Rule 117 Section 7

Section 7. Former conviction or acquittal; double jeopardy. - When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his
express consent by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case
shall be a bar to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.

However, the conviction of the accused shall not be a bar to another prosecution for an offense
which necessarily includes the offense charged in the former complaint or information under any
of the following instances: (a) the graver offense developed due to supervening facts arising from
the same act or omission constituting the former charge; (b) the facts constituting the graver
charge became known or were discovered only after a plea was entered in the former complaint
or information; or (c) the plea of guilty to the lesser offense was made without the consent of the
prosecutor and of the offended party except as provided in section 1(f) of Rule 116. In any of the
foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be
credited with the same in the event of conviction for the graver offense.

Explanation on Rule117 Section 7, 8 and 9 ( See Power point Presentation)

1. Rule 117 Section 7 was emphasized pursuant to Sec. 21, Art. Ill of the Constitution of the
Philippines, it states that "No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law or an ordinance, conviction or acquittal under either shall constitute a bar
to another prosecution for the same act."

2. Jeopardy is the peril in which a person is placed when he is regularly charged with a crime before a
tribunal properly organized and competent to try him. The constitution does not prohibit placing a
person in jeopardy. What it prohibits is putting an accused in "double jeopardy" in which he is put in
danger of punishment for the same offense more than once.
The rule on double jeopardy means that when a person is charged with an offense and the case is
terminate either by conviction or acquittal, or in any other manner without the consent of the accused,
the latter cannot again be charged with the same or identical offense. The constitutional provision
against double jeopardy guarantees that the state shall not be permitted to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and
ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing
that possibility that even though innocent he may be found guilty. At the heart of the policy on double
jeopardy is the concern that permitting the sovereign freely to subject the citizen to a second judgment
for the same offense would arm the government with a potent instrument for oppression

3. Section 7, Rule 117 of the Revised Rules of Court provides the requisites for a first jeopardy to
attach, as follows:
1. There is a valid complaint or information
2. Court of competent jurisdiction
3. Arraignment and Plea
4. The defendant is acquitted, convicted, or the case was dismissed
or terminated without his express consent
N.B: The judgment should not only be final and executory but also be promulgated before there could
be a valid jeopardy.
IS THERE AN EXCEPTION TO THE FOREGOING RULE?
There are two exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of
the case was with the consent of the accused—
1. If there is insufficiency of evidence to support the charge against him, and
2. Where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to
speedy trial

4. Identity of offenses charged: the constitutional protection against double jeopardy is available only
where an identity is shown to exist between the earlier and the subsequent offenses charged.
Identity of the acts: the constitutional protection against double jeopardy is available so long as the
acts which constitute or have given rise to the first offense under a municipal ordinance are the same
acts which constitute or have given rise to the offense charged under a statute.
The identity of offenses that must be shown need not be absolute identity: the first and second offenses
may be regarded as the "same offense" where the second offense necessarily includes the first offense
or is necessarily included in such first offense or where the second offense is an attempt to commit the
first or a frustration thereof.

5. Exceptions to the Double Jeopardy Rule

“However, the conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former complaint or information under any of the
following instances: “

(a) the graver offense developed due to supervening facts arising from the same act or omission
constituting the former charge;

Example: Mortz stabbed Kim. Kim was confined in the hospital. Mortz was charge with frustrated
homicide. He pleaded guilty. After 2 days, Kim died. So the fiscal amended the information to
consummated homicide. Mortz pleaded guilty double jeopardy. Under the Melo Doctrine there is no
jeopardy because of the supervening fact of death of the victim arising from the same act or omission
constituting the former charge- the graver offense developed due to the supervening fact.

The reasoning in Melo is that, when the accused was charged with frustrated homicide, the crime of
consummated homicide was not yet in existence because the victim is still alive. So, the crime of
consummated homicide started to come out after the arraignment. Therefore, the information can be
changed to consummated homicide.

(b) the facts constituting the graver charge became known or were discovered only after a plea
was entered in the former complaint or information; or

Example:

Now, the Melo doctrine had one flaw which the Sc observed on the cases. For example related in the
case above.

Mortz shot Kim. Kim was confined in the hospital. Mortz was charged with frustrated homicide. Let’s
say Mortz will be arraigned tomorrow, but tonight Kim died. The following morning nobody knew
about it. So the arraignment continued and Mortz pleaded guilty to frustrated homicide. After Mortz
was sentenced to frustated homicide, that is the time the prosecutor learned that Kim died. He now
want to consummated homicide.
Can he change the information? The SC said no. The Melo doctine does not apply there because you
cannot say that the death of the victim supervenes after the arraignment even before the arraignment,
the victim was already dead. The crime of consummated homicide was already in existence.

(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of
the offended party except as provided in section 1(f) of Rule 116.

