Criminal Procedure Remedies Alien Space Bats I 1.

Remedy for a case filed in court without compliance with prior Barangay conciliation In a civil case, FILE A MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION, PREMATURITY, and NON-COMPLIANCE WITH A CONDITION PRECEDENT. In a criminal case falling under the Rules on Summary Procedure, (if the penalty for the crime is imprisonment of less than 6 months), you may file a MOTION TO QUASH FOR NON-REFERRAL TO THE LUPON FOR
CONCILIATION PROCEEDINGS

If there is a valid referral, you can no longer file any motion to quash except for lack of jurisdiction over the subject matter because motion to quash is generally a prohibited pleading in summary procedure, except for lack of jurisdiction over the subject matter and non-referral to the lupon for conciliation. 2. Repudiation of the settlement The amicable settlement may be repudiated by any of the parties within 10 days from the date of settlement by filing a sworn statement to the Lupon chairman, on the ground that consent is vitiated by Fraud, Violence, or Intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint. 3. Execution and enforcement of amicable settlement or arbitration award a. Execution by the Lupon within 6 months from the date of settlement, and b. After the lapse of such time, the settlement may be enforced by action in the appropriate city or municipal court. 4. Note, in criminal cases falling under Summary Procedure, a motion to quash is a prohibited pleading except on the ground of lack of jurisdiction over the subject matter or failure to refer the case the Lupon for conciliation proceedings. 5. Effect of non-referral of the case to the Barangay: it is well-settled that the non-referral of a case for barangay conciliation is non-

jurisdictional in nature and may therefore be deemed waived if not raised seasonably in a motion to dismiss. 6. Under Sec. 416 of the Local Government Code, the amicable settlement has the force and effect of a final judgment of a court upon the expiration of 10 days from the date thereof, unless the settlement is repudiated within the said period. 7. Remedy of the complainant when the motion to quash of the accused is granted: Re-file the information or complaint because an order granting a motion to quash is not a bar for another prosecution of the same offense unless the motion is based on the fact that: a. The criminal action has prescribed b. The criminal liability has been extinguished, and c. Double jeopardy Complainant can re-file the complaint except when the Quashal of his complaint is based on the preceding grounds. 8. What if the granting of the motion to quash of the accused is tainted with grave abuse of discretion as when the judge sustained the Quashal even though the ground is not sufficient? For example, in a summary proceeding, the judge granted a motion to quash even though the grounds did not fall under the exception? The complainant can avail of certiorari under Rule 65. When there is no appeal, NOR ANY PLAIN, SPEEDY, AND ADEQUATE REMEDY IN THE ORDINARY COURSE OF LAW, a person aggrieved thereby may file a verified petition in the proper court. 9. Remedy of the accused if the motion to quash is denied a. Proceed with arraignment and trial. In case of an adverse decision, file an appeal assigning as error the denial of the motion to quash b. If the denial of the motion to quash is tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, file a
PETITION FOR CERTIORARI WITH A PRAYER FOR PRELIMINARY INJUNCTION

to stay the proceeding.

II 1. Course of action of an inquest officer in case of improper arrest a. Recommend the release of the person arrested or detained

b. Note down the disposition on the referral document c. Prepare a brief memorandum indicating the reasons for the action taken, and d. Forward the same together with the record of the case to the City or Provincial Prosecutor for appropriate action 2. Duty of inquest officer in case the arrest is proper Sec.10 DOJ Circular No. 61 In case the arrest of the person detained is proper, THE INQUEST OFFICER
SHALL ASK THE PERSON IF HE DESIRES TO AVAIL OF A PRELIMINARY INVESTIGATION.

If he does, he shall execute a waiver in accordance with Art.125 of the RPC with the assistance of his counsel, or a responsible person of his choice, in case no lawyer is available. 3. Remedy of the detained prisoner in case there is a delay in the delivery of detained prisoners to the proper judicial authorities a. File a criminal complaint for delay in the delivery of detained persons in violation of Art. 125 of the RPC
Art. 125. Delay in the delivery of detained persons to the proper judicial authorities. The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person for the proper judicial authorities within the period of: twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and thirty-six hours (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent. In every case, the person detained shall be informed of the cause of his detention and shall be allowed, upon his request, to communicate and confer at any time with his attorney or counsel.

