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Criminal Procedure Notes based on Riano

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2.

Prosecution of Criminal Action:


Under the supervision of the PUBLIC PROSECUTOR
Direct supervision
Control

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2.
3.

When PRIVATE PROSECUTOR intervenes


Allowed ONLY where the civil action is INSTITUTED in the criminal action
Remember that civil actions are deemed instituted
If the offended party
Waives
Reserves
Institutes civil action prior to the criminal action
The PRIVATE PROSECUTOR CANNOT INTERVENE!

Exception on the involvement of the private prosecutor:


If he is authorized to do so in writing
He may prosecute up to the end of the trial
Provided, the authorization shall be given by either the Chief of the
Prosecution Office or the Regional State Prosecutor
AND, must be approved by the court
HOWEVER, it may be revoked or withdrawn by the public prosecutor any
time
Since prosecution is under the control and supervision of the PUBLIC
PROSECUTOR, it follows that the SC CANNOT compel the former to file and
information, or prosecute a person if he believes that there is no probable cause
in doing the same!
Exception: grave abuse of discretion on the public prosecutor
Hierarchy:
DOJ ------ SEC of Justice ------- PROSECUTORS

Criminal action in MTC or MCTC prosecuted under the public prosecutor


If public prosecutor is absent or not available, may be prosecuted by:
1.
Offended party
2.
Any peace officer
3.
Public officer charged with the enforcement of the law violated
III PROSECUTION OF PRIVATE CRIMES
What are these crimes?
1.
Adultery
2.
Concubinage
NOTE: these crimes shall not be prosecuted except upon a complaint filed by
the offended spouse

RULE: PROSECUTOR CANNOT PROSECUTE THE CASE WHERE NO


COMPLAINT IS FILED BY THE OFFENDED SPOUSE
Cannot be instituted against one party alone! AGAINST BOTH GUILTY
PARTIES!
Cases where it cannot be prosecuted
If the offended party has consented to the offense or has pardoned the
offenders (express/implied)
3. Seduction
3. Abduction
3. Acts of lasciviousness

1.
2.
3.
4.

SAME RULE: cannot be prosecuted except upon a complaint filed by the:


Offended party even if minor, still has the right to initiate
Parents
Grandparents or legal guardian
State
6. Defamation
-- should be the imputation of the offenses of adultery, concubinage,
seduction, abduction, and acts of lasciviousness
SIMILAR RULE: filed by the offended party
V COMPLAINT OR INFORMATION

Complaint, defined.
Sworn written statement
Charging a person with an offense
Subscribed by the offended party, any peace officer, or other public officer
Name: People of the Philippines
Private offended parties only as witnesses
Thus they may not appeal the dismissal of a criminal case or the acquittal
ONLY the civil aspect
In so doing, the private offended party who appeals must prosecute in his
own personal capacity
So how then can a dismissal or acquittal of the criminal case be
appealed?
CAN ONLY BE APPEALED BY THE OSG
Reason: private offended party has no legal personality to do so
Chapter12, Title III, Book IV of the Admin. Code
Only the OSG can bring and/or defend actions on behalf of the Republic or
represent the people or the State in criminal proceedings pending in the
Supreme Court and the CA

Information, defined.

1.
2.
3.

b.
c.
d.

Accusation in writing
Not required to be sworn; because the prosecutor is under the oath of his office
Charging a person with an offense
Subscribed by the prosecutor
And filed with the court
Name: People of the Phils
What happens if there is infirmity of the signature in the information?
The information confers jurisdiction on the court, thus if there is infirmity
invalid
An infirmity in the information, such as lack of authority of the officer
signing it, cannot be cured by silence, acquiescence, or even by express consent
The complaint or information should include the ff (sufficiency test):
Name all of the accused
Designation of the offense given by the statute
Acts/omissions complained of - should be described with such
particularity as to appraise the accused, with reasonable certainty, of the
offense charged
1. Offense being charged
2. Acts or omissions complained of
3. Qualifying and aggravating circumstances
Name of the offended party
Approximate date of the commission unless material element/ingredient of
the crime
Place where the offense was committed
Purpose: TO ENABLE THE ACCUSED TO SUITABLE PREPARE FOR HIS DEFENSE,
SINCE HE IS PRESUMED TO HAVE NO INDEPENDENT KNOWLEDGE OF THE FACTS
THAT CONSTITUTE THE OFFENSE!
Note: sufficiency of information is not negated by an incomplete or defective
designation of the crime. Failure to specify the correct crime committed will not
bar conviction of the accused.
Question: When is the right time to question the sufficiency or validity of the
information or complaint?
Answer: before arraignment or during trial, otherwise, deemed waived.
Actions: 1) bill of particulars; 2) quashal of the information
Question: What should be given preference, the designation of the crime in the
information or the allegation of the facts?
Answer: The allegation of facts is controlling because the nature and
character of the crime charged are determined not by the designation of the

specific crime, but by the facts alleged in the information. So even if the
information is defective, the allegation of facts must be preferred over the
defective information. Allegation in the information, not the technical name
given by the prosecutor.
Question: What happens if there is a mistake on the name of the accused?
Answer: A mistake in the name of the accused is not equivalent, and does not
necessarily amount to, a mistake in the identity of the accused especially when
sufficient evidence is adduced to show that the accused is pointed to as one of
the perpetrators of the crime. However, the identity must be proven.
In offenses against property it is enough that the property is described with
such particularity as to properly identify the offense charged.

Statement of the qualifying and aggravating circumstances:


Needed since without it, the accused cannot be convicted of
qualifying or aggravating circumstance even if proven in court
Even if an aggravating circumstance had been proven, but was not
alleged, courts will not award exemplary damages!
Reason: tantamount to denial of due process since the accused is
deprived to be informed of the charges against him!
How about mitigating? no need. The accused may be convicted with
mitigating circumstances, since the nature of it is in favor of the accused
VI. VENUE OF CRIMINAL ACTIONS
Criminal action shall be instituted and tried in the court of the municipality or
territory:
a. Where the offense was committed
b. Where any of its essential ingredients occurred

VII. AMENDMENT OR SUBSTITUTION OF THE COMPLAINT


INFORMATION
Before plea or arraignment leave of court not required
Without leave of court
Any formal or substantial amendment may be made
After plea or arraignment
Amendment is prohibited
Except if beneficial to the accused
Before plea or arraignment leave of court required where:
The amendment downgrades the nature of the offense charged;
The amendment excludes any accused
Formal Amendment, defined.

