CRIMINAL PROCEDURE

RULE 117 MOTION TO QUASH

ALMODIA, CRISTY
DE OCAMPO, CHURCHILL
SAPA, ALTHEA PEARL BRYNN

SECTION ONE

Time to move to quash. — At any time before entering his plea, the accused may move to quash
the complaint or information. (1)

MOTION TO QUASH

Motion to quash is generally used in criminal proceedings while motion to dismiss is used
in civil proceedings and aimed at summarily defeating a complaint.

SECTION TWO

Form and contents. — The motion to quash shall be in writing, signed by the accused or his
counsel and shall distinctly specify its factual and legal grounds. The court shall consider no
ground other than those stated in the motion, except lack of jurisdiction over the offense charged.
(2a)

FORMAL REQUIREMENTS

Only the accused has the right to file a motion to quash. The judge cannot file a motion to
quash as it will diminish his/her partiality, as if he/she already sided in favor of the accused
if he/she motioned to quash.

To allow a judge to initiate such a motion even under the guise of a show cause order
would result in a situation where a magistrate who is supposed to be neutral, in effect, acts
as counsel for the accused and judge as well.

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SUBSTANTIAL COMPLIANCE

There is no need to submit any evidence to support the ground for quashing the
information where the facts alleged in the motion was apparent and within judicial notice.

GROUNDS ALLEGED IN THE MOTION TO QUASH

The grounds which have not been pleaded in the motion cannot be taken cognizance of by
the court, even if at the time of filing thereof, it may be properly invoked by the defendant.

SECTION THREE

Grounds. — The accused may move to quash the complaint or information on any of the following
grounds:

a. That the facts charged do not constitute an offense;

b. That the court trying the case has no jurisdiction over the offense charged;
c. That the court trying the case has no jurisdiction over the person of the accused;
d. That the officer who filed the information had no authority to do so;
e. That it does not conform substantially to the prescribed form;
f. That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;
g. That the criminal action or liability has been extinguished;
h. That it contains averments which, if true, would constitute a legal excuse or justification;
and
i. That the accused has been previously convicted or acquitted of the offense charged, or the
case against him was dismissed or otherwise terminated without his express consent. (3a)

FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE

A complaint or information must state every single fact necessary to constitute the offense
charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense
may be properly sustained.

Although the information may be defective because the facts charged do not constitute an
offense, the dismissal of the case will not necessarily follow.

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LACK OF JURISDICTION OVER THE OFFENSE CHARGED

Lack of jurisdiction of any law conferring upon the court the power to inquire into the facts,
to apply the law and to declare the punishment for an offense in a regular course of
judicial; proceeding. Lack of jurisdiction should be evident from the face of the information
or complaint to warrant a dismissal thereof.

LACK OF JURISDICTION OVER THE PERSON OF THE ACCUSED

Jurisdiction over the accused is acquired upon his arrest or voluntary appearance such as
when he files a pleading seeking affirmative relief from the court.

In criminal cases, such pleadings would be motions to quash a complaint on the ground of
lack of jurisdiction over the person of the accused and motions to quash a warrant of
arrest. A motion to quash a complaint on the grounds of lack of jurisdiction over the person
of the accused must be timely filed.

LACK OF AUTHORITY OF THE OFFICER WHO FILED THE INFORMATION

This is ground for quashal goes to very foundation of jurisdiction, as it is valid information
signed by a competent officer which, among other requisites, confers jurisdiction on the
court over the person of the accused and the subject matter of the accusation. A motion to
quash on this ground may be granted even after the accused has already entered his plea
under the information.

FAILURE TO COMPLY WITH REQUIRED FORM

An information that fails to state the contents of the information as required by the Rules
and the absence of certification of the public prosecutor under section 4, Rule 112 of the
Revised Rules of Criminal Procedure may be quashed on the ground that it does not
conform substantially to the prescribed form.

It is not necessary to allege in the information the date and time of the commission of the
crime with exactitude unless time is an essential ingredient of the offense.

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If appellant failed to raise the issue of the defective information before the trial court
through a motion for bill of particulars or motion to quash the information.

MORE THAN ONE OFFENSE IS CHARGED

The rules prohibit the filing of a duplicitous information to avoid confusing the accused in
preparing his defense. Sec. 13 of Rule 110 of the Revised Rules of Criminal Procedure
provides that the complaint or information must charge buy only one offense, except only
in those cases in which existing laws prescribe a single punishment for various offenses.

COMPLEX CRIMES

As an exception to the rule on duplicitous information, an information can charge more

than offense when the law prescribes a single punishment for various offenses.

In a special complex crime, the prosecution must necessarily prove each of the component
offenses with the same precision that would be necessary if they were made the subject of
separate complaints.

PRESCRIPTION

Rule 117 provides that the accused may move to quash the complaint and information on
the ground that the criminal action or liability has been extinguished. Even if there is yet to
be trial on the merits of a criminal case, the accused can very well invoke the defense
prescription.

LEGAL EXCUSE OR JUSTIFICATION

Accused may move to quash the complaint or information where it contains averments
which, if true, would constitute a legal excuse or justification (Sec 3(g) of Rule 117).

