Remedial Law Reviewer - Micky

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro PROVISIONAL REMEDIES 1 RULE 57 PRELIMINARY ATTACHMENT 1 RULE
58 PRELIMINARY INJUNCTION 7 RULE 59 RECEIVERSHIP 11 RULE 60 REPLEVIN 13 RULE 61 SUPPORT PENDENTE LITE 15 SPECIAL CIVIL ACTIONS 16 RULE 62 INTERPLEADER 16 RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES 18 RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT 19 RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS 21 RULE 66 QUO WARRANTO 24 RULE 67 EXPROPRIATION 26 RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE 30 RULE 69 PARTITION 33 RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER 36 RULE 71 CONTEMPT 40 CRIMINAL PROCEDURE 43 VENUE IN CRIMINAL CASES 43 SPECIAL AGRARIAN COURT JURISDICTION 45 SANDIGANBAYAN JURISDICTION 45 OMBUDSMAN JURISDICTION 46 POWER OF THE SECRETARY OF JUSTICE OVER THE PROSECUTORS 47 ROLE OF THE OSG IN CRIMINAL CASES 47 RULE 110 PROSECUTION OF OFFENSES 48 RULE 111 - PROSECUTION OF CIVIL ACTION 53 RULE 112 - PRELIMINARY INVESTIGATION 57 RULE 113 - ARREST 63 RULE 114 - BAIL 66 RULE 115 - RIGHTS OF ACCUSED 72 RULE 116 - ARRAIGNMENT AND PLEA 77 RULE 117 MOTION TO QUASH 80 RULE 118 PRE-TRIAL 84 RULE 119 - TRIAL 86 RULE 120 JUDGMENT 91 RULE 121 - NEW TRIAL OR RECONSIDERATION 94 RULE 122 - APPEAL 95 RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL COURTS 99 RULE 124 - PROCEDURE IN THE COURT OF APPEALS 99 RULE 125 - PROCEDURE IN THE SUPREME COURT 101 RULE 126 - SEARCH AND SEIZURE 102 This reviewer is based on Atty. Tranquil Salvadors lectures, SCA notes from Atty. Guevarras class, Glenn Tuazons (ALS 2011) brilliant notes. Enjoy! PROVISIONAL REMEDIES
Prov rems are ancillary to principal actions. o So if the principal action is dismissed, then youre prov rem shall be dizmizzed. GR: No principal action of preliminary attachment, etc. o EXCEPT: Receivership in Corporation or Banking Law In Arbitration Law, where you can file any provisional remedy as a main action in aid of an arbitration clause.
RULE 57 PRELIMINARY ATTACHMENT
There are three stages of attachment (Torres v Satsatin, 2009): o Court issues order granting such application o Writ of attachment issues pursuant to the order o Implementation of the writ For the first 2 stages, jd over the defendant is not required. Its only required when you implement the writ. How do you acquire jd during the 3rd stage?
Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro
By service of summons prior to or contemporaneous with the order for implementation. (see Sec 5)
Section 1. Grounds upon which attachment may issue. At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines which intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an attorney, factor, broker agent, or clerk, in the course of his employment as such, or by other person in a fiduciary capacity, or for a willful violation of duty; (c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication.
The magic word for attachment: secure Where? o Court in which the action is pending. (Even the MTC!) When? o Any time before entry of judgment, as long as case is pending and there is a ground available What do you need? o Grounds must be present o An affidavit (see Sec 3) o Bond to be determined by the court (see Sec 3) What are the grounds for attachment? o Any claim for money or damages, except moral and exemplary, with the claim arising from an obligation, AND the defendant is about to depart from the Philippines WITH intent to defraud Must show facts showing intent to depart and defraud (like selling property, withdrawing all money from the BPI, etc) You can only use this if the defendant is about to depart and there is intent to defraud o Embezzlement/abuse of trust by one with a fiduciary relationship Usually in estafa cases Also a prov rem in criminal cases1 o Action to recover property and there is willful fraudulent concealment of the property Compare this to replevin In replevin, the property is a specific one, the thing object of the action. In attachment, the property to be attached is any property, not necessarily the object of the action. In replevin, you can only avail of it before an answer is filed. In attachment, any time.
1 Rule 127, Sec. 2. Attachment. When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and (d) When the accused resides outside the Philippines.
In replevin, the property is personal property. In attachment, any property. Fraud in contracting the obligation or fraud in the performance thereof In contracting the obligation: if not for the fraud, the other party would not have entered into the transaction In the performance: in the manner of performance, there was fraud Action against a person who removes/conceals property, or is about to do so, with intent to defraud Directed against the person Defendant is a non-resident, or on whom summons by publication is made
Sec. 2. Issuance and contents of order. An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. Sec. 3. Affidavit and bond required. An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. Sec. 4. Condition of applicant's bond. The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party and all damages which he may sustain by reason of the attachment, if the court shall finally adjudged that the applicant was not entitled there to.
