or because of promises of the authorities or parties of a lighter penalty should he admit his guilt or express remorse. It is the duty of the judge to see to it that the accused does not labor under these mistaken impressions. (5) Require the accused to fully narrate the incident that spawned the charge against him or make him reenact the manner in which he perpetrated the crime, or cause him to supply missing details of significance. x x x Where the punishment to be inflicted is death, it is not enough that the information be read to the accused or even translated into the dialect they speak. This is because the implementation of such penalty is irrevocable, and experience has shown that innocent persons have at times pleaded guilty. The trial court must avoid improvident pleas of guilt, since the accused might be admitting their guilty and thus forfeiting their lives and liberties without having fully understood the meaning, significance or consequences of their pleas.

J. A conditional plea of guilty, or one entered subject to the condition that a certain penalty be imposed upon him, is equivalent to a plea of not guilty and would therefore require a full-blown trial before judgment could bed rendered. (People vs. Madroga, G.R.No. 129299, Nov. 11, 2000)

K. Insofar as juveniles are concerned, where the maximum penalty for the offense with which they are charged is imprisonment of not more than six (6) months, regardless of fine or fine alone regardless of the amount, and the corresponding complaint is filed with the Family Court, the case shall not be set for arraignment; instead, it shall forthwith be referred to the Diversion Committee which shall determine whether the juvenile can be diverted and referred to alternative measures or services offered by non-court institutions. Pending determination by the Committee, the court shall deliver the juvenile on recognizance to the custody of his parents or legal guardian who shall be responsible for the presence of the juvenile during the diversion proceedings. (Sec. 20, Rule on Juveniles)

L. The provisions of Rule 116 and 117 of the Revised Rules of Criminal Procedure shall apply to the arraignment of the juvenile in conflict with the law. The arraignment shall be scheduled within seven (7) days from the date of the filing of the complaint or information with the Family Court, unless a shorter period is provided for by law. Arraignment shall be held in chambers and conducted by the judge by furnishing the juvenile a copy of the complaint or information, reading the same in a language or dialect known to and understood by him, explaining the nature and consequences of a plea of guilty or not guilty and asking him what his plea is. (Sec. 27, Ibid)

M. While the pendency of a petition for review is a ground for suspension of the arraignment, the aforecited provision limits the deferment of the arraignment to a period of sixty (60) days reckoned from the filing of the petition with the reviewing office. It follows, therefore, that after the expiration of said period , the trial court is bound to arraign the accused or to deny the motion to defer arraignment. (Samson vs. Daway, et al., G.R. Nos. 160054-55, July 21, 2004)

IX. . MOTION TO QUASH (Rule 117)

A. A trial court cannot motu propio quash an information except on the ground of lack of jurisdiction (People vs. Nitafan, 302 SCRA 424 (1999). If a motion to quash is based on the ground that the facts alleged in the information do not constitute an offense, the court shall first give the prosecution an opportunity to correct the defect by amendment. If the prosecution fails to make the amendment, or, despite the amendment, the complaint or information still suffers from the same defect, the court shall dismiss the same.

B. If an accused admits the charge but interposes a lawful defense, a modified order or trial under Section 11(e), Rule 199 may be directed, but this does not mean that in such a case, trial could be dispensed with altogether. A judge must nonetheless ascertain whether the defense put up by the accused could withstand judicial scrutiny. In other words, while the burden of evidence is shifted to the accused to prove by clear and convincing evidence that he is entitled to an extenuating circumstance, the trial court is still duty-bound to hold a regular trial on the merits for this purpose, and should not take shelter under the provisions of Section 6, Rule 135 of the Rules of Court that if the procedure to be followed in the exercise of (its) jurisdiction is not specifically pointed out by (the) Rules, any suitable process or mode of proceeding may be adopted which appears conformable to the spirit of said law or rules. The Rules do not sanction the automatic conversion of a hearing on a motion to quash to a hearing on the merits of a case, in the absence of any clear waiver by the accused of his right to a regular trial. (Dayawon vs. Garfin, A.M. No. MTJ-01-1367, September 5, 2002)

C. The new Rule contains a provision to convert a provisional dismissal into a permanent one (Sec. 8, Rule 117) which states: 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 6 years or a fine of any amount or both shall become permanent one (1) year after the issuance of the order of dismissal 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. In People vs. Lacson, G.R. No. 149453, May 28, 2002, the Supreme Court, interpreting this provision, ruled that Even 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 time 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 the cases beyond the 2-year bar

On motion for reconsideration filed by the State, the Supreme Court, on April 1, 2003, ruled that the two-year time-bar should be counted from December 1, 2000, when the 2000 Rules on Criminal Procedure took effect.