Under these circumstances, a criminal complaint or information should be filed with the proper judicial authorities within {twelve(12), eighteen(18), or thirty six (36) hours} of his arrest. b. File a motion for a preliminary investigation in accordance with Sec. 6 Rule 112 c. Apply for bail in accordance with Sec. 26, Rule 114. 4. Remedy of the defendant when a search warrant is issued against him a. File a motion to QUASH A SEARCH WARRANT to be filed in the court which issued the warrant in accordance with Sec. 14, Rule 126 on the ground of there is no probable cause or the place searched or property seized are not particularly described or specified

Other grounds for Quashal of search warrant General warrant Scatter-shot warrant Failure to conduct searching questions Search warrant not based on personal knowledge or information When personalty ordered to be seized is legally in the possession of the person.

b. In the alternative, file a motion to SUPPRESS EVIDENCE to be filed with the court trying the case c. File a PETITION FOR CERTIORARI under Rule 65 if the court issuing the search warrant has no jurisdiction d. File a criminal complaint against the implementing officers for violation of Art. 129 of the Revised Penal Code.
Art. 129 . Search warrants maliciously obtained AND abuse in the service of those legally obtained. In addition to the liability attaching to the offender for the commission of any other offense, the penalty of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000 pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause, or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same.

e. File a COMPLAINT FOR REPLEVIN in case the personal properties seized are in his lawful possession. This is filed with the same court which issued the search warrant. (Jurisprudence)
Note: after the seizure of the goods or articles by virtue of the search warrant, a corresponding affidavit- complaint shall be prepared by the searching officers to be filed before the prosecutors office for the conduct of preliminary investigation. In case of finding of probable cause, a criminal information shall be filed before the proper court.

When a criminal information has been filed in the proper court, the person charged of an offense may file a Motion to Suppress Evidence in accordance with Sec. 14 Rule 126. III 1. Remedy of the person charged with an offense when the officer who filed the information had no authority to do so

a. File a motion to quash on the ground that the officer filing the case has no authority to do so, and the court trying the case has no jurisdiction over the person of the accused b. If the motion to quash is denied, the remedy of the accused is to proceed with the arraignment and trial, and in case of an adverse decision, file an appeal assigning as error the motion to quash. c. If the denial of the motion to quash is tainted with grave abuse of discretion, file a petition for certiorari with a prayer for preliminary injunction to stay the proceeding. d. File an administrative case against the erring officer e. File a civil action for damages against the erring officer IV 1. Course of action of investigating prosecutor upon receipt of the complaint. The investigating officer within 10 days after the filing of the complaint, may, in his discretion, undertake to perform the following actions: a. To dismiss the affidavit-complaint if he finds no ground to continue with the investigation, or b. To issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. 2. Right of the respondent upon receipt of the complaint under the rules The respondent upon receipt of the subpoena issued by the investigating officer together with the attached complaint and supporting affidavits and documents shall have the following rights: a. He shall have the right to examine the evidence submitted and to copy them at his expense b. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent

3. Remedies of the accused in case of denial of his right to preliminary investigation a. The accused may refuse to enter plea upon arraignment b. Object to the further continuation of the proceeding based on lack of preliminary investigation c. File a motion for preliminary investigation or reinvestigation with the court d. FILE A MOTION FOR INHIBITION to constrain the prosecutor who previously refused to conduct the preliminary investigation from handling the reinvestigation e. In case there is grave abuse of discretion, file a petition for certiorari and prohibition under Rule 65 to prevent the prosecutor from filing an information f. Apply for bail if bail is a matter of right; file a petition for bail if bail is a matter of discretion g. When information is already filed in court without preliminary investigation, the accused MAY STILL ASK FOR PRELIMINARY INVESTIGATION WITHIN 5 DAYS from the time he learns of the filing of the information pursuant to Sec. 6 of Rule 112.

4. Remedies of the COMPLAINANT in case the prosecutor dismisses the complaint. a. In case of adverse resolution, the complainant should file a motion for reconsideration before the investigating prosecutor within 10 days from receipt of the adverse decision. If denied, Bring the matter to the city/provincial/regional/state prosecutor If denied, file a petition for review before the Department of Justice pursuant to DOJ circular 70 within 15 days from receipt of the denial of the motion for reconsideration. If petition for review is denied or in case of an adverse decision by the DOJ, file a motion for reconsideration within 15 days from receipt of notice of denial.