OR

New allegations which relate only to the range of the penalty


Which does not charge another offense different or distinct from that
charged in the original one
Additional allegations which do not alter the prosecutions theory
Does not adversely affect any substantial right
An amendment that merely adds specifications to eliminate vagueness in
the information
Not to introduce new and material facts
Merely states with additional precision something which is already
contained in the original information
Adds nothing essential for conviction
Facts of a case: prosecutor entered his amendment by crossing out the word
Homicide and instead wrote the word Murder
Issue: Is it a formal or substantial amendment?
Ruling: Only a formal amendment. The only change made was in the caption of
the case; and in the opening paragraph or preamble of the Information, with the
crossing out of word Homicide and its replacement by the Murder. There was no
change in the recital of facts constituting the offense charged or in the
determination of the jurisdiction of the court. The averments in the amended
Information for murder are exactly the same as those already alleged in the
original information for homicide, as there was not at all any change in the
act imputed to the accused. In allowing formal amendments in which the
accused has already pleaded, it is necessary that the amendments do not
prejudice the rights of the accused.

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2.

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2.
3.

Test whether the rights of the accused are prejudiced by the amendment of a
complaint or information is:
whether a defense under the complaint or information, as it originally
stood, would no longer be available after the amendment is made; and
When any evidence the accused might have would be inapplicable to
the complaint or information.
Since the facts alleged in the accusatory portion of the amended information
are
identical with those of the original information for homicide,
there could not be any effect on the prosecutions theory of the
case;
neither would there be any possible prejudice to the rights or
defense of petitioner.
SUBSTITUTION OF COMPLAINT OR INFORMATION
if it appears at any time before judgment that a mistake has been made
in charging the proper offense
if it becomes manifest that the accused cannot be convicted of the
offense charges or of any other offense necessarily included therein, the court

shall commit the accused to answer for the proper offense by requiring the filing
of the proper information.
Accused shall not be discharged if there appears good cause to detain
him. After the proper information is filed, it shall dismiss the original case
in such a case, the court shall dismiss the original complaint or
information once the new one charging the proper offense is filed
provided, accused will not be placed in double jeopardy
may be made before or after arraignment
Substitution, distinguished/defined
substantial change
with leave of court as the original information has to be dismissed
requires another preliminary investigation and the accused has to plead
anew to the new information filed
new information involves a different offense which does not include or is
not necessarily included in the original charge, hence, accused cannot claim
double jeopardy!
Amended information entails:
formal or substantial amendment
before plea can be without leave of court, etc
only to form no need for preliminary investigation
amendment of the same offense charged hence, substantial
amendments to the information after the plea has been taken cannot be made
over the objection of the accused, for if the original information would be
withdrawn, the accused could invoke double jeopardy!
CHAPTER III PROSECUTION OF CIVIL ACTION
when criminal action is instituted, the civil action is deemed included
every person criminally liable for felony is also civilly liable
the rule on implied institution of the civil action does not apply before
the filing of the criminal action or information --- when there is no criminal
case yet against the respondents as when the Ombudsman is still in the process
of finding probable cause to prosecute the respondent
Civil liability arising from the crime the governing law is rules of Criminal
Procedure not rules of civil procedure!
Exception: civil action other than the one arising from the crime is not
suspended by the commencement of the criminal action because they may
proceed independently of the criminal proceedings.
Reservation of the civil action should be made before the prosecution starts
presenting its evidence!

Note: after the criminal action is commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in
the criminal action!
Preference is given to the resolution of the criminal action

If the civil action was commenced before the institution of the


criminal action, the civil action shall be suspended in whatever stage it may
be found before judgment on the merits, once the criminal action is filed. The
suspension shall last until final judgment is rendered in the criminal action
Exception: does not apply to independent civil action since they are
distinct and separate from the civil action arising from the offense committed
Another exception: prejudicial question
RULE on counterclaims, etc:
NO COUNTERCLAIM, CROSS-CLAIM, THIRD-PARTY CLAIM IN A CRIMINAL
CASE may be filed by the accused in the criminal case but any cause of action
which could have been the subject may be litigated in a separate civil action.
Note that a criminal case is not the proper proceedings to determine the
private complainants civil liability.
A court trying a criminal case is limited to determining the guilt of the accused,
and if proper, to determine his civil liability those arising only from offense.

CAUSE OF DEATH of the accused:


If the accused dies after arraignment and during the pendency of the
criminal action
the civil liability arising from the crime extinguished (but this does not
preclude the offended party from filing a separate civil action based on other
sources of obligation may be continued)
Dies before arraignment case dismissed but the offended party may
file the proper civil action
Death prior to final judgment terminates criminal liability and only
civil liability directly arising from and based solely on the offense committed
(again, does not bar for filing a separate civil action on other sources of
obligation)
Death during pendency of his appeal with SC totally extinguished
the criminal and civil action based solely on the crime. Reason: no final
judgment of conviction was yet rendered by the time of his death.
Novation of contract: extinguishment of criminal liability
Criminal liability is not affected by a compromise or novation of contract
It may affect the civil liability but not the criminal aspect since it is a public
offense which must be prosecuted and punished by the government.
EFFECT OF ACQUITTAL OR EXTINCTION OF THE PENAL ACTION ON THE
CIVIL ACTION OR CIVIL LIABILITY
Degree of evidence: mere preponderance of evidence
Note: extinction of the penal action does not carry with it the extinction of
the civil action where:
a. Acquittal is based on reasonable doubt
b. Court declares that the liability is only civil

c. Civil liability does not arise from or is not based upon the crime of which
he was acquitted
However, extinction of the civil action based on delict deemed
extinguished
Provided, there is a fining in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist!
Note: when the trial court acquits or dismisses the case on the ground of lack of
evidence to prove guilt beyond reasonable doubt, the civil action is not
automatically extinguished since liability on civil action can be determined
based on mere preponderance of evidence!
Hence, there is a requirement to state whether the prosecution absolutely failed
to prove his guilt or merely failed to prove beyond reasonable doubt in either
case it shall determine if the act or omission from which the civil liability might
arise did not exist
Example: may be acquitted but if his negligence is proved by mere
preponderance of evidence, he may still be civilly liable
Elementary rule: payment of civil liability does not extinguish criminal liability

PREJUDICIAL QUESTION, defined


Previously instituted civil action
issued involved in a civil case
which is similar or intimately related to the issue raised in the criminal
case
resolution of which
determines whether or not the criminal action may proceed
civil action instituted previously or ahead of the criminal action; must
precede the criminal action
civil action requires a decision before a final judgment can be rendered in
the criminal action
proceedings in the second case may be suspended to await the resolution
of the prejudicial question in the first case
existence of two actions civil action and criminal action
the issue in the civil case needs to be resolved first before it is determined
whether or not the criminal case should proceed or whether or not there should
be, in the criminal case, a judgment of acquittal or conviction
the issue raised in the civil action is determinative of the guilt of the
accused in the criminal aspect
the issue in the civil case is determinative of the issue in the criminal
case; the resolution of such issue determines whether or not the criminal action
may proceed
it follows that if the resolution of the issue in the civil action will not
determine the criminal responsibility of the accused in the criminal action based
on the same facts, the civil case does not involve a prejudicial question. Neither
is there a prejudicial question if the civil and the criminal action can proceed

independently of each other, that is, the criminal action can proceed without
waiting for the resolution of the issues in the civil case
Reason: to avoid two conflicting decisions
REQUISITES:
1.
civil case involves facts intimately related to those upon which the
criminal prosecution would be based;
2.
in the resolution of the issues raised in the civil case, the guilt or
innocence of the accused would necessarily be determined
3.
jurisdiction to try said questions must be lodged in another tribunal
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2.
3.
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5.
6.
1.
2.