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 of the time-bar therein provided merely to benefit the accused. For to do so would cause an injustice of hardship to the to the State and adversely affect the administration of justice in general and of criminal laws in particular.

On October 7, 2003, acting upon the Motion for Reconsideration filed by Panfilo Lacson, the Supreme Court ruled:

In criminal litigations concerning constitutional issue claims, the Court, in the interest of justice, may make the rule prospective where the exigencies of the situation make the rule prospective. The retroactivity or non-retroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based. Each constitutional rule of criminal procedure has its own distinct functions, its own background or precedent, and its own impact on the administration of justice, and the way in which these factors combi9ne must inevitably vary with the dictate involved.

Matters of procedure are not necessarily retrospective in operation as a statute. To paraphrase the United States Supreme Court per Justice Benjamin Cardozo, the Court in defining the limits of adherence may make a choice for itself between the principle of forward operation and that or relating forward

In the refilling of a case which has been provisionally dismissed, the usual procedure is file a new information, but in the 1979 case of Lauchengco vs. Alejandro, 88 SCRA 175, it was held that the provisional dismissal of a criminal case does not call for the filing of a new information if, as in this case, the parties are clearly made aware, in such order of provisional dismissal, that it is lacking the impress of finality and therefore could be revived and reinstated. However, in Tupaz vs. Apurillo, et al., G.R. Nos. 151380-81, December 10, 2004, the Supreme Court held that with the finality of the order of dismissal, a criminal case is already removed from the docket of the court and the remedy available to the prosecution, is to file a new information. The mere revival of a dismissed case by motion or otherwise is not procedurally feasible considering that the dismissal, although without prejudice, had already attained finality.

D. Save where the Rules expressly permit the investigation of facts alleged in a motion to quash, the general rule is that in the hearing of such motion, only facts as are alleged in the information, and those admitted by the prosecutor , should be taken into account in the resolution thereof. Matters or defense can not be produced during the hearing of such motions, except where the rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy. (Valencia vs. Sandiganbayan, G.R. No. 141336, June 29, 2004)

E. A regional state prosecutor has no power to appoint a special prosecutor armed with the authority to file an information without the prior written authority or approval of the city or provincial prosecutor or chief state prosecutor. (People vs. Garfin, 426 SCRA 393 [2004])

X. PRE-TRIAL (Rules 118)

A. This Rule incorporates the provisions of the Speedy Trial Act and Supreme Court Circular No. 38-98.

B. On Pre-Trial Agreements, read Fule vs. Court of Appeals, 162 SCRA 448 and People vs. Cristina Hernandez, G.R. No. 108028,July 30,1996. While the omission of the signature of the accused and his counsel renders a stipulation of facts inadmissible in evidence, the prosecution is not without remedy the prosecution can submit evidence to establish the elements of the crime instead of relying solely on the supposed admission of the accused in the stipulation (People vs. Bandang, 430 SCRA 570 [2004])

C. The accused can now plead guilty to a lower offense only if the latter is necessarily included in the offense charged.

D. On June 8, 2004, the Supreme Court En Banc issued A.M. 03-1-09-SC providing for GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRE-TRIAL AND USE OF DISCOVERY MEASURES to take effect on July 1, 2004, the second part of which deals on criminal cases.