What are the contents of the affidavit? o Cause of action o The grounds in Sec 1 o No other sufficient security for the claim sought to be enforced by the action o Amount due to the applicant Why post a bond? o To answer for damages of the adverse party Who must issue the bond? A bond company certified by the SC to operate within a judicial area or region.
Sec. 5. Manner of attaching property. The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counterbond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. Sec. 6. Sheriff's return. After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ and a complete Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant. Sec. 7. Attachment of real and personal property; recording thereof. Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deed of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached, or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deed must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor; (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits, including bank deposits, financial interest, royalties, commissions, and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. Sec. 8. Effect of attachment of debts, credits and all other similar personal property. All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. Sec. 9. Effect of attachment of interest in property belonging to the estate of a decedent. The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the power of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee, or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. Sec. 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff. Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro be examine on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court or sheriff on such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. Sec. 11. When attached property may be sold after levy on attachment and before entry of judgment. Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the party attached is perishable, or that the interests of all the parties to the action will be will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. Sec. 12. Discharge of attachment upon giving counterbond. After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forth with be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counterbond for any reason to be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new order of attachment. Sec. 13. Discharge of attachment on other grounds. The party whose property has been ordered attached may file a motion with the court in which the action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharged the attachment on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith.
How do you discharge an attachment? o Most common: post a counter-bond Availed of when the attachment has already been enforced You cant anticipate the enforcement Amount is usually the value of the subject matter of the action (Insular Savings v CA, 2006) Note: mere posting of a counter-bond will NOT automatically discharge the attachment, there must be a court order to that effect (Security Pacific v Amelia, 2005) o Motion to set aside based on improper, irregular, or excessive attachment; or when the bond is insufficient Availed of even before enforcement (compare to posting a counter-bond) Improper: grounds are not present in the case Irregular: wrong process, like when writ is given without a bond, or the jurisdiction is not yet acquired Important: no ex parte discharge allowed Can there be partial release on a counterbond? o Yes.
Sec. 14. Proceedings where property claimed by third person.
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached party, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property, to any such thirdparty claimant, if such bond shall be filed. Nothing herein contained such prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.
Same as when the property subject to execution is claimed by a 3rd party, except for the provision regarding vindicating a claim o In attachment: the vindication can be done in the same or separate action o In execution: the vindication can be done only in a separate action Since intervention can only be done before judgment in the trial court (and execution presupposes execution) Same rule applies to replevin
Sec. 15. Satisfaction of judgment out of property attached; return of sheriff. If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those of the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determine by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. Sec. 16. Balance due collected upon an execution; excess delivered to judgment obligor. After realizing upon all the property attached, including the proceed of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment, less the expenses of proceedings upon the judgment, any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment.
When the properties attached are not sufficient to satisfy the judgment, the court can proceed with ordinary execution to cover the balance.
Sec. 17. Recovery upon the counter-bond. When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. Sec. 18. Disposition of money deposited. Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro rendered to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. Sec. 19. Disposition of attached property where judgment is for party against whom attachment was issued. If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. Sec. 20. Claim for damages on account of improper, irregular or excessive attachment. An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties, setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom the attachment was issued, he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award.
If there is improper, irregular or excessive damages, damages can be recovered. How? By drawing on the bond. GR: Section 20 applies to all provisional remedies. o EXCEPT: support pendent lite. Where can you apply for it? o In the trial court. When? o During or after trial even within the reglementary period, or when appeal has been perfected, as LONG as it is pending, and not yet final and executory. What damages can be recovered? o As long as wrongful attachment: actual damages Evidence needed: fact of injury or loss, and amount thereof Unrealized profits can be recovered as long as there is independent evidence of mean income of the business undertaken o If none, then temperate damages na lang (Yu v. Ngo Yet Te, 2007) o If there is malicious attachment: actual, moral and exemplary o What about attorneys fees? GR: no attys fees when no moral or exemplary EXCEPTION; when a party incurs expenses to lift wrongfully issued writ of attachment
RULE 58 PRELIMINARY INJUNCTION
Section 1. Preliminary injunction defined; classes. A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. Sec. 2. Who may grant preliminary injunction. A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof.
Magic word: enjoin or stop
When to apply: any time before judgment or final order Who may grant: o Court where the action or proceeding What are the types of prelim injunction? o Preliminary injunction to prohibit or stop: maintain the status quo o Preliminary mandatory injunction: requires something to be performed or done to maintain the status quo o And you also have the restraining order which is issued to preserve the status quo until the hearing on the application for preliminary injunction. (Bacolod City Water v Labayen) Can there be a main action for injunction? o Yes, its an ordinary civil action which seeks a judgment for a final injunction. Different from a PI whose object is merely to preserve the status quo Requisites for a PI: o Clear and unmistakable right o Such right has been violated and invasion has been material and substantial o Urgent and permanent necessity for the writ to prevent great and irreparable injury (never quantify this or else its not great and irreparable) Can an injunction have an effect if enforced outside the judicial district? (enforced in Makati by a judge stationed in Benguet) o No, a writ can only be issued in the judicial region. Whats a status quo order? o Its not a PI, so the requirements for PI/TRO do NOT apply to it. o It can be applied in the TC or CA. it can be issued without a bond or without a fixed term. But in 2007 SC Circular: the requirements for TRO (bond and affidavit) must apply to status quo orders if issued for judicial or extrajudicial foreclosure of mortgage. Additional requirements: o Show actual payment of the loan o Mere claim that the interest is unconscionable or excessive does not justify the issuance of the PI unless the legal interest is paid.