3.
4.

1.
2.
3.
4.
5.

Not a prejudicial question if:


both cases are criminal
both civil
both cases are administrative
one case is administrative and other civil
one case is administrative and other criminal
criminal case was instituted prior to the civil case!
Effect of the prejudicial question:
suspension for the criminal action may be filed
the criminal case may be suspended pending the final determination of
the issues in the civil case this is the exception on the general rule that if the
civil action was commenced before the institution of the criminal action, the civil
action shall be suspended in whatever stage it may be found before judgment
on the merits, once the criminal action is commenced the suspension shall last
until final judgment is rendered in the criminal action
accords a civil case a preferential treatment and constitutes an exception
to the general rule that the civil action shall be suspended when the criminal
action is instituted
however, suspension does not include dismissal therefore, double
jeopardy cannot be invoke
Where and when to file the petition for suspension
does not need to wait for the criminal case to be filed in court, it is
sufficient that there be previously instituted civil case it may be filed in the
stage of preliminary investigation
the petition for suspension should be filed in the criminal case not in the
civil case since what is
suspended is the criminal case right?? Lol
where? in the office of the prosecutor conducting the preliminary
investigation
any time before the prosecution rests
Case illustrations:

Preliminary Investigation

Preliminary Examination

by the prosecutor

by the judge

purpose: whether the accused should


be held for trial or if he should be
released
Nature: executive, since it is part of
the prosecutors job

purpose: to determine probable


cause for the issuance of a
warrant of arrest
Nature: judicial

Irregularity of arrest
(not in accordance with
Rule 113, Sec5(a)&(b)
Inquest proceeding shall
not proceed
Release of the detainee
*if the evidence warrants
preliminary investigation,
the prosecutor may serve
notice to the detainee

Proper arrest
Inquest shall proceed
Detainee may ask for bail (?)
Prosecutor should ask the detainee if he wants to
avail
preliminary
investigation
(remember:
purpose of preliminary investigation is to
determine the probability of guilt of the accused,
and whether he should be held for trial

Case
(People
v.
Aminnudi
n)

Facts
More than two days before the
arrest, the officers received a
tip that the accused was on
board an identified vessel and
carrying marijuana; acting on
the information they waited for
the accused and approached
him as he descended the ship
and arrested him.

(People
v.
Molina)

The accused were arrested


while inside a pedicab despite
the absence of any outward
indications of a crime being
committed.

(Malacat
v. CA).

People
v.
Mengot
e.

There was a telephone call from


an
alleged
informer
that
suspicious looking men were at
a street corner. The operatives
dispatched to the place, they
saw three men who was looking
from side to side clutching his
abdomen.
The
operatives
approached
the
men
and
introduce
themselves
as
policemen. Two of them tried to
run away but the attempt was
foiled. The search yielded a
revolver in the possession of
Mengote and a fan knife in the
pocket of another.

Ruling
marijuana is inadmissible since
it was not incident to a lawful
arrest. The accused was not, at
the moment of his arrest,
committing a crime nor was it
shown that he was about to do
so or that he had just done so.
He was just descending the
ship; no outward indication that
called for his arrest. To all
appearances, he was like any
other passengers innocently
disembarking from the vessel.
The officers could have obtained
a warrant since they had
reasonable time to apply
Invalid arrest made merely on
the basis of reliable information
that the persons arrested were
carrying marijuana
A warrantless arrest cannot be
justified where no crime is being
committed at the time of the
arrest because no crime may be
inferred from the fact that the
eyes of the person arrested
were moving fast and looking at
every person passing by
The
requirements
of
a
warrantless arrest were not
complied with. There was no
offense which could have been
suggested by the acts of
Mengote of looking from side to
side while holding his abdomen.
These are obviously not sinister
acts. He was not skulking in the
shadows but walking in the
clear light of day. By no stretch
of the imagination could it have
been inferred from these acts
that an offense had just been
committed, or was at least
being
attempted
in
their
presence.

People v
Laguio.

Two men who were arrested


told the officers that they knew
of a scheduled delivery of
shabu by their employer WW.
The
police
operatives
proceeded to the place and
found WW who came out of the
apartment towards a parked
car, the officers approached
him, introduced themselves and
upon hearing that he was WW,
immediately he frisked him and
asked him to open the back
compartment of the car. When
frisked, an unlicensed pistol
with live ammunitions was
found inside his pocket. The
operatives searched the car and
found shabu, unlicensed pistol,
etc

the facts and circumstances did


not manifest any suspicious
behavior on the part of WW that
would reasonably invite the
attention of the police. He was
merely
walking
from
the
apartment and was about to
enter a parked car when the
police operatives arrested him,
frisked and searched his person
and commanded him to open
the compartment of the car. He
was not committing any visible
offense then. Therefore, there
can be no valid warrantless
arrest in flagrante delicto. It is
settled that reliable information
alone, absent any overt act
indicative
of
a
felonious
enterprise in the presence and
within the view of the arresting
officers, is not sufficient to
constitute probable cause that
would justify an in flagrante
delicto arrest.

Case
People
v. Anita
Claudio

Facts
The accused was carrying a
woven buri-like plastic bag
which appeared to contain
camote tops, boarded a bus.
Overt act: instead of placing
the bag by her side, which is the
usual practice of a traveler, she
placed the same on the back
seat where a trained antinarcotics agent was seated.
Since the act of the accused was
unusual, the suspicion of the
agent was aroused. Feeling that
something was unusual, the
agent inserted his finger inside
the bag where he felt another
plastic bag in the bottom from
which emanated the smell of
marijuana. Right after she got
off the bus, the agent arrested

Ruling

People
v.
Tanglib
en.

