On
Double Jeopardy

Section 6. Order sustaining the motion to quash not a bar to another  prosecution; exception

GENERAL RULE:
   - An order sustaining an MTQ is not a bar to another  prosecution for the same offense

     EXCEPTIONS: When the ground for the MTQ is any of the following:
     1. Criminal action or liability has been extinguished
     2. Double Jeopardy

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 charges 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.


KINDS OF DOUBLE JEOPARDY:
1. No person shall be put twice in jeopardy for the SAME OFFENSE
2. When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution for the SAME ACT

IDENTITY RULE
   - There is identity between two offenses not only when the second offense is exactly the same as the first, but also when the second offense includes or is necessarily included in the first offense or is an attempt or frustration thereof

EXCEPTIONS TO IDENTITY RULE:
1. The graver offense developed due to supervening facts arising out of the same act or omission      constituting the former charge
2. The facts constituting the graver offense became known or were discovered only after a plea was entered in the former complaint or information.
3. The plea of guilty to a lesser offense was made without the consent of the prosecutor and the          offended party

REQUISITES TO RAISE DOUBLE JEOPARDY:
1. first jeopardy must have attached
2. first jeopardy must have been terminated
3. The second jeopardy must be for the same offense or the second offense includes or is necessarily included in the offense charged in the first information or is an attempt or frustration thereof.

REQUISITES FOR 1ST JEOPARDY TO ATTACH:
1. valid complaint or information
2. court of competent jurisdiction
3. valid arraignment
4. valid plea
5. the defendant was acquitted, convicted, or the case was dismissed without his express consent or authority.

NOTE: In order to raise double jeopardy for the SAME ACT, there must be an acquittal or conviction. For double jeopardy for the SAME OFFENSE it is sufficient that the case was dismissed without his express consent.

Perez vs. CA, 163 SCRA 236 (1988)
- If a single act is punished by two different laws, but each requires proof of an additional fact which the other does not require, conviction or acquittal in one will not bar a prosecution for the other.

Ex. Violation of BP 22 and Estafa

Double Jeopardy will not apply in case of a conviction of a crime under a special law, which also constitutes an offense under the Revised Penal Code. This is because the former is malum prohibitum, while the latter is mala in se.

In order for double jeopardy to attach, the judgment must be reading its entirety (promulgation of judgment). If only the dispositive portion is read, then double jeopardy will not attach.

Test for “Valid Complaint or Information”
 - In general, if it can support a valid conviction. This means that all the necessary elements of the crime are alleged.

What is controlling for purposes of determining the presence of double jeopardy is the crime charged in the complaint not the crime proven in trial.

Dismissal vs. Acquittal
1. Dismissal - Does not decide the case on the merits, does not determine defendant’s guilt or innocence.
 
Acquittal - Always based on the merits. Defendant is acquitted because guilt wasn’t proven beyond reasonable doubt.

2. Dismissal - Double Jeopardy will not always attach.
 
Acquittal - Double Jeopardy always attaches.

WHEN DISMISSAL = ACQUITTAL:
1. Demurrer to evidence
2. Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent)

Rules Regarding “Without Express Consent”
- If dismissal was upon motion of the accused or counsel, such is deemed to be with defendant’s express consent.

Silence of the accused does not mean consent.

Statement of “no objection” is express consent.

Rules Regarding State Witnesses
- An order discharging an accused as a state witness amounts to an acquittal, hence double jeopardy will apply.

However, if he fails or refuses to testify against his co-accused in accordance with his sworn statement, he may be prosecuted again.


Bar Exam Question (2003)

Dismissal; Failure to Prosecute (2003)

When a criminal case is dismissed on nolle prosequi, can it later be refilled? 

Suggested Answer:

As a general rule, when a criminal case is dismissed on nolle prosequi before the accused is placed on trial and before he is called on to plead, this is not equivalent to an acquittal and does not bar a subsequent prosecution for the same offense. (Galvez v. Court of Appeals, 237 SCRA 685 [1994]).