DOUBLE JEOPARDY

Charges accused of an offense for which he has been previously convicted or acquitted, or
for which the case against him was dismissed or otherwise terminated without his express
consent, may be quashed.

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If the trial is terminated before it is completed, and it is dismissed with the consent of the
defendant, such as when it was the defense that moved for the dismissal of a criminal case,
then double jeopardy will not attach.

Both acquittal of an accused and dismissal of a criminal case against an accused result in
the termination of proceedings. Acquittal, however, is always based on the merits, that is,
the defendant is acquitted because the evidence does not show that defendant’s guilt is
beyond reasonable doubt.

If the prosecution fails to prove that the offense was committed within the territorial
jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal. It is
elemental that in such a case the defendant may again be prosecuted for the same offense
before a court of competent jurisdiction.

ACQUITTAL

An acquittal is final and unpredictable on the grounds of double jeopardy, whether it

happens at the trial court or before the Court of Appeals. The acquittal of an accused in the
first case is bar to second prosecution against him for the same offense.

An information charging him for the same offense is quashable under Sec. 3(i) of Rule 117
of the Revised Rules of Court.

DISMISSAL WITHOUT THE ACCUSED’S EXPRESS CONSENT

Dismissal of the case must be without the express consent of the accused. Except when the
case was dismissed on the ground of insufficiency of evidence or denial of the right to a
speedy trial.

The accused’s action in having the case dismissed constitutes a waiver of his constitutional
right or privilege as he thereby prevents the court from proceeding to the trial on the merit
and rendering a judgment of conviction against him.

SECTION FOUR

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Amendment of the complaint or information. — If the motion to quash is based on an alleged
defect of the complaint or information which can be cured by amendment, the court shall order
that an amendment be made. (4a)

If it is based on the ground that the facts charged do not constitute an offense, the prosecution
shall be given by the court an opportunity to correct the defect by amendment. The motion shall
be granted if the prosecution fails to make the amendment, or the complaint or information still
suffers from the same defect despite the amendment. (n)

DEFECT OF THE COMPLAINT OR INFORMATION CAN BE CURED BY AMENDMENT

If the basis of the motion to quash falls under defects that can be cured by amendments
such as error in forms or amendment of the facts constituting the same offense filed. If the
defects in the complaint or information is curable by amendment, such amendment shall
be granted to the prosecution,however, if the prosecution fails to do so, the motion to
quash shall be granted and the accused is acquitted. The court can only grant the motion
upon the prosecution’s failure to do so.

SECTION FIVE

Effect of sustaining the motion to quash. — If the motion to quash is sustained, the court may
order that another complaint or information be filed except as provided in section 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, the accused, if in custody,
shall be discharged unless he is also in custody for another charge.

SUSTAINING THE MOTION TO QUASH

If the motion is granted, the court may order that another complaint be filed with
exemptions covered by Section 6 of this rule. The order is at the court’s discretion, with the
specified period extendible as long as there is good cause for the court to allow so. When
the order is given, the accused will not be discharged unless the accused admits to bail or
when the specified period given by the court to file a new complaint or information has
expired.

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DENIAL OF MOTION TO QUASH

The denial of the motion is not appealable as it is an interlocutory order. Upon the denial of
the motion to quash, the trial will proceed as is.

SECTION SIX

Order sustaining the motion to quash not a bar to another prosecution; exception. — 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 this Rule.

BARRING FROM RE-FILING A COMPLAINT

Under the Revised Penal Code, criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties and as to pecuniary

penalties, liability therefor is extinguished only when the death of the offender
occurs before final judgment;
2. By service of the sentence;
3. By amnesty, which completely extinguishes the penalty and all its effects;
4. By absolute pardon;
5. By prescription of the crime;
6. By prescription of the penalty;
7. By the marriage of the offended woman, as provided in Article 344 of this Code.144

If a motion to quash is filed on the grounds of extinguishing criminal liability or double

jeopardy and is granted by the court, the prosecution may no longer re-file the complaint.

SECTION SEVEN

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

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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. (7a)

DOUBLE JEOPARDY

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."

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.

REQUISITES FOR A FIRST JEOPARDY

1. There is a valid complaint or information

2. Court of competent jurisdiction
3. Arraignment and Plea

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 4. The defendant is acquitted, convicted, or the case was dismissed or terminated
without his express consent

The judgment should not only be final and executory but also be promulgated before
there could be a valid jeopardy.

EXCEPTIONS TO THE DOUBLE JEOPARDY RULE

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 of Rule 116.

SECTION EIGHT

Provisional dismissal. — A case shall not be provisionally dismissed except with the express
consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a
fine of any amount, or both, shall become permanent one (1) year after issuance of the order
without the case having been revived. With respect to offenses punishable by imprisonment of
more than six (6) years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived. (n)

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. It 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.

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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 be distinctly specify its factual and legal grounds.
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.

SECTION NINE

Failure to move to quash or to allege any ground therefor. — 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 based on the grounds provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)

PERSON DOES NOT FILE 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

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 3. The criminal liability has already been extinguished
4. Double jeopardy

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