Sec. 3. Grounds for issuance of preliminary injunction. A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.
Grounds: o Applicant entitled to the relief demanded and the whole or part of the relief is restraining or requiring the performance of an act or acts o The commission, continuance or non-performance of the acts will work injustice to the applicant o Someone is violating the rights of the applicant and it tends to render the judgment of the main case ineffectual What kind of evidence do you need to prove your case? o Only a sampling of evidence is needed. (Landbank v Continental, 2004) o You need not present evidence of the entire cause of action Except: If cause of action is same basis for the TRO (but be careful of prejudgment)
Sec. 4. Verified application and bond for preliminary injunction or temporary restraining order. A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court, the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or initiatory pleading and the applicants affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriffs return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. Sec. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or persons sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the twenty-day period, the court must order said party or person to show cause at a specified time and place, why the injunction should not be granted. The court shall also determine, within the same period, whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. However, subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single-sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance, but shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein. In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect, and no court shall have authority to extend or renew the same on the same ground for which it was issued. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining order issued by the Supreme Court or a member thereof shall be effective until further orders. The trial court, the Court of Appeals, the Sandiganbyan or the Court of Tax Appeals that issued a writ of preliminary injunction against a lower court, board, officer, or quasi-judicial agency shall decide the main case or petition within six (6) months from the issuance of the writ.
No preliminary injunction can be issued without notice and hearing. But for TROs, a court can issue a TRO without notice and hearing. TROs are issued to preserve the status quo until the hearing of the application for preliminary injunction which cannot be issued ex parte. o There are two kinds of TRO: The 72-hour TRO Ground: matter of extreme urgency and applicant will suffer grave injustice and irreparable injury Issued by the executive judge of a multi-sala court, or presiding judge of a single sala court ALWAYS without a hearing Only lasts for 72 hours. o Note: NOT 3 days, but 72 hours. (So make sure to file it on a Monday or Tuesday. If you file it on a Thursday, itll expire on a
weekend and you wont have a chance to extend it until Monday since no court on weekends.) It automatically expires after 72 hours. o But this can be extended to 20 days, how? The TRO, summons, complaint and NOTICE of RAFFLE will be given to the defendant The parties have to be present during raffle Within the 72 hours, the judge will conduct a summary hearing to determine whether the TRO should be extended to 20 days (including the 72 hours) Normal 20 day TRO Ground: great or irreparable injury Issued by regular court judge AFTER raffle o Two instances where the normal 20 day TRO will come about: Following the 72-hour TRO (thats why you need the notice of raffle) Following service of the complaint and summons (normal manner, when the case is not one of extreme urgency). Also without notice and hearing, but judges rarely do this since people might think badly of them Within the 20-day period, the court will determine if the preliminary injunction should be given (Bacolod City Water v Labayen, 2004) Only lasts for 20 days, can NOT be extended. It automatically expires. NOTE: Both TROs need a bond. Can TROs be issued by the court motu propio? o NO! TROs must be applied for. (Universal Motors v Rojas, 2005) Can a regular court judge issue a 72-hour TRO and say that it will stay effective until further orders? o NO! (Greenstar v Andiong, 2008) First, a regular court judge generally issue a 72-hour TRO. The executive judge does that. Second, theres no such thing as a TRO until further orders (except in the SC) Can the CA and SC issue TROs? o Yes. CA: lasts 60 days SC: until further orders Can you apply for a 2nd TRO after your first one expired? o Yes, if based on a different and new ground. What is the duty of the court who issued a PI? o Decide the main case within 6 monts. (See last paragraph)
Sec. 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or, if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified.
Ground to object: o Insufficiency of application (only a ground to DENY, not to dissolve) How to both object or dissolve: o File affidavits showing there was no reason for the PI o File counterbond and affidavit (and undergo a hearing) that the party will suffer more damage than the applicant will because of the PI
Sec. 7. Service of copies of bonds; effect of disapproval of same. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicants bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be.
If the bonds or counterbonds are insufficient, the PI can either be dissolved or granted, as the case may be.
Sec. 8. Judgment to include damages against party and sureties. At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. Sec. 9. When final injunction granted. If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction.
RULE 59 RECEIVERSHIP Section 1. Appointment of receiver. Upon a verified application, one or more receivers of the property subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or by the Supreme Court, or a member thereof, in the following cases: (a) When it appears from the verified application, and such other proof as the court may require, that the party applying for the appointment of a receiver has an interest in the property or fund which is the subject of the action or proceeding, and that such property or fund is in danger of being lost, removed, or materially injured unless a receiver be appointed to administer and preserve it; (b) When it appears in an action by the mortgagee for the foreclosure of a mortgage that the property is in danger of being wasted or dissipated or materially injured, and that its value is probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in the contract of mortgage; (c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the judgment, or to aid execution when the execution has been returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of the judgment, or otherwise to carry the judgment into effect; (d) Whenever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving, administering, or disposing of the property in litigation. During the pendency of an appeal, the appellate court may allow an application for the appointment of a receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.