Bar Exam Question (2002)

Double Jeopardy (2002)

D was charged with slight physical injuries in the MTC. He pleaded not guilty and went to trial. After the prosecution had presented its evidence, the trial court set the continuation of the hearing on another date. On the date scheduled for hearing, the prosecutor failed to appear, whereupon the court, on motion of D, dismissed the case. A few minutes later, the prosecutor arrived and opposed the dismissal of the case. The court reconsidered its order and directed D to present his evidence. Before the next date of trial came, however, D moved that the last order be set aside on the ground that the reinstatement of the case had placed him twice in jeopardy. Acceding to this motion, the court again dismissed the case. The prosecutor then filed an information in the RTC, charging D with direct assault based on the same facts alleged in the
information for slight physical injuries but with the added allegation that D inflicted the injuries out of resentment for what the complainant had done in the performance of his duties as chairman of the board of election inspectors. D moved to quash the second information on the ground that its filing had placed him in double jeopardy. How should D’s motion to quash
be resolved? (

Suggested Answer:

D’s motion to quash should be granted on the ground of double jeopardy because the first offense charged is necessarily included in the second offense charged. [Draculan v. Donato, 140 SCRA 425 (1985)].

Alternative Answer:

D’s motion to quash should be denied because the two dismissals of the case against him were on his motion (hence with his express consent) and his right to a speedy trial was not violated.

Bar Exam Question (2005)

Double Jeopardy; Upgrading; Original Charges (2005)

For the multiple stab wounds sustained by the victim, Noel was charged with frustrated homicide in the RTC. Upon arraignment, he entered a plea of guilty to said crime. Neither the court nor the prosecution was aware that the victim had died two days earlier on account of his stab wounds. Because of his guilty plea, Noel was convicted of frustrated homicide and meted the corresponding penalty. When the prosecution learned of the victim's death, it filed within fifteen (15) days therefrom a motion to amend the information to upgrade the charge from frustrated homicide to consummated homicide. Noel opposed the motion claiming that the admission of the amended information would place him in double jeopardy. Resolve the motion with reasons. 

Suggested Answer:

The amended information to consummated homicide from frustrated homicide does not place the accused in double jeopardy. As provided in the second paragraph of Sec. 7, Rule 117,2000 Rules of Criminal Procedure, 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 when: 
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; or 
(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. Here, when the plea to frustrated homicide was made, neither the court nor the prosecution was aware that the victim had died two days earlier on account of his stab wounds.

Bar Exam Question (2002)

Information; Amendment; Double Jeopardy; Bail (2002)

A. D and E were charged with homicide in one information. Before they could be arraigned, the prosecution moved to amend the information to exclude E therefrom. Can the court grant the motion to amend? Why? 

B. On the facts above stated, suppose the prosecution, instead of filing a motion to amend, moved to withdraw the information all together and its motion was granted. Can the prosecution re-file the information although this time for murder? Explain 

Suggested Answer:

A. Yes, provided notice is given to the offended party and the court states its reasons for granting the same. (Rule 110, sec. 14).

B. Yes, the prosecution can re-file the information for murder in substitution of the information for homicide because no double jeopardy has as yet attached. [Galvez v. Court of Appeals, 237 SCRA 685 (1994)].

Bar Exam Question (1997)

Information; Amendment; Supervening Events (1997)

A was accused of homicide for the killing of B. During the trial, the public prosecutor received a copy of the marriage certificate of A and B.

(a) Can the public prosecutor move for the amendment of the information to charge A with the crime of parricide?
(b) Suppose instead of moving for the amendment of the information, the public prosecutor presented in evidence the marriage certificate without objection on the part of the defense, could Abe convicted of parricide?

Suggested Answer:

(a) No. The Information cannot be amended to change the offense charged from homicide to parricide. Firstly, the marriage is not a supervening fact arising from the act constituting the charge of homicide. (Sec. 7[a] of Rule 117). Secondly, after plea, amendments may be done only as to matters of form. The amendment is substantial because it will change the nature of the offense. (Sec. 14 of Rule 110; Dionaldo us. Dacuycuy. 108 SCRA 736).
(b) No. A can be convicted only of homicide not of parricide which is a graver offense. The accused has the constitutional rights of due process and to be informed of the nature and the cause of the accusation against him. (Secs. 1, 14 (1) and (2} Art. III. 1987 Constitution),