 If the motion for reconsideration is denied by the DOJ, there are two possible scenarios: If non-bailable offense: File a petition for review to the Office of the President PURSUANT TO AM 58 WITHIN 15 DAYS from receipt of notice of denial If denied by the OP, file a motion for reconsideration thereto within 15 days If reconsideration is denied, file a petition for review before the Court of Appeals within 15 days from notice of denial PURSUANT TO RULE 43. If the petition for review is denied or in case of an adverse judgment, file a motion for reconsideration within 15 days PURSUANT TO RULE 52 If motion for reconsideration is denied by the Court of Appeals, FILE A PETITION FOR REVIEW ON CERTIORARI UNDER RULE 45. If denied, or in case of an adverse judgment, file a motion for reconsideration under Rule 52. If bailable offenses File a petition for CERTIORARI UNDER RULE 65 BEFORE THE COURT OF APPEALS because no appeal nor plain, speedy, or adequate relief is available in the ordinary course of the law. If the certiorari is denied, or in case of adverse resolution, file a motion for reconsideration under Rule 52 within 15 days from receipt of the order. If motion for reconsideration is denied by the Court of Appeals, file a PETITION FOR REVIEW ON CERTIORARI BEFORE THE SUPREME COURT UNDER RULE 45. If denied, file a MOTION FOR RECONSIDERATION UNDER RULE 52.

b. In extreme cases, and in instances where grave abuse of discretion is apparent, file a petition for certiorari, prohibition and mandamus based on the following grounds: For the orderly administration of justice To prevent the use of the strong arm of the law in an oppressive and vindictive manner To avoid multiplicity of actions To afford adequate protection to the constitutional rights of the accused The statute relied upon is unconstitutional or invalid Where it is a case of persecution rather than prosecution etc
Note: the right to preliminary investigation may be waived when the accused fails to invoke it before entering his plea.

In the absence of preliminary investigation, the court shall order to conduct the same. If there were no preliminary investigations and the defendants before entering their plea file a motion therefor, the court, instead of dismissing the information should order the prosecutor to conduct it.
Note: Where the offense is only punishable by imprisonment of less than four years, two months and one day, preliminary investigation is not required.

5. Remedies of the RESPONDENT in case of adverse resolution from the prosecutor Answer: follow the procedure stated above This is important: the appeal to the Secretary of Justice shall not be available if accused has already been arraigned. The appeal to the Secretary of Justice shall not be entertained if the appellant had already been arraigned and if the arraignment took place during the pendency of the appeal. The appeal or petition for review shall be dismissed motu proprio by the Secretary of Justice. (jurisprudence)

Note that the appeal by the respondent to the Department of Justice shall not hold the filing of the information before the court, unless directed otherwise. Sec. 9 of DOJ Circular No. 70 provides: unless the Secretary of Justice directs otherwise, the appeal shall not hold the filing of the corresponding information in court on the basis of the finding of probable cause in the appealed resolution. The appellant (the respondent) and the trial prosecutor shall see to it that pending resolution of the petition for review before the DOJ, the proceedings in court are held in abeyance. Hence, if the information is filed pending review, the appellant-respondent should also file a MOTION TO DEFER PROCEEDINGS due to the pendency of the petition for review pursuant to Sec. 5 of DOJ Circular No. 70. V 1. Remedies from the Resolution of the Ombudsman FILE A MOTION FOR RECONSIDERATION OF THE DECISION OF THE OMBUDSMAN WITHIN 5 DAYS FROM NOTICE (Estrada v. Desierto) If the motion for reconsideration is denied, there following are the steps to be taken: IN A CRIMINAL CASE: File a petition for CERTIORARI BEFORE THE SUPREME COURT UNDER RULE 65 on the ground that there is NO APPEAL NOR ANY PLAIN, SPEEDY, AND ADEQUATE RELIEF AVAILABLE. IN AN ADMINISTRATIVE CASE: File a petition for review before the Court of Appeals under Rule 43. The enumeration under Rule 43 is not exclusive. If the Court of Appeals denied the petition for review, or in case of adverse decision, file a motion for reconsideration under Rule 52. If the motion for reconsideration is denied, file a petition for review on certiorari before the Supreme Court under Rule 45.

