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Section 8. 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. 

REQUISITES PROVISIONAL DISMISSAL:
1. consent of the prosecutor
2. consent of the accused
3. notice to the offended party

NOTE: If a case is provisionally dismissed, the failure to revive or reinstate the case within the periods set by law will make the dismissal permanent.

HOW TO REVIVE A CASE:
1. Refiling of the information
2. Filing a new information for the same offense or one necessarily included in the original offense charged.

PERIODS FOR REINSTATEMENT/REVIVAL:
1. 1 YEAR for offenses punishable by imprisonment not exceeding 6 years
2. 2 YEARS for offenses punishable by imprisonment exceeding 6 years

GENERAL RULE:
- When a case is reinstated there is no need to conduct a new preliminary investigation.

EXCEPTIONS:
- Original witnesses or some of them recant their testimony, are no longer available (died) or when new witnesses have emerged
- Other persons are charged under the new complaint
- Original charge has been upgraded
- Criminal liability of the accused has been upgraded (ex. accomplice --- principal)

Bar Exam Question (2003)

Dismissal; Provisional Dismissal (2003)

Before the arraignment for the crime of murder, the private complainant executed an Affidavit of Desistance stating that she was not sure if the accused was the man who killed her husband. The public prosecutor filed a Motion to Quash the Information on the ground that with private complainant’s desistance, he did not have evidence sufficient to convict the accused. On 02 January 2001, the court without further proceedings granted the motion and provisionally dismissed the case.
The accused gave his express consent to the provisional dismissal of the case. The offended party was notified of the dismissal but she refused to give her consent. Subsequently, the private complainant urged the public prosecutor to refile the murder charge because the accused failed to pay the consideration which he had promised for the execution of the Affidavit of Desistance. The public prosecutor obliged and refiled the murder charge against the accused on 01 February 2003, the accused filed a Motion to Quash the Information on the ground that the provisional dismissal of the case had already become permanent. 

a) Was the provisional dismissal of the case proper?
b) Resolve the Motion to Quash.

Suggested Answer:

a) The provisional dismissal of the case was proper because the accused gave his express consent thereto and the offended party was notified. It was not necessary for the offended party to give her consent thereto. (Sec. 8 of Rule 117).
b) The motion to quash the information should be denied because, while the provisional dismissal had already become permanent, the prescriptive period for filing the murder charge had not prescribed. There was no double jeopardy because the first case was dismissed before the accused had pleaded to the charge. (Sec. 7 of Rule 117).