People
v
Maspil

Case

the accused.
Two police officers together with
a
barangay
tanod
were
conducting
surveillance
operations in a bus station to
check on persons who may be
engaging in the traffic of
dangerous drugs based on
information
supplied
by
informers.
They
noticed
a
person carrying a red travelling
bag who was acting suspiciously.
When asked to open the bag,
the accused did so only after the
officers identified themselves.
Found
in
the
bag
were
marijuana leaves.
Because of confidential reports
from informers that two persons
would be transporting a large
quantity of marijuana, officers
set up a checkpoint to
monitor, inspect, and scrutinize
vehicles. A couple of hours after
midnight, a jeepney was flagged
down in the checkpoint. On
board
were
the
persons
identified by the informers who
were also with the policemen
manning the checkpoint. When
the sacks and tin cans were
opened,
they
contained
marijuana leaves

Facts

there was a valid warrantless


arrest and a valid warrantless
search, since the officers were
faced by an on-the-spot
information
which
required
them to act swiftly.

Again, the Court distinguish


Maspil from Aminnudin. In
Aminnudin, the officers were
aware of the identity of the
accused, his planned criminal
enterprise and the vessel he
would be taking, and the
officers had sufficient time to
obtain a search warrant. In
Maspil, the officers had no exact
description of the vehicle of the
accused, and no idea of the
definite time of its arrival. A
jeepney on the road is not the
same as a passenger boat the
route and time of arrival of
which are more or less certain
and which ordinarily cannot
deviate or alter its course or
select another destination.

Judgment

Abelita
III
v.
Doria
WHAT:
shootin
g
incident

People
v Acol.

People
v
Gerent
e.

1.

A team was dispatched to


investigate.
The
investigation
disclosed that a victim was
wounded and that the witness
tagged the petitioner as the one
involved and that he had just left
the scene of the crime. After
tracking down the petitioner, he
was
invited
to
the
police
headquarters but the petitioner
sped off.
Two
robbers
divested
the
passengers of a jeepney of their
belongings including the jacket of
one passenger. The passengers
immediately sought the help of
police officers which formed a
team to track down the suspects.
One of the passengers, who went
with the police officers, saw one of
the robbers casually walking in the
same vicinity and wearing his
jacket.
The police station received a
report of a mauling incident, right
away the officers went to the
crime scene and found a piece of
wood with blood stains, a hollow
block
and
two
pouches
of
marijuana. A witness told the
police that the accused was one of
those who killed the victim. They
proceeded to the house of the
accused and arrested him.

The petitioners act of trying to


get away, coupled with the
incident report which they
investigated, is enough to
raise a reasonable suspicion
on the part of the police
authorities.

The warrantless arrest of the


accused was sustained by the
Court as well within the hot
pursuit exception.

based
on
their
knowledge
of
the
circumstances of the death of
the victim and the report of an
eyewitness, in arresting the
accused, the officers had
personal knowledge of facts
leading them to believe that it
was the accused who was one
of the perpetrators of the
crime.

Private respondent filed an action for frustrated parricide, then several


months after, she filed another action for the declaration of the nullity of their
marriage. The petitioner filed an urgent motion to suspend the proceedings.
Ruling: no prejudicial question since the criminal action was first filed before the
civil case. For a prejudicial question to exist, the civil action must be instituted
first before the filing of the criminal action. Moreover, the issue in the annulment
of marriage is not similar or intimately related to the issue in the criminal case
for parricide.

2.

Respondent contracted his first marriage. Without said marriage having


been annulled, nullified, or terminated, the same respondent contracted a
second marriage with the petitioner. Based on petitioners complaint-affidavit,
information for bigamy was filed against respondent. Sometime thereafter,
respondent initiated a civil action for the judicial declaration of absolute nullity
of his first marriage. Respondent then filed a motion to suspend the proceedings
in the criminal case for bigamy. Issue: whether the subsequent filing of a civil
action for declaration of nullity of a previous marriage constitutes a prejudicial
question to a criminal case for bigamy. Ruling: the civil action for declaration of
the nullity of the marriage was not determinative of the issue in the bigamy
case, the Court placed emphasis on Art40 of the Family Code which requires a
prior judicial declaration of nullity of a previous marriage before a party may
remarry. Without it, the first marriage is presumed to be subsisting. Thus, any
decision in the civil action for nullity would not erase the fact that respondent
entered into a second marriage during the subsistence of a first marriage.
Therefore, a decision in the civil case was not essential to the determination of
the criminal charge not a prejudicial question.

CHAPTER IV PRELIMINARY INVESTIGATION

Is the respondent probably guilty and therefore, should go to


trial?
Nature: INQUIRY PROCEEDING / Judicial Proceeding
Purpose: TO DETERMINE whether there is SUFFICIENT GROUND to engender a
well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial
Function: executive not a judicial function
The only means of discovering the persons who may be
reasonably charged with a crime
To enable the fiscal to prepare his complaint or information
Lasts for 10 days
Not a trial nor a part of it
Does not involve the examination of witnesses
The purpose is not to declare the respondent guilty beyond reasonable
doubt
Does not require confrontation between the parties
Conducted through submission of affidavits and supporting documents,
and through exchange of pleadings

To determine:
Whether a crime has been committed
Whether the respondent is probably guilty thereof
Prosecutors duties:
1.
To determine the existence of probable case
2.
To file information
1.
2.

What is probable cause in preliminary investigation?


Implies probability of guilt

Requires more than bare suspicion


The prosecutor does not:
determine the guilt or innocence
exercise adjudication nor rule-making functions
Ultimate purpose:
to secure the innocent against hasty, malicious and oppressive
prosecution
to protect him from an open and public accusation of a crime
to protect the State from useless and expensive prosecution
designed to free a respondent from the inconvenience, expense, stress of
defending himself/herself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary
proceeding
Is the prosecutor a quasi-judicial officer?
No. A preliminary investigation is not a trial of the case on the merits, and has
no purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a
quasi-court, for it is the courts, ultimately, that pass judgment on the
accused, not the fiscal.
Is the substantial right of the accused to a preliminary investigation
waivable?
Yes. It is deemed waived for failure to invoke the right prior to or at the time of
the plea/arraignment.

PROBABLE CAUSE , defined.


existence of facts and circumstances
as would lead a person of ordinary caution to entertain an honest and
strong suspicion
that the accused is guilty of the crime subject of the investigation
based only on opinion and reasonable belief
implies probability of guilt
Requires:
requires more than bare suspicion
but less evidence
elements of the crime charged should be present since every crime is
defined by its elements, without which there should be no criminal
It does not
does not import absolute certainty
need not be based on clear and convincing evidence of guilt

does not pronounce guilt (only the probability of guilt which would lead
the accused to stand trial)
require a full and exhaustive presentation of the parties evidence
Discretion:
The determination lies within the discretion of the prosecuting officers
after conducting a preliminary investigation.
Merely binds over the suspects to stand trial

1.
2.

Kinds of determination of probable cause


Judicial made by judge
Executive made by the prosecutor during preliminary investigation

When required?
Preliminary investigation is required in a criminal offense has a penalty of at
least 4yrs, 2months, and 1 day.
1.
2.