 If the petition for review on certiorari is denied, or in case of adverse decision, file a motion for reconsideration under Rule 52. VI 1. Remedy so a private prosecutor can prosecute the case Pursuant to Section 5 of Rule 110 which provides that in case of heavy work schedule or the lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office subject to the approval of the court. To gain the approval of the court: a. The private prosecutor should file a MOTION PROSECUTE BY PRIVATE PROSECUTOR, and b. The public prosecutor should file a MOTION TO APPROVE AUTHORITY TO PROSECUTE. VII 1. Remedy in case of violation of the prohibition on duplicity of offenses If there is duplicity in the offense charged, the remedy of the accused is to timely file a motion to quash the information based on Sec. 3 par. f. of Rule 117. To timely file means to file it before entering a plea. If he fails to file the motion to quash, the objection is deemed waived in which case the accused may be tried and convicted for as many offenses charged and proved by the prosecution during the trial. Separate penalty for each offense shall be imposed. If the court denies the motion to quash, what is the remedy? Proceed with the arraignment and trial and in case of adverse judgment by the trial court, appeal the case assigning as error on appeal the failure to quash the information. Note that at this point, any dismissal of the case shall be a dismissal with prejudice. Hence, double jeopardy applies. This is favorable to the accused.

2. What is the remedy of the prosecution or complainant if the motion to quash the information is granted or sustained? The remedy is to re-file the case because the Quashal does not bar the subsequent prosecution of the same offense, except when the grounds are double jeopardy, the criminal liability has been extinguished, and the criminal action has prescribed. This is pursuant to Sec. 5 of Rule 117. VIII 1. The remedy of Amendment The rule on the amendment of complaint or information is clearly spelled out UNDER SEC. 14 OF RULE 110. It provides that a complaint or information may be amended, IN FORM OR IN SUBSTANCE, without leave of court, AT ANY TIME BEFORE THE ACCUSED ENTERS HIS PLEA. AFTER THE PLEA AND DURING THE TRIAL, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, WHICH DOWNGRADES THE NATURE OF THE OFFENSES CHARGED OR EXCLUDES ANY ACCUSED FROM THE COMPLAINT OR INFORMATION, can only be made upon motion by the prosecution, with notice to the offended party and with leave of court. Note: amendment of information does not apply to appealed cases. Dismissal of the appeal would result in the revival of original judgment of conviction. Hence, Sec. 14 of Rule 110 will not apply. The remedy of substitution Section. 14 of Rule 110 provides that if it appears AT ANY TIME BEFORE JUDGMENT that a MISTAKE HAS BEEN MADE IN CHARGING THE PROPER OFFENSE, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Sec. 19 Rule 119, provided the accused would not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

IX 1. Remedy of Consolidation of Civil and Criminal Actions a. File a motion for consolidation and joint trial pursuant to Sec. 2 of Rule 112. 2. Remedy of Consolidation of trials of related offenses a. File a motion for consolidation and joint trial pursuant to Sec. 22 of Rule 119 X 1. The remedy of Suspension of Proceedings based on a Prejudicial Question Who may file the remedy? This is a remedy for the respondent or accused. The remedy may be filed in the OFFICE OF THE PROSECUTOR OR when the criminal action has been filed in the court for trial, the petition to suspend proceedings shall be filed in the same court AT ANY TIME BEFORE THE PROSECUTION RESTS. a. File a motion to suspend proceedings based on a prejudicial question, filed before the Office of the Prosecutor. b. File a motion to suspend proceedings based on a prejudicial question, filed before the court where the criminal case is pending.

XI

Remedy of the Person who has a Warrant of Arrest When warrant of arrest may issue Sec. 5 of Rule 112 By the Regional Trial Court Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.

He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Sec. 6 of this Rule. IN CASE OF DOUBT on the existence of probable cause, THE JUDGE MAY ORDER THE PROSECUTOR TO PRESENT ADDITIONAL EVIDENCE within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint.

By the Municipal Trial Court

When required pursuant to the second paragraph of Section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the MTC shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.
par. a) - Within 10 days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to Sec. 6 of this Rule. IN CASE OF DOUBT on the existence of probable cause, THE JUDGE MAY ORDER THE PROSECUTOR TO PRESENT ADDITIONAL EVIDENCE within 5 days from notice and the issue must be resolved by the court within 30 days from the filing of the complaint.

