RULE 117: Motion to Quash

Sec. 1. Time to Move to Quash

WHEN:

• at any time before entering plea
• even before jurisdiction over his person has been acquired
• even during preliminary investigation (PI)
• if during PI, the investigating judge finds the accused has not committed the crime, he may order his discharge
  

EXCEPTIONS:

• When the complaint or information does not charge an offense
• When the court lacks jurisdiction
• When the offense or penalty had been extinguished
• When there is double jeopardy

NOTA BENE: Absent these exceptions and he does not move to quash, he is deemed to have waived his objections which are grounds for a motion to quash.

MOTION TO QUASH - a special pleading filed by defendant before entering his plea wherein he hypothetically admits the truth of the facts spelled out in the information or complaint at the same time that he sets up a matter which, if duly proved, would preclude further proceedings

- interlocutory in character so if dismissed, the remedy is generally not to appeal on certiorari (except when judge committed grave abuse of discretion or acted in excess of jurisdiction) but to appeal after trial.

- if granted, it is a final order so therefore immediately appealable, provided no double jeopardy attaches

MOTION TO QUASH VS. DEMURRER TO EVIDENCE

1. Q: before entry of plea; D: after prosecution rests
2. Q: based not on merits but anchored on matters not directly related on the question of guilt or innocence; D: based on inadequacy of evidence adduced by the prosecution in support of the accusation
3. Q: governed by Rule 117; D: governed by Sec. 23, Rule 119

Sec. 2. Form and Contents

- must be in writing signed by either the accused or his counsel
- must distinctly specify all factual and legal grounds

NOTA BENE: Any ground not alleged shall not be taken cognizance of by the court (deemed waived), except lack of jurisdiction over the offense charged.

Sec. 3. Grounds

1. The facts charged do not constitute an offense - no waiver
2. The court has no jurisdiction over the offense charged - no waiver
3. The court has no jurisdiction over the person of the accused - waivable
4. The investigating officer who filed the complaint or information has no authority to do so - waivable
5. It does not conform substantially to the prescribed form - waivable
6. The information or complaint charges more than one offense - waivable
7. The criminal action or liability has already been extinguished - no waiver
8. It contains averments that, if proven, constitute a legal excuse or justification - waivable
9. The accused has been convicted or acquitted of the offense charged, or his case has been otherwise terminated without his express consent - waivable

NOTA BENE:

• If the facts alleged do not constitute a punishable offense, the court, instead of dismissing the case, should allow the prosecution to amend the information.
• No first jeopardy if case is dismissed because information is defective or void or does not charge a proper offense.

ELEMENTS OF JURISDICTION OVER SUBJECT MATTER:

• Nature of the offense and/or the penalty attached thereto;
• The fact that the offense has been committed within the territorial jurisdiction of the court

NOTA BENE:

• If lack of jurisdiction is alleged and case is dismissed because of that, but it turns out that the court has jurisdiction, the party who alleged lack of jurisdiction is estopped from assuming the inconsistent position that court had jurisdiction.
• Jurisdiction over subject matter and territorial jurisdiction are conferred by law so cannot be waived. However, jurisdiction over person of accused is generally waivable.
• The court’s jurisdiction is determined at the first instance from the facts alleged in the information or complaint. So even if the complaint alleges an offense cognizable by the RTC but after trial, the crime proven is really cognizable by a lower court, the RTC retains jurisdiction for the purpose of imposing penalty.
• If lack of conformity to prescribed form, this can be cured by amendment.
• f multiplicity of offenses, EXCEPTIONS are (1) complex and compound crimes, and (2) specific crime set forth in various counts.

HOW CRIMINAL LIABILITY IS EXTINGUISHED:

1. Death of the convict for personal liabilities; for pecuniary liabilities, only when the death of the offender happens before final conviction
2. Service of sentence
3. Amnesty
4. Absolute Pardon
5. Prescription of the crime
6. Prescription of the penalty
7. Marriage of the offended woman with the accused in case of rape
   

NOTA BENE: Absence of preliminary investigation is not a ground for motion to quash.