It must be with the consent of the prosecutor and offended party. Once there is a plea-bargaining , you
cannot be charge anymore for graver offense except as provided in the Rule 116 Section 1 (f).
The private offended party shall be required to appear at the arraignment for purposes of plea
bargaining, determination of civil liability, and other matters requiring his presence. In case of failure
of the offended party to appear despite due notice, the court may allow the accused to enter a plea of
guilty to a lesser offense which is necessarily included in the offense charged with the conformity of
the trial prosecutor alone.
Pg6.

What is Provisional dismissal?

Provisional dismissal refers to those that are temporary in character( to the dismissal that are without
prejudice to the refiling of the case).

The concept of a provisional dismissal contemplates that the dismissal of the criminal action is not
permanent and can be revived within the period set by the Rules of Court. There were times when such
criminal cases were no longer revived or refiled due to causes beyond the control of the public
prosecutor or because of the indolence, apathy or the lackadaisical attitude of public prosecutors to the
prejudice of the State and the accused despite the mandate to public prosecutors and trial judges to
expedite criminal proceedings. The longer the lapse of time from the dismissal of the case to the revival
thereof, the more difficult it is to prove the crime without complying with the above requisites, the
dismissal will not trigger the operation of the "time-bar" rule in the second paragraph of Sec. 8 of Rule
117 the rule on provisional dismissal does not apply to a motion to withdraw an information.

A provisional dismissal is not the equivalent of an acquittal because the dismissal is with the express
consent of the accused. Acquittal is always based on the merits, that is, the defendant is acquitted
because the evidence does not show the defendant's guilt is beyond a reasonable doubt; but dismissal
does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the
proceeding, either because the court is not a court of competent jurisdiction, or the evidence does not
show that the offense was committed within the territorial jurisdiction of the court, or the complaint or
information is not valid or sufficient in form and substance. in such case, the defendant may again be
prosecuted for the same offense before a court of competent jurisdiction."
One case holds that while the dismissal of the case is generally not an acquittal, a dismissal based on a
demurrer to evidence and a violation of the right of the accused to speedy trial, are considered as
acquittals. Such dismissal of a criminal case by the grant of demurrer to evidence may not be appealed,
for to do so would be to place the accused in double jeopardy. The verdict being one of acquittal, the
case ends there. Also, dismissal of a criminal case upon motion of the accused because the prosecution
was not prepared for trial since the complainant and his witnesses did not appear at the trial is a
dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same
offense. Under the "doctrine of inordinate delay," even a violation of one's right to speedy disposition
of cases may be deemed an acquittal.

New additional rules on provisional dismissal

The following are the rules on provisional dismissal effective May 1, 2014 under Sec. 10 of A.M. 12-
11-2 SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to
Bail and to Speedy Trialffi: ( When the delays are due to the absence of an essential witness whose
whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion in
determining compliance with the prescribed time limits which caused the trial to exceed one hundred
eighty (180 days, the court shall provisionally dismiss the action with the express consent of the
detained accused. (When the delays are due to the absence of an essential witness whose presence
cannot be obtained by due diligence though his whereabouts are known, the court shall provisionally
dismiss the action with the express consent of the detained accused provided: (the hearing in the case
has been previously twice postponed due to the non-appearance of the essential witness and both the
witness and the offended party, if they are two different persons, have been given notice of the setting
of the case for third hearing, which notice contains a warning that the case would be dismissed if the
essential witness continues to be absent; and (there is proof of service of the pertinent notices of
hearings or subpoenas upon the essential witness and the offended party at their last known postal or e-
mail addresses or mobile phone numbers. (For the above purpose, the public or private prosecutor shall
first present during the trial the essential witness or witnesses to the case before anyone else. An
essential witness is one whose testimony dwells on the presence of some or all of the elements of the
crime and whose testimony is indispensable to the conviction of the accused. (Based on Ad Studocu)

Pg7. Comparison: Motion to Quash and Provisional Dismissal

1. A motion to quash is invariably filed by the accused. In contrast, a case may be provisionally
dismissed at the instance of either the prosecution or the accused, or both.
2. The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly
specify, its factual and legal grounds. (Sec. 2, Rule117)
3. The grounds for a motion to quash are specified under Section 3, Rule117. In contrast, Section 8,
Rule 117 does not state the grounds that lead to a provisional dismissal.
4. A motion to quash is allowed before the arraignment: there may be a provisional dismissal of the
case even when the trial proper is already underway provided the required consents are present.
5. An order sustaining the motion to quash is not a bar to another prosecution for the same offense
unless the motion was based on the grounds specified in Section 3 (g) and (i) of rule 117. A dismissal
under section 8 I,e., one with the express consent of the accused is not intended to lead to double
jeopardy as provided under section 7, but nevertheless creates a bar to further prosecution under the
special terms of section 8.

Pg8. Section 9. Failure to move to quash or to allege any ground therefore. - The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to allege the same in said
motion, shall be deemed a waiver of any objections except those based on the grounds provided
for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.

What is the effect if the person does not file any motion to quash?

-He is waiving the grounds for to quash , EXCEPT:

1. Lack of jurisdiction over subject matter
2. The information does not change any offense
3. The criminal liability has already been extinguished
4. Double jeopardy