Remedy 1. File a motion for the JUDICIAL DETERMINATION OF PROBABLE CAUSE pursuant to Section 5 of Rule 112 with a prayer that the issuance of warrant of arrest TO BE HELD IN ABEYANCE

2. File a motion for the JUDICIAL DETERMINATION OF PROBABLE CAUSE pursuant to Section 5 of Rule 112 with a prayer to RECALL THE WARRANT of arrest which has been issued Note: if the investigating judge, in the exercise of his discretion, decides not to issue a warrant, he cannot be compelled by mandamus to issue it. Remedy of the Prosecutor if the prosecutor believes that the accused should be immediately placed under custody so as not to frustrate the ends of justice, he may RE-FILE/AMEND the information so that the court will issue a warrant of arrest. XII Remedy of the Accused when an information is filed against him without preliminary investigation Sec. 6 Rule 112 xxx After the filing of the complaint or information in court without preliminary investigation, the accused may, within 5 days from the time he learns of its filing, ask a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. o The accused may post the necessary bail or if no bail is recommended, he may opt to file a petition for bail, and in case of excessive bail, file a motion for the reduction of bail. o File a motion for reinvestigation pursuant to Sec. 6 of Rule 112 in the court where the case is pending o If case of denial of the motion for reinvestigation, the accused may file a motion for reconsideration. The order denying the motion for reinvestigation is an interlocutory order. It does not dispose of the case on the merits. Hence, it is not appealable. o The remedy then of the accused is to file a PETITION FOR
CERTIORARI AND PROHIBITION BEFORE THE COURT OF APPEALS UNDER RULE 65 because

there is no plain, speedy, and adequate

relief available. (Alternatively, he may also file a petition for certiorari with a prayer for preliminary injunction.) o If the decision of the Court of Appeals is adverse, file a petition for review on certiorari WITH THE SUPREME COURT pursuant to Rule 45. XIII

Remedy in Section 11 of Rule 116 or Suspension of Arraignment

Before the arraignment, the accused may move for the deferment of the arraignment and subsequent proceedings based on the grounds laid down in Sec. 11 of Rule 116: Sec. 11 Rule 116 provides that upon motion of the proper party, the arraignment shall be suspended in the following cases:

a. The ACCUSED APPEARS TO BE SUFFERING FROM AN UNSOUND MENTAL CONDITION which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose.

b. There exists a PREJUDICIAL QUESTION, and

c. A PETITION FOR REVIEW OF THE RESOLUTION OF THE PROSECUTOR IS PENDING AT EITHER THE DEPARTMENT OF JUSTICE OR THE OFFICE OF THE PRESIDENT; provided, that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office.

XIV

Bail as a Remedy of the Person in the Custody of the law Persons applying for bail must submit himself to the jurisdiction of the court. He must be under the custody of the law; custody distinguished from jurisdiction of the court In Pico v. Judge Combong, Jr., Pico deals with an application for bail, where there is special requirement of the application being in the custody of law. Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person. Custody of the law is required before the court can act upon the application for bail, but is not required for the adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of the defense of lack of jurisdiction over the person of the accused. Custody of the law is accomplished either by arrest or voluntary surrender, while jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be in custody of the law, such as when the accused escapes custody after his trial has commenced. The purpose of bail is to secure the release of a person in the custody of the law. The rationale behind this special rule on bail is that it discourages and prevents resort to the former pernicious practice wherein the accused could just send another in his stead to post bail without recognizing the jurisdiction of the court by his personal appearance therein and compliance with the requirements therefor. There is, however, an exception to the rule that the filing of pleadings seeking affirmative relief constitutes voluntary appearance, and the consequent submission of ones person to the jurisdiction of the court.

This is in the case of pleadings which prayer is precisely for the avoidance of the jurisdiction of the court, which only leads to a special appearance.

