CRIMINAL PROCEDURE (REMEDIES, TIME AND WAIVERS)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 2A 2011 1

REMEDIES Remedies of the offended party if the Prosecutor refuses to file an information: SCAN M

1. Take up the matter with the Secretary of Justice 2. File criminal action against the Prosecutor with the corresponding civil action

for damages 3. Institute administrative charges against the erring Prosecutor 4. Lodge a new complaint before the court having jurisdiction over the offense 5. File an action for mandamus, in case of grave abuse of discretion

Remedies of the accused if there was no preliminary investigation PRICE

1. File for petition for prohibition 2. Refuse to enter a plea upon arraignment and object to further proceedings 3. Insist on a preliminary investigation 4. File a petition for certiorari 5. Raise lack of preliminary investigation as error on appeal

Remedies of the accused when he believes that there is no probable cause to hold him for trial MMR

1. File with the trial court a motion to dismiss on such ground or for the determination of probable cause

2. If the warrant arrest has been issued, file a motion to quash the arrest warrant

3. If the warrant arrest has been issued, move to recall the arrest warrant on the found of lack of probable cause

Remedies of a party against who a warrant of arrest has been issued PAMPI

1. Post bail 2. Ask for a reinvestigation 3. File a motion to quash information 4. File a petition for review 5. if denied, he may appeal the judgment after trial

Remedies available to the accused when his right to a speedy trial is violated HAMM

1. Habeas corpus 2. Ask for the trial of the case 3. Mandamus to compel the dismissal of the information 4. Ask for the trial and then move to dismiss

Remedy of aggrieved party when Motion to Quash is granted by the court 1. Appeal 2. Special civil action of certiorari (where there is a patent, capricious and

whimsical exercise discretion by judge or where an appeal will not promptly relieve the aggrieved party)

Remedies of the accused if the court denied his motion to quash PAP

1. Accused should plead 2. If after the trial on the merits an adverse decision is rendered, he can appeal

from the judgment of conviction, and interpose the denial of the motion as an error

3. Proceed to trial without prejudice to present the special defenses he invoked in his motion

Remedies of accused where a prosecuting officer without good cause secures the postponements of the trial of a defendant against his protest beyond a reasonable period of time

1. Mandamus to compel 2. Habeas corpus

Remedies of the offended party if the judgment fails to award civil liability MAC

1. Mandamus 2. Appeal (Rule 45) 3. Certiorari (Rule 65)

Remedies that the accused cannot avail of when judgment is promulgated in absentia MAPPS

1. Motion for new trial or reconsideration 2. Appeal 3. Prohibition 4. Parole 5. Suspension of sentence

Remedies of party adversely affected by a search warrant MMA

1. Motion to quash the search warrant with the issuing court 2. Motion to suppress evidence with the court trying the criminal case 3. Action for replevin, if the properties seized were lawfully possessed

Civil action for damages based on Article 35 of CC

- Remedy of the complainant if the Secretary of Justice doesnt allow the filing of a criminal complaint against the accused because of insufficiency of evidence

CRIMINAL PROCEDURE (REMEDIES, TIME AND WAIVERS)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 2A 2011 2

Modes of discovery - Remedy of a party in case of an unavailability of witness

Motion for bill of particulars - Remedy against an indictment that fails to allege the time of commission of

the offense with sufficient definiteness Motion to dismiss

- Filed by the Prosecutor with the trial court when the Secretary of Justice reverses the ruling of the former

- Remedy where accused is not brought to trial within the time limit Motion to Increase bail

- Remedy provided by the court when there is a probability that the accused will escape or if he had previously escaped while under detention for a bailable offense

Motion to Quash

- Remedy of a person illegally arrested

- Remedy of a person in case of duplicitous offenses

- Remedy of a person against whom a warrant has been issued Motion for reinvestigation or Motion to withdraw information

- Prosecutor finds no prima facie case exist after filing the case in court Petition for certiorari and prohibition

- Where there is grave abuse of discretion, the order of the trial count discharging an accused as a state witness may be challenged

Petition for mandamus

- Remedy to compel the judge to put in writing the decision of the court - Compel a judge to award civil damages - Remedy of offended party if prosecutor refuses to file information

Special civil action of certiorari under Rule 43

- Remedy of the accused if he is denied bail

Special civil action of certiorari under Rule 65

- Remedy of an aggrieved party against resolutions of the Ombudsman in criminal or non-administrative cases

TIME

During preliminary investigation 1. Raise prejudicial question

After inquest

1. File information or complaint against a person arrested without a warrant

Before filing of complaint or information 1. Ask for a preliminary investigation (but waive Article 125 of RPC) 2. Person lawfully arrested may post bail

After filing of complaint or information

1. Ask for a preliminary investigation within 5 days from the time he learns of its filing of the complaint or information

2. Person lawfully arrested may post bail (without waiving his right to PI) 3. Apply for a warrant of arrest 4. Preliminary attachment