Magic word: preserve! Salient features: o Only provisional remedy that can be applied for post-judgment and even if it is already final and executory.2 o Requires two bonds: Applicants bond (Sec 2) Receivers bond (Sec 4) Grounds: o Property is in danger of being lost o Property mortgaged is in danger of being wasted/dissipated and the security in the mortgage is not enough to cover the value of the application o Stipulation in a mortgage contract
Sec. 41. Appointment of receiver. The court may appoint a receiver of the property of the judgment obligor; and it may also forbid a transfer or other disposition of, or any interference with, the property of the judgment obligor not exempt from execution. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Preserve the property during appeal or to aid execution of judgment Other reasons the court finds that the appointment of a receiver is the most convenient and feasible means of administering the property Sequestration proceedings by the PCGG are akin to receivership and attachment. (Republic v Saludares, 2000) o o
Sec. 2. Bond on appointment of receiver. Before issuing the order appointing a receiver the court shall require the applicant to file a bond executed to the party against whom the application is presented, in an amount to be fixed by the court, to the effect that the applicant will pay such party all damages he may sustain by reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause; and the court may, in its discretion, at any time after the appointment, require an additional bond as further security for such damages. Sec. 3. Denial of application or discharge of receiver. The application may be denied, or the receiver discharged, when the adverse party files a bond executed to the applicant, in an amount to be fixed by the court, to the effect that such party will pay the applicant all damages he may suffer by reason of the acts, omissions, or other matters specified in the application as ground for such appointment. The receiver may also be discharged if it is shown that his appointment was obtained without sufficient cause.
Filing of a counterbond: o Discharges a receiver, or o Denies an application Receiver may also be discharged if it is shown that his appointment was without sufficient cause.
Sec. 4. Oath and bond of receiver. Before entering upon his duties, the receiver shall be sworn to perform them faithfully, and shall file a bond, executed to such person and in such sum as the court may direct, to the effect that he will faithfully discharge his duties in the action or proceeding and obey the orders of the court.
Can an agreement stipulate that the receivers bond can be dispensed with? o Yes. (Citibank v CA, 1999) But in that same case, the SC held that the receivership was defective because of the receivers failure to take the oath.
Sec. 5. Service of copies of bonds; effect of disapproval of same. The person filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy thereof on each interested party, who may except to its sufficiency or of the surety or sureties thereon. If either the applicants or the receivers bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the application shall be denied or the receiver discharged, as the case may be. If the bond of the adverse party is found to be insufficient in amount or the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the receiver shall be appointed or re-appointed, as the case may be. Sec. 6. General powers of receiver. Subject to the control of the court in which the action or proceeding is pending, a receiver shall have the power to bring and defend, in such capacity, actions in his own name; to take and keep possession of the property in controversy; to receive rents; to collect debts due to himself as receiver or to the fund, property, estate, person, or corporation of which he is the receiver; to compound for and compromise the same; to make transfers; to pay outstanding debts; to divide the money and other property that shall remain among the persons legally entitled to receive the same; and generally to do such acts respecting the property as the court may authorize. However, funds in the hands of a receiver may be invested only by order of the court upon the written consent of all the parties to the action. No action may be filed by or against a receiver without leave of the court which appointed him.
Receivership only covers acts of administration, receiver cant do acts of ownership
Sec. 7. Liability for refusal or neglect to deliver property to receiver. A person who refuses or neglects, upon reasonable demand, to deliver to the receiver all the property, money, books, deeds, notes, bills, documents and papers within his power or control, subject of or involved in the action or proceeding, or in case of disagreement, as determined and ordered by the court, may be punished for contempt and shall be liable to the receiver for the money or the value of the property and other things so refused or neglected to be surrendered, together with all damages
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro that may have been sustained by the party or parties entitled thereto as a consequence of such refusal or neglect. Sec. 8. Termination of receivership; compensation of receiver. Whenever the court, motu proprio or on motion of either party, shall determine that the necessity for a receiver no longer exists, it shall, after due notice to all interested parties and hearing, settle the accounts of the receiver, direct the delivery of the funds and other property in his possession to the person adjudged to be entitled to receive them, and order the discharge of the receiver from further duty as such. The court shall allow the receiver such reasonable compensation as the circumstances of the case warrant, to be taxed as costs against the defeated party, or apportioned, as justice requires. Sec. 9. Judgment to include recovery against sureties. The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure prescribed in section 20 of Rule 57.
RULE 60 REPLEVIN Section 1. Application. A party praying for the recovery of possession of personal property may, at the commencement of the action or at any time before answer, apply for an order for the delivery of such property to him, in the manner hereinafter provided.