Sec. 4. Amendment of Complaint or Information

- if defective information, remedy is amendment (no jeopardy)
- motion to quash is granted, if prosecution fails to make amendment, or the complaint or information still suffers the same defect despite amendment

Sec. 5. Effect of Sustaining the Motion to Quash

- if motion to quash is sustained, court may order another complaint or information to be filed, EXCEPT:

1. If the criminal action or liability has already been extinguished
2. If the accused has already been convicted or acquitted for the offense charged, or his case has been terminated without his express consent

- if order to file new information or complaint is made, the accused in custody shall not be discharged, UNLESS admitted to bail

- if no order is made, or having been made, no amendment was made within specified time, the accused in custody shall be set free, UNLESS if in custody for another crime


NOTA BENE:

• If ground is lack of jurisdiction over subject matter, better practice is to remand or forward the case to the proper court instead of quashing the information or complaint.
• Refile information or complaint if the ground is: (1) facts charged do not constitute an offense; (2) investigating officer who filed has no authority; (3) no conformity to prescribed form; and (4) more than one offense is charged

Sec. 6. Order Sustaining a Motion to Quash not a Bar to Another Prosecution; EXCEPTION

• Criminal liability has been extinguished
• Accused has already been convicted or acquitted for the offense charged, or his case has been terminated without his express consent

Sec. 7. Former Conviction or Acquittal; DOUBLE JEOPARDY

ELEMENTS:

• Valid information or complaint (in form and substance)
• Competent court
• Arraignment and plea
• Conviction, acquittal, or dismissal on the merits or terminated without express consent of the accused
• Second offense charged is the same as the first, or is an attempt to commit or a frustration thereof; The second offense necessarily includes or is necessarily included in the first

NOTA BENE:

• If the case was dismissed after trial on ground that information was insufficient to sustain a conviction when said information is in fact sufficient, re-filing the case is barred by double jeopardy.
• If the case was dismissed after trial on ground of lack of jurisdiction when in fact court has jurisdiction, the party who alleged lack of jurisdiction is estopped from appealing case based on the inconsistent position that it had jurisdiction.
• If accused pleaded guilty and allowed to prove mitigating circumstance but instead proves complete self-defense, the plea of guilty is deemed withdrawn. If no new plea is entered and the court acquits, no double jeopardy because no standing plea.
• An order of dismissal made by court motu propio based on merits or failure of prosecution witnesses to appear has the effect of judgment so there is double jeopardy.
• For jeopardy to attach, the dismissal must be without express consent of the accused, EXCEPT: (so double jeopardy attaches even if it was accused who made the motion)

1. Where the dismissal is based on a demurrer to evidence after prosecution rests (EFFECT: acquittal)
2. Where the dismissal is based on violation of accused’s right to speedy trial (EFFECT: failure to prosecute)
   

• A dismissal for lack of due process of law does not constitute a proper basis for double jeopardy.

EXCEPTIONS TO THE IDENTITY RULE:

• When the graver offense is due to supervening facts arising from the same act or omission constituting the offense charged;
• When the facts constituting the graver offense were only discovered after plea was entered
• When the plea of guilty for the lesser offense was done without the consent of the trial prosecutor and the offended party, EXCEPT when the offended party was duly notified but failed to appear during arraignment for no justifiable reason

Sec. 8. Provisional Dismissal

REQUISITES:

• Express consent of accused
• Notice to the offended party
• Court grants motion for provisional dismissal
• Public prosecutor is served a copy of the court order

PRESCRIPTION

- if offense is punishable with imprisonment not exceeding 6 years, then order of provisional dismissal becomes final after one year from issuance
- if offense is punishable with imprisonment for more than 6 years, then order of provisional dismissal becomes final after 2 years from issuance
- but State can still file even after expiration of these prescription periods if there is “justifiable necessity for the delay”

Sec. 9. Failure to Move to Quash or Allege Any Ground Therefor

- constitute waiver; EXCEPT:

1. If facts alleged do not constitute an offense
2. Court lacks jurisdiction over the offense charged
3. Criminal action or liability has been extinguished
4. Double jeopardy