Procedures for cases not requiring preliminary investigation:


Directly submit with the prosecutor; or
By filing an information or complaint with the MTC conducted by the
judge
Application for bail:
while a preliminary investigation is undertaken, the person arrested is still
under detention
to effect release, he may apply for bail since he is not yet charged in court
After plea has been entered/after arraignment:
-deemed to have waived the absence of preliminary investigation

Remand to the prosecutor:


if the accused wants a preliminary investigation, the court will not dismiss,
BUT remand the case to the prosecutor so that investigation may be conducted
the Sandiganbayan will hold in abeyance any further proceedings

1.
2.

Lack/Irregularity of Preliminary investigation will not affect:


courts jurisdiction
validity of the information or render it ineffective

What is the effect of denial of a motion for reinvestigation?


cannot invalidate the information

INQUEST PROCEEDINGS

(summary investigation):

for persons detained


a person is lawfully arrested without a warrant
involving an offense which requires preliminary investigation

not a preliminary investigation; distinct


does not follow the procedure on preliminary investigation
CONDUCTED WHEN: (by the inquest officer/prosecutor)
a person has been lawfully arrested and detained
without warrant
WHERE:
police stations/headquarters of the PNP, unless otherwise directed (which
is why it is an informal and summary proceeding)
Deemed COMMENCED:
from the time the Inquest Officer receives the complaint and referral
documents
detained persons should be present during inquest proceedings
Purpose: to determine whether or not the person detained should remain
under custody and then charged in court ahh ok!!! Grrrr!!

- PN NOT REQUIRED even if offense requires preliminary investigation


Substitute INQUEST PROCEEDING?
1.
a person is arrested lawfully without a warrant
note: he may ask for a preliminary investigation*
note: inquest proceedings apply
2. in flagrante delicto
Reason: preliminary investigation is not required since the person is lawfully
arrested
Riano: if he has been arrested in a place where an inquest prosecutor is
available, an inquest will be conducted instead of a preliminary investigation.
Question: What is the use of inquest proceeding?
Question: Is an inquest a substitute of preliminary investigation?
Question: Is it needed in lieu of preliminary investigation?
Answer: an inquest proceeding shall normally apply when a person is
lawfully arrested without a warrant
*When may the person lawfully arrested without warrant ask for a
preliminary investigation?
- before the complaint/information is filed but he must sign a waiver under
Article 125 of the RPC (imposes a penalty on the officer)
- after filing, within 5 days from the time he learns of its filing

Duty of the Inquest Prosecutor:


to determine if the detained person has been arrested lawfully in
accordance with Rule 113, Sec 5 (a) and (b)
1. he may examine the arresting officers on the arrest
b. should it be found that it was not in accordance with Rule113, inquest
prosecutor shall not proceed with the inquest proceedings. And recommend
the release of the detainee
** see the table at the back/below
1.

Inquest must pertain to the offense for which the arrest was made
Case: Beltran v. People
Facts: Beltran was arrested without a warrant for inciting to sedition based on a
speech he gave. Second inquest was based on rebellion.
Ruling: Inquest proceedings are proper only when the accused has been
lawfully arrested without a warrant. The officers arrested Beltran for inciting to
sedition and not for rebellion, therefore the prosecutor could only have
conducted an inquest for inciting to sedition and no other! Second inquest
invalid

1.
2.
3.

1.
2.

STEPS ON PRELIMINARY INVESTIGATION:


*initial step: filing of the complaint with the prosecutor
(an affidavit of complaint)
Contains:
address of the respondent
affidavits of his witnesses
other supporting documents
the number of copies to be filed shall also the number of respondents
included plus 2 copies for official file
example: 2 respondents 2 copies + 2 official files = total4
Dismissal of the complaint: (made by the complainant)
from filing, prosecutor has 10 days to decide:
dismiss
issue subpoena to the respondent
Rights of the Respondent:
right to examine the evidence submitted
right to copy the evidence at his expense
objects shall be made available for examination, copying, or
photographing at the expense of the requesting party (may be respondent or
complainant)
Filing of counter-affidavit by respondent:
within 10days from receipt of subpoena, he is required to submit his
counter-affidavit with other documents
*reply-affidavit from complainant; rejoinder-affidavit from respondent

Effect of no counter-affidavit: ex parte investigation


prosecutor shall resolve the complaint based on the evidence presented
by the complainant
Respondent may be allowed to reopen the case to submit his counter-affidavit;
should be done before the prosecutor has issued a resolution; it should contain
an explanation for the failure to timely file the counter-affidavit
Clarificatory Hearing:
set by the prosecutor
to clarify facts and issues
no right to cross-examine
if the parties have questions to ask, it should be addressed to the
prosecutor, and the latter shall be the one to ask the questions to the party
concerned
lasts only for 5 days
dispensable
within the discretion of the prosecutor

1.
2.
3.
4.
5.

Resolution; final stage of preliminary investigation


If the prosecutor finds probable cause to hold the accused for trial, he shall
prepare:
resolution
*information (to be filed in court)
or dismissal
*the information shall contain a certification, in which he certifies:
he personally examined the complainant and witnesses
there is reasonable ground that a crime has been committed
accused is probably guilty
accused was informed of the complaint and evidence
he was given an opportunity to submit evidence

Effect of the absence of certification:


the information is still considered valid

1.
2.
3.

After resolution prosecutor shall forward the case to the provincial or


city prosecutor or chief state prosecutor or Ombudsman
Reason: there should be prior written authority or approval of the provincial,
city prosecutor, or chief state prosecutor or Ombudsman before an information
or complaint may be filed or dismissed by the prosecutor
*Resolution of the investigating prosecutor is not conclusive since it may be
reversed or affirmed by the prosecutors earlier cited

no complaint or information may be filed


or dismissed by an investigating prosecutor without the prior
Reiteration of the rule:

written authority or approval of the provincial or


prosecutor, or chief state prosecutor, or the Ombudsman

1.