XI. TRIAL (Rule 119)

After a plea of not guilty, the accused is given at least fifteen (15) days to prepare for trial, which should be commenced within thirty (30) days from receipt of the pre-trial order. (Sec. 1, Rule 119)

Trial shall continue from day to day as far as practicable until terminated. In no case shall be trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court . (Sec.2)

Exceptions to the 180-day rule:

1. Criminal cases covered by the Rules of Summary Procedure or where the penalty prescribed by law does not exceed six (6) months imprisonment or a fine of not more than one thousand (P1,000) pesos;2. Under R.A. 4980 where the offended party is about to depart from the Philippines with no definite date of return, in which case the trial shall commence within three days after the accused is arraigned and no postponement shall be granted of the initial hearing except on illness of the part of the accused or other grounds beyond the control of the accused.3. Child Abuse Cases (Rules and Regulations Implementing Sec. 32 of R.A. 7610, otherwise known as the Child Abuse Act)4. Violations of the Dangerous Drugs Act of 2002, R.A. 9165)5. Heinous Crimes and other crimes covered by Supreme Court Administrative Order No. 104-96, which shall be terminated within sixty (60) days from commencement of trial and to be decided within thirty (30) days from submission of case for decision, unless a shorter prior is provided by law or otherwise directed by the Supreme Court.NOTES: Section 3 of Rule 119 enumerates the periods of delay which shall be excluded from the thirty (30) day period within which to commence the trial of a criminal case, while Section 4 of the same Rule enumerates the factors for the granting of postponements or continuance of trial.

1.Trial In absentia The Constitution as well as Rule 115 of the Rules on Criminal Procedure permits trial in absentia provided that (1) the accused has been arraigned; (2) he has been duly notified of the trial; and (3) his failure to appear is unjustified.

2.The accused can however be compelled to appear during the trial for purpose of identification.

3.The non-inclusion of some of the names of eyewitnesses does not preclude the prosecutor from presenting them during the trial. The enumeration of witnesses in the information is not necessarily exhaustive, it is not meant to absolutely limit or lessen the prerogative of the prosecutor (People vs. Jamiro, 279 SCRA 290 [1997])

4. A Judges asking questions may amount to undue interference. When a judge, by cross-examining the defense witnesses, and not merely limiting himself to clarificatory questions, had taken up the cudgels for the prosecution in proving the case against the accused. The cold neutrality of an impartial judge requirement of due process is denied an accused when the judge, with his overzealousness, assumed the dual role of magistrate and advocate. (Tabuena vs. Sandiganbayan, 268 SCRA 332[1997])

5.The order of trial in a criminal case is provided for in Section 11, Rule 119 of the Rules of Criminal Procedure, with the prosecution first presenting evidence, followed by the accused, then rebuttal and sur-rebuttal evidence.

The order of trial as prescribed in Section 11 is intended to protect the fundamental right of the accused to be presumed innocent until the contrary is proved (Alejandro vs. Pepito, 96 SCRA 322 [1980]; A deviation from the regular course of trial which denied the accused his day in court or the prosecution of due process renders the judgment invalid. (Alonte vs. Savellano, Jr., 287 SCRA 245 [1998]

However, the order of trial may be modified if the accused admits the act or omission charged in the complaint or information but interposes a lawful defense. (Sec. 11, par. [e])

6. The trial of an accessory can proceed without awaiting the result of the separate charge against the principal. (Vino vs. People, 178 SCRA 626 [1989])

7. Examination of witness for the prosecution Under Section 15, Rule 119 of the Rules of Court, when it satisfactorily appears that a prosecution witness is too sick or infirm to appear at the trial, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial Failure or refusal of the accused to attend the examination shall be considered as a waiver.

8. Examination of witness for accused before trial Under Section 12, Rule 119, an accused may have his witnesses conditionally examined in his behalf by filing a motion alleging that his witness is too suck or infirm or resides more 100 kilometers from the place of trial and has no means to attend the same. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require.

Unlike an examination of a defense witness which may be taken before any judge, or if not practicable, before any member of the bar in good standing so designated by the judge in the order, or, if the other be granted by a court of superior jurisdiction, before an inferior court to be designated in the order, the examination of a witness for the prosecution may be made only before the judge or the court where the case is pending.

Under Section 7, Rule 119 of the 1964 Rules, the deposition of prosecution witnesses who are unable to testify may be taken, in the presence of the accused. Significantly, the 1985 Rules removed the taking of a deposition and is no longer included therein. Under the present Rule, the testimony of a prosecution witness may only be taken before the judge or court where the case is pending.