These pleadings are: 1. In civil cases, motions to dismiss on the ground of lack of jurisdiction over the person of the defendant, whether or not other grounds for dismissal are included. 2. In criminal cases, motions to quash a complaint on the ground of lack of jurisdiction over the person of the accused, and 3. Motions to quash warrant of arrest. The first two are consequences of the fact that failure to file them would constitute a waiver of the defense of lack of jurisdiction over the person. The third, motion to quash warrant of arrest, is a consequence of the fact that it is the very legality of the court process forcing the submission of the person of the accused that is the very issue in a motion to quash warrant of arrest. To recapitulate, in criminal cases, jurisdiction over the person of the accused is deemed waived when the accused files any pleading seeking affirmative relief, except in cases when he questions the jurisdiction of the court over his person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the court, although there is neither jurisdiction over his person nor custody of the law. However, if a person invoking special jurisdiction of the court applies for bail, he must first submit himself to the custody of the law. (jurisprudence) A judge should know the basic rule that the right to nail can be availed of by a person in the custody of the law or otherwise deprived of his liberty and it would be premature to file a petition for bail for someone whose freedom has yet to be curtailed. Remedy of the person applying for bail: FILE AN UNDERTAKING PURSUANT TO SEC. 2 OF RULE 114. Note: Bail hearing is mandatory A hearing is mandatory in granting bail whether it is a matter of right or discretion. A hearing is required even when the prosecution refuses to adduce evidence or fails to interpose an objection for bail.

Petition for Bail: Remedy of the person charged with an offense when bail is not a matter of right, pursuant to Sec. 5 of Rule 114. Motion to Reduce Bail: Remedy when bail is excessive pursuant to Sec. 20 of Rule 114.

When the bail is forfeited; remedy of the surety The remedy of the surety is to APPEAL FROM THE ORDER DIRECTING THE EXECUTION OF THE JUDGMENT of forfeiture and not from the writ of execution. Petition for certiorari with a prayer for preliminary injunction may also lie if there is already a writ of execution and appeal is not available. LIABILITY OF THE BONDSMEN CANNOT BE MITIGATED OR REDUCED;
EXCEPTIONS

Once there is a breach of the duties of the bondsmen, the court shall not reduce or mitigate their liability except when 1. The accused has been surrendered by them, or 2. The accused was acquitted of the charges. Cancellation of bail Sec. 22 of Rule 114, CANCELLATION FOR BAIL- 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. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, OR execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail. Note: death of the accused after his failure to appear before the courts when so required shall not exonerate the bondsmen.

XV

Remedy of Quashal of Warrant of Arrest

The accused may move for the QUASHAL OF THE WARRANT OF ARREST in accordance with the provisions of Sec. 2, Article III of the Constitution, Sec. 26 Rule 114 and other pertinent provisions of the rules, based on the following grounds: a. Illegality of the arrest

b. Illegality in the issuance of the warrant of arrest itself, and c. Lack or absence of preliminary investigation

XVI

Remedy of Motion to Quash the Information

An accused may move to quash the information at any time before he enters his plea. Exceptions: the accused may move to quash the information even after he enters his plea in the following instances: a. When the complaint or information does not charge an offense b. When the court lacks jurisdiction over the offense charged c. When there is extinction of the criminal offense or criminal liability, and d. When there is double jeopardy. Any of these grounds can be considered motu proprio by the court AT ANY STAGE OF THE PROCEEDINGS OR ON APPEAL.

Accused filed a motion to quash on the ground that the facts alleged in the information do not constitute an offense. What is the remedy of the prosecution? The remedy is to amend the information. Amendment of the information, whether in form or in substance, is a matter of right and may be effected without leave of court, before the accused makes his plea.

Accused files a motion to quash the information on the ground that the officer who filed the case had no authority to do so/ what is the remedy of the prosecution? Re-file the information. The defect cannot be cured by mere amendment. A valid information must be signed by an officer with authority to do so. If he has no authority, the information cannot confer jurisdiction on the court over the person of the accused and the offense charged. The infirmity

cannot be cured by the silence, acquiescence, or even by the express consent of the parties.

Information was filed by a person who had no authority to do so. What is the remedy of the accused? File an omnibus motion to quash the information on the grounds that the officer filing the information has no authority to do so, and that the court has no jurisdiction over the person of the accused and the offense charged.

Information does not conform substantially to the prescribed form; Remedies An information filed in the name of the private complainant and not the People of the Philippines is a mere formal defect. It is curable by amendment at any stage of the trial, as long as it is done with leave of court after arraignment. Remedy of the accused is to file a motion to quash but the prosecution can simply amend the information.