Covers only personal property o Actually covers specific personal property When: at the commencement of the action or any time before answer o Compare to other prov rems, where you can apply anytime while the action is pending (or in receivership, even after) What if answer already given? Just go for attachment, but you wont get the specific property, and the grounds for issuance must be present. What if personal property is perishable? Go for attachment since it allows for the sale of the property. Just make sure the grounds are present. Replevin is a prov rem, remember that. The main action is recovery of possession of property.
Sec. 2. Affidavit and bond. The applicant must show by his own affidavit or that of some other person who personally knows the facts: (a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession thereof; (b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to the best of his knowledge, information, and belief; (c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from such seizure or custody; and (d) The actual market value of the property. The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the payment to the adverse party of such sum as he may recover from the applicant in the action.
What should the affidavit contain? o Applicant is the owner of the thing, or is entitled to possession thereof o Property is wrongfully detained If the detention is actually allowed by law, then no replevin (Twin Ace Holding v Rufina, 2006, wherein gin bottles were used and allowed by law to be used for storing suka and patis.) o Property is not lawfully taken Lawfully taken: levy, execution, custodia legis, tax assessment, under preliminary attachment Custodia legis: subjected to the official custody of judicial/executive officer in pursuance of his execution of a legal writ
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A bus impounded after an accident is not under lawful custody since there is no law authorizing such. It violates the Constitutional right of unlawful seizures. Hence, it can be subject to a replevin. (Superlines v PNCC, 2007) o Logs under DENR custody based on a lawful DENR order can NOT be released (Dagudag v Paderanga, 2008) o Evidence seized under search warrants or valid warrantless searches can NOT be released. o The FMV of the property How much is the bond? o DOUBLE the value of the property Only prov rem where its double the value o
Sec. 3. Order. Upon the filing of such affidavit and approval of the bond, the court shall issue an order and the corresponding writ of replevin describing the personal property alleged to be wrongfully detained and requiring the sheriff forthwith to take such property into his custody. Sec. 4. Duty of the sheriff. Upon receiving such order, the sheriff must serve a copy thereof on the adverse party, together with a copy of the application, affidavit and bond, and must forthwith take the property, if it be in the possession of the adverse party, or his agent, and retain it in his custody. If the property or any part thereof be concealed in a building or enclosure, the sheriff must demand its delivery, and if it be not delivered, he must cause the building or enclosure to be broken open and take the property into his possession. After the sheriff has taken possession of the property as herein provided, he must keep it in a secure place and shall be responsible for its delivery to the party entitled thereto upon receiving his fees and necessary expenses for taking and keeping the same. Sec. 5. Return of property. If the adverse party objects to the sufficiency of the applicants bond, or of the surety or sureties thereon, he cannot immediately require the return of the property, but if he does not so object, he may, at any time before the delivery of the property to the applicant, require the return thereof, by filing with the court where the action is pending a bond executed to the applicant, in double the value of the property as stated in the applicants affidavit for the delivery thereof to the applicant, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the adverse party, and by serving a copy of such bond on the applicant. Sec. 6. Disposition of property by sheriff. If within five (5) days after the taking of the property by the sheriff, the adverse party does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the adverse party so objects and the court affirms its approval of the applicants bond or approves a new bond, or if the adverse party requires the return of the property but his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the applicant. If for any reason the property is not delivered to the applicant, the sheriff must return it to the adverse party.
The adverse party can file a counterbond (worth double the value of the property) to prevent the delivery of the property by the sheriff to the applicant. (so, this can be availed of before the sheriff delivers the property to the applicant) o But if within 5 days: No objection is made Objection is made but is overruled by the court Counterbond is insufficient Then the property will be delivered to the applicant. o Whats your remedy if the property has already been delivered to the applicant? Intervene, but possession cant be given to you. Na-deliver na eh.
Sec. 7. Proceedings where property claimed by third person. If the property taken is claimed by any person other than the party against whom the writ of replevin had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds therefor, and serves such affidavit upon the sheriff while the latter has possession of the property and a copy thereof upon the applicant, the sheriff shall not be bound to keep the property under replevin or deliver it to the applicant unless the applicant or his agent, on demand of said sheriff, shall file a bond approved by the court to indemnify the third-party Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro claimant in a sum not less than the value of the property under replevin as provided in section 2 hereof. In case of disagreement as to such value, the court shall determine the same. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages, for the taking or keeping of such property, to any such thirdparty claimant if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the applicant from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of replevin is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the replevin, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose.