city

When recommendation for dismissal is disapproved:


the Ombudsman may file the information or he may direct another
assistant prosecutor
Motion for Reconsideration
aggrieved party may file within 15 days from receipt of the resolution
Appeal
within 15 days from the denial of the MR
appeal to the Secretary of Justice
verified comment may be filed by the adverse party, 15 days from receipt
of appeal
if there is no verified comment, Secretary of Justice may resolve on the
basis of the petition
if there is probable cause, information may be filed in court
proceedings in court should be held in abeyance
aggrieved party may file a motion for suspension of arraignment; Rule
116, 11(c) arraignment shall be suspended if a petition for review of the
resolution of the prosecutor is pending
Secretary may dismiss outright
IF an information has been filed and accused has already been
arraigned before the filing of the appeal, the appeal shall not be given due
course
IF, accused has been arraigned after the filing of the petition, any
arraignment shall not bar the Secretary of Justice to review
Secretary of Justice has the power to affirm, modify, nullify, or
reverse the resolution made by his subordinates; has the ultimate power to
decide which conflicting theories of the parties should be believed; his finding
are not subject to review, except if tainted with grave abuse of discretion
(remedy of aggrieved party: petition for certiorari); his decision is final
Courts are not empowered to substitute their own judgment, only that of
the investigating prosecutor and ultimately that of the Secretary of Justice
General rule: Principle of non-interference leaves the investigating
prosecutor sufficient latitude of discretion
Exception: when there is grave abuse of discretion
Appeal to the Secretary of Justice
May be availed of despite the filing of information in court
Appeal to the Office of the President; administrative appeal
Appeal to the Court of Appeals; judicial appeal
Appeal to the Supreme Court
Duties of the Judge; upon filing of the complaint/information
Personally evaluate the resolution; look into its evidence

2.

Judge may find that evidence:


1. Fails to establish probable cause
(Judge may dismiss)
b.
Establishes probable cause
(Judge shall issue warrant of arrest)
(If lawfully arrested issue a commitment order)
c.
Engenders a doubt as to the existence of probable cause
(Order to submit additional evidence)
When warrant of arrest is not necessary:
Accused is under detention pursuant to a lawful warrantless arrest, and a
complaint or information has already been filed
2.
Offense is punishable by fine
3.
Case is subject to the Rules on Summary Procedure (inquest?)
1.

BAR Question: Whether the TRIAL COURT may refuse to grant the
motion filed by the Provincial Fiscal (upon instructions of the Sec of
Justice) and insist on the arraignment and trial on the merits.
Answer: YES, the court may deny the motion and require that the trial
on the merits proceed for the proper determination of the case. Once a
criminal complaint or information is filed in court, any disposition of the case or
dismissal or acquittal or conviction of the accused rests within the exclusive
jurisdiction of the trial court. The fiscal or even the Secretary of Justice cannot
impose his opinion on the trial court since it is the best and sole judge on what
to do with the case before it. The judge of the trial court is not bound to rely
solely on the resolution of the fiscal; he must make a personal evaluation of the
case, and satisfy himself that there is indeed a probable cause to issue a
warrant of arrest or a commitment order. Further, judge is required to positively
state that the evidence presented was insufficient for a prima facie case. It must
include the discussion of the merits and state the reasons for granting the
motion to withdraw.

Chapter V. ARREST, SEARCH, AND SEIZURE

How made
The taking of the person into custody
In order that he may be bound to answer for the offense
Need not be actually restrained
Sufficient: submission to the custody of the person
Control over the person
Restraint on his liberty
He is not free to leave on his own volition

Who will arrest?


Law enforcement officers are entrusted with the power to:
Conduct investigations
Make arrests

Perform searches and seizures of persons and their belongings


Must be exercised within the boundaries of the law

PROBABLE CAUSE on ARREST


1.
Personal knowledge by the arresting officer
2.
of facts and circumstances
3.
that the arrestee is indeed the perpetrator of the criminal act
QUESTION: What if the act of the officer does not amount to an arrest; will the
requirements on probable cause and personal knowledge stay?
ANSWER: No. It will not be pre-requisites to the legality of the said arrest.
REQUISITES FOR ISSUANCE OF A WARRANT OF ARREST; judges duties
(While on preliminary investigation, it was more on the prosecutors duty)

1.

it shall be issued upon finding of probable cause


otherwise, unreasonable, violates the constitutional right to privacy
of persons subject to such warrant
2. personally determined by the judge

case: AAA vs. Carbonell: judge is not required to personally examine


the complainant and her witnesses in satisfying himself of the existence of
probable cause; judge should have taken into consideration the documentary
evidence as well as the transcript of stenographic notes
Ruling: The judge committed grave abuse of discretion for dismissing the
criminal case on the ground that petitioner and her witnesses failed to comply
with his orders to take the witness stand.

Case: Soliven v. Makasiar this provision does not mandatorily require the
judge to personally examine the complainant and her witnesses. He may opt to:
1.
personally evaluate the report and supporting documents submitted by
the prosecutor; or
2.
disregard the prosecutors report and require the submission of supporting
affidavits of witnesses

but such personal examination is not mandatory and


indispensable in the determination of probable cause; the necessity
arises only when there is an utter failure of the evidence to show the
existence of probable cause; otherwise, the judge may rely on the
report of the investigating prosecutor
The Judge must:
satisfy himself of the existence of probable cause
not required to personally examine
judges merely determine the probability, not the certainty, of guilt of an
accused

personally review the initial determination of the prosecutor finding


probable cause to see if It is supported by substantial evidence
but such personal examination is not mandatory and indispensable in the
determination of probable cause; the necessity arises only when there is an
utter failure of the evidence to show the existence of probable cause; otherwise,
the judge may rely on the report of the investigating prosecutor

PROBABLE CAUSE (on WARRANT OF ARREST), defined


assumes the existence of facts
that would lead a reasonably discreet and prudent man to believe that a
crime has been committed or it was likely to be committed
by the person sought to be arrested

In determining probable cause:


average man weighs the facts and circumstances
without resorting to the standards of the rules of evidence
of which he has no technical knowledge
he relies on common sense
demands more than suspicion
requires less than evidence

Personal determination by the judge


in Carbonell case judge is not required to personally examine the
complainant and her witnesses; he may take into consideration the
documentary evidence, supporting affidavits
however, the Court found that the judges finding of lack of
probable cause was premised only on the complainants and her witnesses
absence during the hearing scheduled by the judge for the judicial
determination of the probable cause
therefore, absence of the complainant or the witnesses, or failure or
refusal to take the witness stand would not warrant the existing of probable
cause #lol #dontstatetheobviousclairy
SC found that the judge committed grave abuse of discretion for
dismissing the criminal case on the ground that petitioner and her witness failed
to comply with his orders to take the witness stand
Judge may disregard the fiscals report and require the submission of supporting
affidavits of witness to aid him in determining probable cause case: Soliven v
Makasiar
Judges just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by
substantial evidence
Personal examination not mandatory and indispensable;
When personal examination is required (literal)
Only when there is utter failure to show the existence of probable cause

Otherwise, judge may validly rely (not solely hence, evaluation of


documentary evidence) on the report of the prosecutor , provided that he
likewise evaluates the documentary evidence in support thereof
He should not rely solely on the report of the investigating prosecutor but
must also evaluate the documentary evidence and affidavits, and stenographic
notes
If the report, taken together with the supporting evidence, is sufficient to
sustain a finding of probable cause, it is not compulsory that a personal
examination of the complainant and his witnesses be conducted
Never allowed to follow blindly the prosecutor

1.
2.