After arrest or voluntary surrender

1. Petition for bail Within 30 days from the filing of information or from arrest/voluntary surrender

1. Arraignment Before arraignment

1. Objection to the illegality of arrest 2. Move for a bill of particulars 3. Raise error in the name or identity by the accused

During arraignment

1. Plea to a lesser offense (consent of offended party and prosecutor) 2. Right to counsel and to be provided by one by the court (if accused cannot

afford it)

After arraignment 1. Formal amendment with leave of court when such amendment involves a

supervening fact which changes the nature of the crime charged in the information or upgrades it to a higher court

2. Trial in absentia 3. Plea to lesser offense (before trial, after withdrawing his previous plea) 4. Motion to quash (on the grounds that the fact alleged do not constitute an

offense, no jurisdiction, prescription of offense/penalty, or double jeopardy) 5. Pre-trial (within 30 days from the time acquires jurisdiction over accused)

CRIMINAL PROCEDURE (REMEDIES, TIME AND WAIVERS)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 2A 2011 3

Within 30 days from arraignment or receipt of pre-trial order 1. Trial shall commence

Before plea 1. Prosecutor may upgrade the offense, allege qualifying and aggravating

circumstances, or change the offense charged without leave of court 2. Substitution of information 3. Objections on illegal arrest, lack of or irregular preliminary investigation 4. Motion to quash 5. Nolle prosequi 6. Petition for suspension of arraignment

After plea

1. Formal amendment with leave of court when such amendment is not prejudicial to the rights of the accused

2. Substitution of information if it will not place the accused twice in jeopardy Before trial

1. Offended party may compromise the civil aspect of a crime 2. Accused may have his witness examined conditionally in his behalf upon

motion with notice to all other parties 3. Motion for separate trial 4. Preliminary conference

Before prosecution starts to present its evidence

1. Reservation of the right to institute the separate civil actions Before prosecution rests its case

1. Petition to suspend proceedings by reason of prejudicial question 2. Plea to lesser offense (granted by the judge with the approval of the

prosecutor and the offended party if the prosecution does not have sufficient evidence to establish guilt of the accused)

3. Application for discharge as a state witness (upon motion of prosecution) After prosecution rests its case

1. Demurrer to evidence with or without leave of court Before judgment

1. Consolidation of criminal and civil cases in the court trying the criminal action 2. Petition for bail before conviction of any offense 3. When mistake has been made in charging the proper offense, court shall

commit the accused and dismiss the original case upon the filing of the proper information

4. Reopening of trial 5. Preliminary attachment

After judgment 1. If the supervening event which changes the nature of the crime to a more

serious one occurred, charge the accused for such more serious crime without placing the accused in double jeopardy

2. Appeal when the trial court convicted accused but dismissed the civil action instituted therein

3. Institution of civil action after final judgment has been rendered in criminal action

4. Petition for bail as a matter of right (MTC) or matter of discretion (RTC for a non-capital offense)

Before finality of judgment

1. Improvident plea may be withdrawn 2. Motion to reopen trial 3. Modify or set aside judgment (before appeal is perfected, and upon motion

of accused) 4. Motion for new trial 5. Reconsideration

Within 15 days from promulgation of judgment 1. Accused may surrender and file a motion for leave of court to avail of the

remedies against the judgment 2. Trial court may validly modify the civil aspect of its decision (even if there is

already a perfected appeal) 3. Appeal of a judgment

Within the period for perfecting the appeal

1. Application for probation (after conviction of accused) WAIVERS

Person objects to jurisdiction of the court over his person but also raised other questions

Failure to make a timely objection to a defectively crafted information before arraignment (ex. Duplicitous information)

Desistance of complainant waives right to pursue civil indemnity

Suspension of the criminal case due to a prejudicial question

Right of an accused to a preliminary investigation

Right to appeal

Illegality of arrest, when accused enters his plea of not guilty and participates in the trial

Right to be present during the trial, when accused fails to appear at the trial without justification despite due notice

Right to bail

CRIMINAL PROCEDURE (REMEDIES, TIME AND WAIVERS)

GRACE XAVIERE E. ESCOSIA / ATENEO LAW 2A 2011 4

Right to present evidence on his own behalf and to confront and cross-examine witnesses that have testified against him (for escapee tried in absentia)

Right to counsel, when accused voluntarily submits himself to the jurisdiction of the court and proceeds with his defense

Right against self-incrimination, when accused failed to invoke the privilege at the proper time

Right to confrontation

Failure to move for dismissal of the information where accused is not brought to trial within the time limit

Right to notice of appeal

Accused appeals a judgment of conviction, he waives double jeopardy

Demurrer of evidence waives the right to present evidence

Consented warrantless search

Legality of the search warrant and the admissibility of the evidence obtained, when no objection to the legality of the search warrant was raised during the trial

CANNOT BE WAIVED

Jurisdiction

Facts charged do not constitute offense

No jurisdiction

Criminal action or liability has been extinguished

Double jeopardy