Similar to the rule in attachment (compare with execution)
Sec. 8. Return of papers. The sheriff must file the order, with his proceedings indorsed thereon, with the court within ten (10) days after taking the property mentioned therein. Sec. 9. Judgment. After trial of the issues, the court shall determine who has the right of possession to and the value of the property and shall render judgment in the alternative for the delivery thereof to the party entitled to the same, or for its value in case delivery cannot be made, and also for such damages as either party may prove, with costs. Sec. 10. Judgment to include recovery against sureties. The amount, if any, to be awarded to any party upon any bond filed in accordance with the provisions of this Rule, shall be claimed, ascertained, and granted under the same procedure as prescribed in section 20 of Rule 57. RULE 61 SUPPORT PENDENTE LITE Section 1. Application. At the commencement of the proper action or proceeding, or at any time prior to the judgment or final order, a verified application for support pendente lite may be filed by any party stating the grounds for the claim and the financial conditions of both parties, and accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 2. Comment. A copy of the application and all supporting documents shall be served upon the adverse party, who shall have five (5) days to comment thereon unless a different period is fixed by the court upon his motion. The comment shall be verified and shall be accompanied by affidavits, depositions or other authentic documents in support thereof. Sec. 3. Hearing. After the comment is filed, or after the expiration of the period for its filing, the application shall be set for hearing not more than three (3) days thereafter. The facts in issue shall be proved in the same manner as is provided for evidence on motions. Sec. 4. Order. The court shall determine provisionally the pertinent facts, and shall render such orders as justice and equity may require, having due regard to the probable outcome of the case and such other circumstances as may aid in the proper resolution of the question involved. If the application is granted, the court shall fix the amount of money to be provisionally paid or such other forms of support as should be provided, taking into account the necessities of the applicant and the resources or means of the adverse party, and the terms of payment or mode for providing the support. If the application is denied, the principal case shall be tried and decided as early as possible.
When: any time prior to judgment or final order How: verified application stating the grounds of the claim and the financial conditions of both parties o HOLD UP THERE, SON! Dont you need a bond?! No, sir. You dont. This is the ONLY prov rem that does not require a bond.
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Okay, but what if you were wrongfully compelled to give support3, what do you do? o Ask for reimbursement. (Sec 7) If action is still pending, apply for reimbursement in the same action. If there is judgment already, apply for it in a separate case. Can the court dissolve support pendente lite? o Yes. If there is no more reason to give such. Can the court give support in arrears? o YES! (Mangonon v CA, 2006, where a grandfather was asked to support his granddaughters education in the US)
Sec. 5. Enforcement of order. If the adverse party fails to comply with an order granting support pendente lite, the court shall, motu proprio or upon motion, issue an order of execution against him, without prejudice to his liability for contempt. When the person ordered to give support pendente lite refuses or fails to do so, any third person who furnished that support to the applicant may, after due notice and hearing in the same case, obtain a writ of execution to enforce his right of reimbursement against the person ordered to provide such support.
If there is refusal to comply with the court order to give support, what in the world happens? o The court can order execution (without prejudice to contempt). Interestingly: there are only TWO instances where there can be writ of execution even when there is no final judgment. When? Secret.4
Sec. 6. Support in criminal cases. In criminal actions where the civil liability includes support for the offspring as a consequence of the crime and the civil aspect thereof has not been waived, reserved or instituted prior to its filing, the accused may be ordered to provide support pendente lite to the child born to the offended party allegedly because of the crime. The application therefor may be filed successively by the offended party, her parents, grandparents or guardian and the State in the corresponding criminal case during its pendency, in accordance with the procedure established under this Rule.
Applied in rape cases. Application should be filed successively by the offended, her parents, grandparents or guardian and the State.
Sec. 7. Restitution. When the judgment or final order of the court finds that the person who has been providing support pendente lite is not liable therefor, it shall order the recipient thereof to return to the former the amounts already paid with legal interest from the dates of actual payment, without prejudice to the right of the recipient to obtain reimbursement in a separate action from the person legally obliged to give the support. Should the recipient fail to reimburse said amounts, the person who provided through same may likewise seek reimbursement thereof in a separate action from the person legally obliged to give such support.
BREAK MUNA!
SPECIAL CIVIL ACTIONS RULE 62 INTERPLEADER Section 1. When interpleader proper. Whenever conflicting claims upon the same subject matter are or may be made against a person who claims no interest whatever in the subject matter, or an interest which in whole or in part is not disputed by the claimants, he may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves.
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Like when you go to Maury and tells you, you are NOT the father. And you start jumping up and down like a madman. 1) Support pendente lite and 2) when the court finds out that the purported indigent party is not in fact an indigent party for purposes of filing fees
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 2. Order. Upon the filing of the complaint, the court shall issue an order requiring the conflicting claimants to interplead with one another. If the interests of justice so require, the court may direct in such order that the subject matter be paid or delivered to the court.
Why would one file an interpleader? o There are or may be conflicting claims upon the same subject matter o Against a person who either Claims NO interest, Or his interest is NOT disputed o The conflicting claimants are called to interplead and litigate amongst themselves Interpleader is proper not to protect a person against double liability but to protect him against double vexation in respect of one liability. o Proper when lessee does not know the person to whom rentals will be paid. (Ocampo v Tirona, 2005, where unlawful detainer was filed against a lessee who did not pay rent to the proper person. SC said the lessee should have filed for interpleader if she wasnt sure who to pay) Differentiate from intervention. o In intervention, there is already a pending case. o Here, the applicant still has to initiate the action.