Note: lack of probable cause is not a ground for a motion to quash. A motion to quash should be based on a defect in the information which is evident on its face. The guilt or innocence of the accused, their degree of participation, and the mitigating, aggravating or alternative circumstances which should be appreciated are properly the subject of trial on the merits, rather than a motion to quash. Effect of sustaining a motion to quash

Sec. 5 Rule 117 -if the motion to quash is sustained, the court may order that another complaint or information be filed EXCEPT AS PROVIDED IN SEC. 6 OF THIS RULE. IF THE ORDER IS MADE, the accused, if in custody, shall not be discharged unless admitted to bail. IF NO ORDER IS MADE OR IF HAVING BEEN MADE, NO NEW INFORMATION IS FILED within the time specified in the order, or

within such further time as the court may allow for good cause, if in custody, shall be discharged unless he is also in custody for another charge.

Remedy of the accused in case of denial of motion to quash It is settled that a special civil action for certiorari and prohibition is not the proper remedy to assail the denial of a motion to quash an information. The established rule is that when such an adverse interlocutory order is rendered, the remedy is not to resort forthwith with the certiorari or prohibition, but to continue with the case in due course and, when an unfavourable verdict is handed down, to take an appeal assigning as errors the denial of the motion to quash. Only when the court issued such order without or in excess of jurisdiction or with grave abuse of discretion and when the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford an expeditious relief will certiorari be considered as an appropriate remedy to assail an interlocutory order. Quashal of the Information after arraignment on the ground that the offense charged do not constitute an offense pursuant to Sec. 9, Rule 117. If granted, will double jeopardy apply? No. the elements of double jeopardy are not satisfied. Although there is an arraignment, the court trying the case had no actual jurisdiction because there is no offense in the first place. The complaint or information is also defective and not sufficient in form and substance. As such, there is no prejudice and the prosecution can simply re-file the information. The elements of double jeopardy are (1) the complaint or information was sufficient in form and substance to sustain a conviction; (2) the court had jurisdiction; (3) the accused had been arraigned and had pleaded; and (4) the accused was convicted or acquitted or the case was dismissed without his express consent

Quashal of information after arraignment on the ground of double jeopardy. Obviously, double jeopardy applies. The existence of the first jeopardy bars the second.

Quashal of information after arraignment on the ground of prescription of criminal liability or criminal action. Will double jeopardy apply? Of course not. There is no first jeopardy. The filing of the action is not because of double jeopardy but because there is no crime or liability to speak of anymore. It has been extinguished by operation of law.

XVII

Delay in the Arraignment Violates the Right to Speedy Trial VEXATIOUS, OPPRESSIVE, AND CAPRICIOUS DELAYS in the arraignment violates the constitutional right to speedy trial and speedy disposition of the case, particularly when the accused is detained. Remedy of the accused Sec. 9 of Rule 119, Remedy where accused is not brought to trial within the time limit If the accused is not brought to trial within the time limit required by section 1(g), Rule 116 and section 1, as extended by section 6 of this rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this Rule. The dismissal shall be subject to the rules on double jeopardy. FAILURE OF THE ACCUSED TO MOVE FOR DISMISSAL PRIOR TO TRIAL SHALL CONSTITUTE A WAIVER OF THE RIGHT TO DISMISS UNDER THIS SECTION. Section 10 of Rule 119. Law on speedy trial not a bar to provision on speedy trial in the Constitution No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 14(2), Article III of the Constitution. Late arraignment; when allowed? It has been held that arraignment may still be made after the prosecution has rested its case. As long as the accused had been given the opportunity to be heard, such arraignment after trial is valid. The opportunity to be heard has cured the defect. (jurisprudence)

XVIII Remedy of Motion for Bill of Particulars available in case of deficient pleadings

Sec. 9 of Rule 116 The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complainant or information and the details desired.

XIX

In pre-trial in criminal cases, one may avail of the remedy of MOTION WITH LEAVE OF COURT TO AMEND PRE-TRIAL ORDER Ground: to prevent manifest injustice (sec. 4, Rule 118)

XX

The remedy of Demurrer to Evidence The rules on demurrer to evidence in criminal cases based on insufficiency of evidence are provided under Sec. 23 of Rule 119. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within the non-extendible period of five days after the prosecution rests its case.

The prosecution may oppose the motion within a non-extendible period of five days from its receipt.

IF LEAVE OF COURT IS GRANTED, THE ACCUSED SHALL FILE THE DEMURRER TO EVIDENCE WITHIN A NON-EXTENDIBLE PERIOD OF 10 DAYS FROM NOTICE. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.