The Rules of Court allow the courts to dismiss a criminal case provisionally if it is with the express consent of the accused and with notice to the offended party.
By provisional dismissal, it literally means that the dismissal of the case is merely temporary.
Express consent of the accused
For the courts to provisionally dismiss a criminal case, the accused has to give his express consent.
How express consent given
Express consent to a provisional dismissal is given either viva voce (orally) or in writing.
It is a positive, direct, unequivocal consent which requires no inference or implication to supply its meaning.
Instances when express consent deemed given
For instance, the express consent of the accused is deemed given if he files a motion for provisional dismissal of the case.
It is also deemed given if he writes No objection or With my conformity on the motion of a prosecutor for provisional dismissal.
Inaction or silence of the accused
But the mere inaction or silence of the accused to a motion for provisional dismissal of the case or his failure to object to a provisional dismissal does not amount to express consent.
Why express consent needed
The express consent of the accused is of course needed to bar him from later asserting that the revival of the case will place him in double jeopardy for the same offense or an offense necessarily included in it.
Notice to the offended party
Notice to the offended party of the motion for provisional dismissal of a criminal case is also needed for the courts to dismiss it provisionally.
Remember that in crimes involving private interests, the offended party or parties or the heirs of the victims must be given adequate a priori notice of any motion for provisional dismissal of the case.
Service to public or private prosecutor
Such notice may be served on the offended party or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer with him before the hearing or appear in court during the hearing.
Proof of service
The proof of such service must be shown during the hearing on the motion. Otherwise, the requirement will become illusory.
Why notice to the offended party needed
Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably and effectively comment on or object to the motion on valid grounds.
Provisionally dismissed criminal case may be revived
Since provisional dismissal of a criminal case literally means that the dismissal of the case is only temporary, it follows then that it can be revived at some future time.
How provisionally dismissed criminal case revived
The State may revive it either by:
(a) Refiling of the Information; or,
(b) Filing of a new Information for the same offense or an offense necessarily included in it.
In both ways, no new preliminary investigation is needed.
When new preliminary investigation needed
But a new preliminary investigation is needed before the refiling of the Information or the filing of a new Information in the following cases:
(a) If the original witnesses of the prosecution or some of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for the State have emerged;
(b) If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or an offense necessarily included in it;
(c) If under a new criminal complaint, the original charge has been upgraded; or,
(d) If under a new criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a principal.
But even if a criminal case dismissed provisionally with the express consent of the accused and with notice to the offended party may be revived at some future time, its revival has to be made within the time-bar.
In particular, if the case involves an offense punishable by imprisonment of less than or exactly six (6) years, or a fine of any amount, or both, its revival has to be made within one (1) year.
If it involves an offense punishable by imprisonment of more than six (6) years, its revival has to be made within two (2) years.
If the State fails to revive it within the one or two-year time-bar, the dismissal of the case then automatically becomes permanent.
Such permanent dismissal amounts to an adjudication of the case on the merits.
Motion to revive the case vs. Court order reviving the case
But the contention that both the filing of the motion to revive the case and the court order reviving it must be made prior to the expiration of the one or two-year time-bar is unsustainable.
Such interpretation is not found in the Rules of Court.
To permit otherwise would definitely put the offended party at the mercy of the trial court, which may wittingly or unwittingly not comply.
Remember that most if not all of our trial court judges have to deal with clogged dockets in addition to their administrative duties and functions.
They could not as a consequence be expected to act at all times on all pending decisions, incidents, and related matters within the prescribed period of time.
It is also possible that some of them, motivated by ill-will or malice, may simply exercise their whims and caprices in not issuing the order of revival on time.
Conditions for the time-bar to apply
For the time-bar to apply, the following conditions, which are also the essential requisites for the provisional dismissal of a criminal case, must of course be met:
(a) The prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal;
(b) The offended party is notified of the motion for a provisional dismissal of the case;
(c) The court issues an order granting the motion and dismissing the case provisionally; and,
(d) The public prosecutor is served with a copy of the order of provisional dismissal of the case.
Reckoning period of the time-bar
The one or two-year time-bar is reckoned from the service of the order of provisional dismissal on the public prosecutor who has control of the prosecution.
The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order.
If the offended party is represented by a private counsel, it is reckoned from the time the counsel was actually notified of the order.
When a party is represented by a counsel, notices of all kinds emanating from the court should be sent to the latter at his given address.
[References: Section 8, Rule 117 of the Rules of Court, People of the Philippines vs. Dr. Claro Robles, G.R. No. L-12761, June 29, 1959, Arnold Vegafria vs. Judge Catalino Castañeda, Jr. et. al., G.R. No. 106522, October 23, 1992, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R. No. 149453, May 28, 2002, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, March 25, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 1, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, April 29, 2003, People of the Philippines, et. al. vs. Panfilo M. Lacson, G.R.No 149453, October 7, 2003, Ariel M. Los Baos, et. al. vs. Joel R. Pedro, G.R. No. 173588, April 22, 2009, Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting Holding Jails by Enforcing the Rights of Accused Persons to Bail and to Speedy Trial), William Co vs. New Prosperity Plastic Products, G.R. No. 183994, June 30, 2014, Atty. Segundo B. Bonsubre, Jr. vs. Erwin Yerro, et. al., G.R. No. 205952, February 11, 2015]