Sec. 3. Summons. Summons shall be served upon the conflicting claimants, together with a copy of the complaint and order. Sec. 4. Motion to dismiss. Within the time for filing an answer, each claimant may file a motion to dismiss on the ground of impropriety of the interpleader action or on other appropriate grounds specified in Rule 16. The period to file the answer shall be tolled and if the motion is denied, the movant may file his answer within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. Sec. 5. Answer and other pleadings. Each claimant shall file his answer setting forth his claim within fifteen (15) days from service of the summons upon him, serving a copy thereof upon each of the other conflicting claimants who may file their reply thereto as provided by these Rules. If any claimant fails to plead within the time herein fixed, the court may, on motion, declare him in default and thereafter render judgment barring him from any claim in respect to the subject matter. The parties in an interpleader action may file counterclaims, cross-claims, third-party complaints and responsive pleadings thereto, as provided by these Rules.
Note that you can file counterclaims in your answer to an interpleader. o Failure to set up a compulsory counterclaim is a WAIVER to such claim. (Arreza v Diaz, 2001, where the losing party in an interpleader failed to raise a claim of reimbursement. After she lost, she filed a claim for reimbursement, but this was deemed waived)
Sec. 6. Determination. After the pleadings of the conflicting claimants have been filed, and pre-trial has been conducted in accordance with the Rules, the court shall proceed to determine their respective rights and adjudicate their several claims.
Does a writ of possession necessarily follow an adjudication on an interpleader? o No, not necessarily. Depends on the facts of the case. o In Maglente v Padilla (2007), the issue was who between 2 parties had the right of first refusal to purchase property. After the court ruled on the interpleader for one party, the winning party moved for a writ of possession. The SC ruled that the interpleader merely resolved the question of who could purchase the property, nothing more. Ownership had not yet transferred to the winning party, they only had the right to purchase the property.
Sec. 7. Docket and other lawful fees, costs and litigation expenses as liens. The docket and other lawful fees paid by the party who filed a complaint under this Rule, as well as the costs and litigation expenses, shall constitute a lien or charge upon the subject matter of the action, unless the court shall order otherwise.
The filing fees is paid by the party who filed the complaint.
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But he is entitled to a lien on the judgment award to reimburse him for the filing fees since he is not a real party in interest anyway.
RULE 63 DECLARATORY RELIEF AND SIMILAR REMEDIES Section 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, whose rights are affected by a statute, executive order or regulation, ordinance, or any other governmental regulation may, before breach or violation thereof, bring an action in the appropriate Regional Trial Court to determine any question of construction or validity arising, and for a declaration of his rights or duties, thereunder. An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought under this Rule.
Rule 63, Sec 1 covers scenarios: o Declaratory relief o Other similar remedies which can be brought under an action for declaratory relief reformation (remember Civil Code provisions on this one) quieting title removal of clouds5 consolidate ownership (usually in pacto de retro sales) Requisites for declaratory relief (Almeda v Bathala, 2008, where a lease contract was under issue): o Subject matter of the controversy must be a deed, will, contract or other written instrument, statute, EO, regulation or ordinance o Terms and the validity thereof are doubtful and require judicial construction o NO breach of the documents in question o Actual justiciable controversy or the ripening of one between adverse parties o Ripe for judicial determination o Adequate relief is not available elsewhere So if administrative remedies are still available, then declaratory relief improper. (Mejia v Gabayan, 2005) Purpose: o declaration of rights/duties o interpretation/construction o determination of validity Important that NO breach has happened yet. o In Malana v Tapa, 2009, an action for quieting title was brought under Rule 63, but the SC said it was improper because there was already a breach (refusal to vacate), so an action publiciana was the proper action. o So if there is a pending unlawful detainer case, declaratory relief will be improper as well. What if there was a breach? Before action filed: improper If it happened during the pendency of the case: the action will be converted to an ordinary civil action. (Sec 6) o In this case, you need to pay filing fees upon conversion. o Sir says the case is usually re-raffled upon conversion. Where do you file it? o It depends. If based on the first paragraph: RTC If based on the second paragraph: The rules on determining which court has jurisdiction must still be followed. If quieting of title of property only worth P410: MTC (Malana v Tappa) If reformation: RTC (since incapable of pecuniary estimation) Can you file a counterclaim to declaratory relief? o Yes. (PDIC v CA) Can there be execution in a declaratory relief?
what is a cloud now?
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Yes. (DBM v Manilas Finest, 2007, where police retirees moved for execution of adjusted retirement benefits based on a favorable judgment in a case of declaratory relief) Can you file a MTD based on failure to state a cause of action? o No, since no breach yet. o
Sec. 2. Parties. All persons who have or claim any interest which would be affected by the declaration shall be made parties; and no declaration shall, except as otherwise provided in these Rules, prejudice the rights of persons not parties to the action.
Failure to join parties who have any interest in the matter will NOT prejudice them. (Non-joinder is a ground for dismissal) o Except if action is quasi-in-rem (Atty. Guevara) o
Sec. 3. Notice on Solicitor General. In any action which involves the validity of a statute, executive order or regulation, or any other governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such question. Sec. 4. Local government ordinances. In any action involving the validity of a local government ordinance, the corresponding prosecutor or attorney of the local governmental unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified and entitled to be heard.