In People vs. Webb, 312 SCRA 573 [1999]. The trial judge denied a defense motion to take the oral deposition of its witnesses. The Court of Appeals reversed the lower court and ruled that the taking of such deposition in criminal cases is permissible. On appeal to the Supreme Court, the court did not squarely rule on the issue of whether or not the taking of oral deposition is available in criminal cases, but held that there was no grave abuse of discretion on the part of the trial judge in denying the motion since there was already more than sufficient evidence to establish the purpose of the deposition. The Supreme Court held that the use of discovery procedures in criminal cases is directed to the sound discretion of the trial judge.

9. Insofar as the examination of child witness is concerned, the Supreme Court has promulgated the Rules thereon, which took effect on December 15, 2000

10. A waiver of the accused of his right to present evidence should never be taken lightly and should always be subjected to a careful scrutiny by the court. To be upheld as valid, it must be established that the waiver is made voluntarily, knowingly, intelligently, and with sufficient awareness of the relevant circumstances and possible consequences. However, the invalidity of the waiver does not automatically vacate a finding of guilt in the criminal case and cause the remand thereof to the trial court; there must be a showing that the invalid waiver resulted in the inadequate presentation of facts by either the prosecution or the defense during the trial. (People vs. Beriber, 431 SCRA 332 [2004]

11. Discharge of a co-accused to be utilized as a state witness (People vs. Sandiganbayan and Paredes, G.R. No. 11543941, July 16, 1997; People vs. Reyes, G.R. No. 49112, October 22,1992; R.A. 9165, Otherwise known as the Dangerous Drugs Act of 2002) However, if a co-participant in a crime, after the conduct of the preliminary investigation, is subsequently admitted to the Witness Protection Program under R.A.6981 before the filing of the case in court, he shall not anymore be included in the criminal complaint or information. There is neither any need to file a motion to discharge him as a state witness. However, if he has been included in the information, the prosecution may seek his discharge under Section 17 of Rule 119. Under this provision, the court is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of the accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. (Webb vs. De Leon, 247 SCRA 652[1995]

12. Application of Section 19,Rule 119. When a mistake has been made in charging the proper offense. The articles presupposes that there has been a trial but the court believes that the accused cannot be convicted of the offense charged or of one that necessarily includes it. It is the primary function of the court to motu propio order the dismissal of the case and direct the filing of the appropriate information.

X. JUDGMENT (Rule 120)

A..Unlike in civil cases where judgment is deemed rendered by the delivery of the judge of his signed decision to the Clerk of Court, who, in turn, has the ministerial duty of furnishing the parties with copies thereof, in criminal cases, on the other hand, the judgment must be promulgated in open court (Sec. 6, Rule 120) and that the judge must still be in office at the time, unless he is absent or outside the province. If the judge had ceased to be a judge at the time of the promulgation, the judgment is null and void. It should be promulgated by the next judge in accordance with the evidence already introduced. (People vs. So., L-8733, July 30, 1957)

B...Promulgation of Judgment Merely reading the dispositive portion of the decision to the accused is not sufficient; it is the judgment that must be read to him, stating the facts and the law on which such judgment is based.(Dizon vs. Judge Lilia Lopez, 278 SCRA 483 [1997])

C..Promulgation in absentia (Sec, 6, Rule 120;Pascua vs. Court of Appeals, G.R. No. 140243,December 14,2000);People vs. Mapalao,197 SCRA 76;People vs. Agbulos,222 SCRA 196)

D.Insofar as juveniles are concerned, the court shall promulgate the sentence against them in accordance with Section 6, Rule 120 of the Revised Rules of Criminal Procedure, but such sentence shall be suspended without need of application by the convicted juvenile. The court shall set the case for disposition conference within fifteen (15) days from the promulgation of sentence which shall be attended by the social worker of the Family Court, the juvenile, and his parents or guardian ad litem (Secs. 31, 32, Rule on Juveniles)

E. A decision need not be a complete of the evidence presented. It is sufficient if it states the facts as found by the court; To test the adequacy of a challenged decision, the proper yardstick is Section14 of Article VIII of the Constitution. (People vs. Sandiganbayan, et al., 447 SCRA 291 [2004])

F. It is the bounden duty of a judge to emphasize that a court of la