When directly filed with the MTC


Judge shall personally evaluate the evidence; or
Personally examine in writing and under oath the complainant and his
witnesses in the form of searching questions and answers
Method of Arrest with a warrant
Warrant is issued by a judge
Delivered to the proper law enforcement officer for execution
Head of the office to whom the warrant of arrest was delivered shall cause
the warrant to be executed within 10 days from its receipt
Within 10 days after the expiration of the period, the officer to whom it
was assigned for execution shall make a report to the judge who issued the
warrant
In case of his failure to execute, he shall state the reasons for its nonexecution
Procedure of arrest by virtue of a warrant; the OFFICER SHALL:
Inform the person to be arrested of the cause of his arrest;
Inform him of the fact that a warrant has been issued

1.
2.
3.

The information need not be made when the person to be arrested:


Flees
Forcibly resists
Giving of the information will imperil the arrest

1.
2.
1.
2.
3.
4.
5.

NOTE: The officer need not have the warrant in his possession at the time
of the arrest. However, after the arrest, the warrant shall be shown to him as
soon as practicable, if the person arrested so requires.
The officer also has the duty to deliver the person arrested to the nearest police
station or jail without necessary delay.
1.
2.
3.
4.
5.

When the person to be arrested is INSIDE a BUILDING


The officer is authorized
To break into any building or enclosure
In case he is refused admittance
After announcing his authority and purpose
If necessary, he may break out from said place to liberate himself

LAWFUL WARRANTLESS ARREST*


in flagrante delicto in his presence, the person to be arrested, is
actually committing or is attempting to commit an offense
1. citizens arrest is allowed
b. hot pursuit an offense has just been committed, and he has probable
cause to believe based on personal knowledge of facts/circumstances that
the person to be arrested has committed it
c. escapee when the person to be arrested is a prisoner who has escaped
*the exception to the general rule that a warrant of arrest is required before an
arrest is made
1.

WHAT is CITIZENS ARREST?

a private person, may without a warrant, arrest a person when, in his


presence, the person to be arrested is in flagrante
Who may make the warrantless arrest?
1.
Peace officer
2.
Private person
3.
a bondsman

1.
2.

Requisites of in flagrante delicto


accused must perform an overt act
done in the presence or within the view of the arresting officer
mere suspicion and reliable information not justification for a
warrantless arrest!

CASES where warrantless arrest is upheld


The HOT PURSUIT exception
REQUIREMENTS:
1.
Offense has just been committed
2.
The person making the arrest has personal knowledge of facts
indicating that the person to be arrested has committed it
Note: a warrantless arrest made, one year after the offense was allegedly
committed is an illegal arrest!
Does not require the officers to personally witness the commission of the
offense; PERSONAL KNOWLEDGE must be based on PROBABLE CAUSE
actual belief or reasonable grounds of suspicion.
1.

Reasonable ground:
Based on actual facts
1. Supported by circumstances sufficiently strong in themselves to
create probable cause of guilt
2. Probable cause with good faith

Method of arrest WITHOUT a WARRANT


1.
Arrest by an officer; he shall inform:
1. Of his authority
2. Cause of his arrest

The info need not be given if:


a. If the person to be arrested is engaged in the commission of an offense
b. In the process of being pursued immediately after its commission
c. Escapes or flees
d. Forcibly resists before the officer could inform him
e. The information will imperil the arrest
Officer may:

Summon assistance

Break into a building or an enclosure or break out from it


2. Arrest by private person; he shall inform
a. His intention to arrest him
b. Cause of his arrest
*need not be given under the same conditions above
NOTE: the right to break into a building or an enclosure does not apply to private
person!!
TIME OF ARREST: any day; any time of the day or night

Rights of a person arrested:


a. Assisted by counsel at all times
Counsel must be independent and competent
b. Remain silent
c. To be informed of the above rights
d. To be visited by the immediate members
Custodial investigation in a form of an invitation to person who is
investigated in connection with the offense he is suspected to have committed

Effect of an ILLEGAL ARREST on JURISDICTION of the court


Legality of the arrest affects only the jurisdiction of the court over the
person
Waiver of an illegal warrantless arrest does not mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest.

Chapter XI JUDGMENT

Judgment, defined.
Adjudication by the court
That accused is guilty or not guilty
Imposition of the proper penalty
And civil liability

1.
2.
3.

Formal Requisites of Judgment:


Written in the official language
Personally and directly prepared an signed by the judge
Must contain clearly and distinctly
1. Statement of facts
2. Law
Jurisdictional requirements:
a. over the subject matter
b. territory
c. person of the accused
Contents of a judgment of CONVICTION
a. legal qualification
b. aggravating and mitigating circumstances
c. participation of the accused; principal, accomplice, accessory
d. penalty imposed
e. civil liability or damages

1.
ii.

Contents of a judgment of ACQUITTAL:


state whether the evidence of the prosecution:
1. absolutely failed to prove the guilt
2. merely failed to prove his guilt beyond reasonable doubt
determine if the act or omission from which the civil liability might arise did not
exist
Note: verdict of acquittal is immediately final!
Rule on duplicitous complaint or information; two or more offenses in
a single information or complaint 2-in-1
Remedy: MOTION TO QUASH (during arraignment)
Exception: when the law prescribes a single punishment for various
offenses
What happens if the accused fails to object before trial?
Waiver
May be convicted for as many offenses as are charged and proved, and
impose penalty for each offense!
Note: can no longer be raised on appeal
Judgment rendered by a judge who did not hear the case
Valid!
Valid even if he merely relied on the records of the case
especially where the evidence on record is sufficient to support its
conclusion
Variance doctrine; variance between allegation and proof
a. offense proved is different from the offense charged

b. offense charged is either included in the offense proved or necessarily


includes the offense proved
General rule: convicted only of the offense charged
Exception: variance doctrine; may be convicted of the:

offense proved which is included in the offense charged or of the offense


charged which is included in the offense proved

When an offense includes or is included in another


1.
essential elements or ingredients of the
constitute or form part the offense proved

offense

charged

Promulgation

of Judgment
by reading in the presence of the accused and any judge
for light offense in the presence of counsel or representative
may be promulgated by the clerk of court if the judge is absent or outside
the province or city
4.
if the accused is confined or detained in another province or city, may be
promulgated by the executive judge of the RTC having jurisdiction over the place
of confinement or detention
1.
2.
3.

Notice on the promulgation of judgment


given by the clerk of court personally to the accused or thru his bondsman
or warden and counsel
if tried in absentia served at his last known address

What if the accused fails to appear in the promulgation?


