G.R. Nos. 211933 & 211960
April 15, 2015
Case Principle
When a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived by the State within the periods provided under the 2nd paragraph of Section 8, Rule 117 of the Rules of Criminal Procedure.
If the provisional dismissal is with the express consent of the accused, it cannot operate as acquittal since double jeopardy does not attach.
Facts
The Office of the City Prosecutor filed two Informations against petitioner for violation of RA 9165. The cases were raffled to the Regional Trial Court, presided by herein respondent Judge Elvira D.C. Panganiban. Court hearings were set for the subject cases. However, the prosecution’s principal witness PO2 Nelson Villas (PO2 Villas), one of the arresting officers, failed to attend said scheduled hearings, specifically on October 22, 2012 and October 25, 2012. Thus, during the May 16, 2013 hearing, respondent judge issued an Order provisionally dismissing the cases with the express consent of the accused-petitioner.
On June 5, 2013, PO2 Villas filed a Motion to Re-open the Case against petitioner. PO2 Villas explained that his failure to appear during the hearings of the cases was due to the untimely death of his father-in-law. He further averred that PO3 Rionaldo Sabulaan, one of the arresting officers, is no longer assigned at the Cubao Police Station and had been transferred at the Batasan Police Station since November 2012, thus, could not have received his subpoena which is directed at his former place of assignment.
Thereafter, respondent Judge granted the motion to re-open the case against petitioner and set the cases for continuation of hearing. Petitioner moved for reconsideration. She argued that the provisional dismissal of the criminal cases is considered an acquittal and PO2 Villas had no personality to file the motion to re-open the case. The motion for reconsideration was denied. Hence, this petition.
The Office of the Solicitor General, maintained that respondent judge committed no grave abuse of discretion in granting the motion to re-open the case. It argued that petitioner did not expressly object to the motion to revive the criminal cases.
Issues
- Whether or not the case the case can be revived if it was provisionally dismissed.
- Whether or not the revival of the case cannot be granted since it was PO2 Nillas who filed the same.
- Whether or not the provisional dismissal constitutes acquittal.
Held
First Issue
Yes. Section 8, Rule 117 of the Rules of Court provides that a case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. If a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived by the State within the periods provided under the 2nd paragraph of Section 8, Rule 117 of the Rules of Criminal Procedure. There is no violation of due process as long as the revival of a provisionally dismissed complaint was made within the time-bar provided under the law.
In this case, the case was provisionally dismissed with the express consent of the accused. Here, a perusal of the Order, dated May 16, 2013, stresses in no uncertain terms that the dismissal of the case was provisional, i.e., the case could be revived at some future time. If petitioner believed that the case against her should be dismissed with prejudice, she should not have agreed to a provisional dismissal. She should have moved for a dismissal with prejudice so that the court would have no alternative but to require the prosecution to present its evidence. There was nothing in the records showing the accused’s opposition to the provisional dismissal nor was there any after the Order of provisional dismissal was issued. She cannot claim now that the dismissal was with prejudice.
Hence, the case can be revived as it was provisionally dismissed.
Second Issue
No. Generally, the prosecutor should have been the one who filed the motion to revive because it is the prosecutor who controls the trial. But in this particular case, the defect, if there was any, was cured when the public prosecutor later actively participated in the denial of the accused’s motion for reconsideration when she filed her Comment/Objection thereto.
Moreover, the accused is charged with a public crime, hence, it is a victim-less crime. Unlike in private crimes where the participation of the private offended party is generally required for the recovery of civil liability, in the instant case, there is no particular private offended party who can actually file the motion to revive. Hence, in some instances, as in this case, it is the arresting officer, PO2 Villas, who filed the motion to revive the case out of his sense of duty as a police officer and compelled by his sense of obligation considering that he knew his absence was the cause why the complaint was provisionally dismissed.
In addition, the arresting officers in drug-related cases are usually required to explain by their superiors when a case is provisionally dismissed due to their failure to appear during trial. Thus, in order to exonerate themselves from a possible administrative and criminal liability, the arresting officers would then opt instead to file the motion to revive on their own.
Third Issue
No. The provisional dismissal of the case does not operate as an acquittal since its dismissal was made with the express consent of the accused, thus, there is no double jeopardy.
As a general rule, the following requisites must be present for double jeopardy to attach: (1) a valid indictment, (2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without his express consent. However, there are two (2) exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the case was with the consent of the accused: first, when there is insufficiency of evidence to support the charge against him; and second, where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to speedy trial.
In the instant case, while the first four requisites are present, the last requisite is lacking, considering that here the dismissal was merely provisional and it was done with the express consent of the accused-petitioner. Neither does the case fall under any of the aforementioned exceptions under requisite 5 because, in fact, the prosecution had failed to continue the presentation of evidence due to the absence of the witnesses, thus, the fact of insufficiency of evidence cannot be established. Likewise, we find no unreasonable delay in the proceedings that would be tantamount to violation of the accused’s right to speedy trial. The delay in the proceedings, which ran from October 25, 2012 until the provisional dismissal of the case on May 13, 2013, is not the kind of delay contemplated under the law as to violate the accused’s right to speedy trial.
Ruling
Petition is denied. The case was remanded to the lower court for further proceedings.