1.
Shall be made by recording the judgment in the criminal docket
2.
Serve him a copy at his last known address or thru his counsel
Judgment for conviction:

Accused fails to appear without just cause

He shall lose the remedies available against the judgment

Court shall order his arrest

Within 15 days from promulgation of judgment, accused may surrender


and file a motion for leave of court to avail the remedies
Modification of Judgment
1.
Upon motion of the accused
2.
Before the judgment becomes final or before appeal is perfected
When judgment becomes FINAL
a. After the lapse of the period for perfecting an appeal; or
b. When the sentence has been partially or totally satisfied or served
c. When the accused has waived his right to appeal

d. He has applied for probation

Entry of judgment
After judgment has become final, it shall be entered in accordance with
Section 8, Rule 120, Rules of Court

II NEW TRIAL OR RECONSIDERATION (conviction)


Who may file? Accused
When filed? any time before the judgment of conviction becomes final
The court may:
a. Grant a new trial or reconsideration
b. With the consent of the accused
c. Without waiting for the motion of the accused

1.
2.
3.
4.

Grounds for new trial


a. Errors of law
b. Irregularities prejudicial to the substantial rights
c. New and material evidence has been discovered*
Discovered after trial
accused could not have discovered and produced
Even with the exercise of reasonable diligence
And which if introduced would probably change the judgment
1. It must be material
2. Must affect the merits and produce a different result if
admitted
3. must concur

Grounds for reconsideration


errors of law
errors of fact
Form:
1.
in writing
2.
state the grounds
1. if based on new and material evidence it should be supported by
affidavits
Notice of the motion

given to the prosecutor


1.
2.

When hearing on the motion is required


when it calls for a resolution of a question of fact
EFFECT:
a. based on errors of law or irregularities
all the proceedings and evidence affected shall be
1. set aside; and

2. taken anew
the court may allow additional evidence
b. newly-discovered evidence
evidence already adduced shall stand
the newly-discovered evidence shall be taken together with the evidence
already in record
c. in all cases where it is granted
original judgment shall be set aside or vacated
new judgment shall be rendered

ii.
i.
ii.
i.
ii.

III APPEALS

Not a natural right


Merely a statutory privilege
May be exercised in the manner and in accordance with the provisions of
law

Once granted by law, its suppression is tantamount to a violation of due


process
Subject: judgment or final order

Who may appeal?


Any party
Exception: accused will be placed in double jeopardy

What if the accused appeals?


Waives his right against double jeopardy
Runs the risk of being sentenced to a penalty higher than that imposed by
the trial court

Who may institute proceedings before the CA or SC?


Only the OSG or Solicitor General (as appellate counsel)
He should be given the opportunity to be heard in behalf of the
People.
Case: appellate court failed to notify the Solicitor General of its resolution on a
petition filed by the accused and failed to require to file its comment effect:
deprivation of a fair opportunity to prosecute and prove its case
Rule: a petition for review should be filed by the Solicitor General who is solely
vested with the authority to represent the people

EFFECT OF APPEAL on CRIMINAL CASE:


Opens the entire case for review
Appellate court may correct errors; or
reverse the trial courts decision on grounds other than those that the
parties raised as errors

1.
2.
3.
1.
2.
3.

b.
1.
2.
i.

EFFECT of appeal on civil case:


in contrast with the criminal case
no error will be considered by the appellate court unless stated in the
assignment of errors, except when:
1. error affects the jurisdiction
2. affects the validity of the judgment appealed
3. closely related or dependent on an assigned error
4. plain error or a clerical error
Change of theory on appeal not allowed!
Rule: A PARTY CANNOT
change his theory on appeal
nor raise in the appellate court any question of law or of fact that was not
raised in the court below
or which was not within the issue raised in their pleading
WHERE and HOW to appeal?
a. RTC cases decided by MTC
Notice of appeal served to the RTC
filed with the court which rendered the judgment
serve a copy upon the adverse party (personal service)
No notice of appeal RTC imposed the reclusion perpetua; the CA will
automatically review the judgment
CA or SC cases decided by RTC
Judgment by the RTC in its original jurisdiction
1. Notice of appeal
Judgment by the RTC in its appellate jurisdiction
1. File a petition for review
b. SC cases decided by CA
Petition for review on certiorari

When appeal is to be taken


Within 15 days from promulgation of judgment
The period shall be suspended from the time a motion for new trial or
reconsideration is filed until overruled
May an appeal be withdrawn?
Yes. As long as the record has not been transmitted or forwarded to the
appellate court. When it is withdrawn judgment becomes final!
1.
Motion to withdraw is filed
2.
Filed before the RTC
EFFECT of appeal by any of several accused

Only binds those who appealed

Will not affect those who did not appeal

Except: judgment is favorable to others; this time it will bind the others
who did not appeal

Except: procedural consequences; the stay of execution will not benefit


those accused who failed to file on time
Appeal from the civil aspect
1.
2.

Shall not affect the criminal aspect


Within 15 days from promulgation of judgment
Period to apply for probation

Within 15 days from promulgation


Stay of execution

Upon perfection of the appeal

procedural consequences; the stay of execution will not benefit those


accused who failed to file on time
COURT OF APPEALS may dismiss:
1.
if the appellant fails to file within the time prescribed
1. except: appellant is represented by a counsel de oficio
b. if the appellant escapes
Ground for reversal of judgment or its modification
Rule: CA is mandated not to reverse or modify a judgment
Except: After examination of the record and evidence, it finds that there is an
error which injuriously affects the substantial rights of appellant
1.
2.

Rule if the opinion of the Supreme Court en banc is equally divided


It shall again be deliberated (re-deliberation)
If no decision is reached, judgment of conviction of the lower court shall
be reversed and the accused acquitted!

1.
2.
3.
4.
5.

IV PROVISIONAL REMEDIES IN CRIMINAL CASES


Remedies available in a civil action; since a civil action is deemed
instituted in the criminal case, it follows that provisional remedies are also
available, save in cases where the civil action is reserved, or waived, or
separately filed
To avail:
the criminal action must be one with a corresponding civil liability
the civil action must be one arising from the offense charged and which is
instituted in the said criminal action
IF, civil action has been waived, reserved, or instituted separately the
provisional remedy may not be availed of. Instead, it may be applied for in the
separate civil action
Who may avail? offended party
What are these provisional remedies?
Preliminary attachment
Preliminary injunction
Receivership
Replevin
Support pendente lite

When preliminary attachment is available


when the civil action is properly instituted in the criminal action
when the accused is about to abscond

when criminal action is based on claim for money or embezzlement or


misappropriation
when accused has concealed, removed, or disposed of his property, or is
about to do so
when the accused resides outside the Phils.
May be availed of without the need for a showing that the accused has
concealed, removed, or disposed of his property or is about to do so.