Statute, EO or regulation: notify the OSG Local ordinance: o Validity: notify the respective prosecutor o Constitutionality: notify the OSG
Sec. 5. Court action discretionary. Except in actions falling under the second paragraph of section 1 of this Rule, the court, motu proprio or upon motion, may refuse to exercise the power to declare rights and to construe instruments in any case where a decision would not terminate the uncertainty or controversy which gave rise to the action, or in any case where the declaration or construction is not necessary and proper under the circumstances.
For Par 1 of Sec 1: Court can motu propio or upon motion refuse to exercise its power if o Would not terminate the uncertainty o Declaration not necessary and proper But for Par 2 of Sec 1 (reformation, quieting title, etc): Court action is mandatory
Sec. 6. Conversion into ordinary action. If before the final termination of the case, a breach or violation of an instrument or a statute, executive order or regulation, ordinance, or any other governmental regulation should take place, the action may thereupon be converted into an ordinary action, and the parties shall be allowed to file such pleadings as may be necessary or proper. RULE 64 REVIEW OF JUDGMENTS AND FINAL ORDERS OR RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND THE COMMISSION ON AUDIT Section 1. Scope. This Rule shall govern the review of judgments and final orders or resolutions of the Commission on Elections and the Commission on Audit. Sec. 2. Mode of review. A judgment or final order or resolution of the Commission on Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme Court on certiorari under Rule 65, except as hereinafter provided. Sec. 3. Time to file petition. The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. Sec. 4. Docket and other lawful fees. Upon the filing of the petition, the petitioner shall pay to the clerk of court the docket and other lawful fees and deposit the amount of P500.00 for costs. Sec. 5. Form and contents of petition. The petition shall be verified and filed in eighteen (18) legible copies. The petition shall name the aggrieved party as petitioner and shall join as respondents the Commission concerned and the person or persons interested in sustaining the judgment, final order or resolution a quo. The petition shall state the facts with certainty, present clearly the issues involved, set forth the grounds and brief arguments relied upon for review, and pray for judgment annulling or modifying the questioned judgment, final order or resolution. Findings of fact of the Commission supported by substantial evidence shall be final and non-reviewable. The petition shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, final order or resolution subject thereof, together with certified true copies of such material portions of the record as are referred to therein and other documents relevant and pertinent thereto. The requisite number of copies of the petition shall contain plain copies of all documents attached to the original copy of said petition. The petition shall state the specific material dates showing that it was filed within the period fixed herein, and shall contain a sworn certification against forum shopping as provided in the third paragraph of section 3, Rule 46. The petition shall further be accompanied by proof of service of a copy thereof on the Commission concerned and on the adverse party, and of the timely payment of docket and other lawful fees. The failure of petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. Sec. 6. Order to comment. If the Supreme Court finds the petition sufficient in form and substance, it shall order the respondents to file their comments on the petition within ten (10) days from notice thereof; otherwise, the Court may dismiss the petition outright. The Court may also dismiss the petition if it was filed manifestly for delay, or the questions raised are too unsubstantial to warrant further proceedings. Sec. 7. Comments of respondents. The comments of the respondents shall be filed in eighteen (18) legible copies. The original shall be accompanied by certified true copies of such material portions of the record as are referred to therein together with other supporting papers. The requisite number of copies of the comments shall contain plain copies of all documents attached to the original and a copy thereof shall be served on the petitioner. No other pleading may be filed by any party unless required or allowed by the Court. Sec. 8. Effect of filing. The filing of a petition for certiorari shall not stay the execution of the judgment or final order or resolution sought to be reviewed, unless the Supreme Court shall direct otherwise upon such terms as it may deem just. Sec. 9. Submission for decision. Unless the Court sets the case for oral argument, or requires the parties to submit memoranda, the case shall be deemed submitted for decision upon the filing of the comments on the petition, or of such other pleadings or papers as may be required or allowed, or the expiration of the period to do so.
This is actually a petition for certiorari which will get you straight to the SC. It has the same requisites as Rule 65. Take note: 30 day NON-extendible period o The period will be interrupted if you file an MR. BUT the Neypes ruling will NOT apply, so if youre MR is denied, you only get the remaining period (which shouldnt be less than 5 days). Only covers decisions by the: o COMELEC o COA Like in Rule 43, ALL attachments must be certified true copies.
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Since youre coming from a quasi judicial agency and the court has no way of getting these documents internally.
RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS
This is NOT an appeal. Ordinarily filed with the CA first, and then the SC. Rule 65 is a three-headed monster: o Certiorari o Prohibition o Mandamus For all three, it is important to refer to Rule 46, Sec 3 since Rule 65 is an original action6 o You need to serve the petition to the other party. If not, dismissed. o Duplicate originals of the decisions assailed of, instead of certified true copies, are also allowed. (Rep v Carmel Development, 2002)
Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
Certiorari: o Against who: tribunal, board, officer o Questioning what: judicial or quasi-judicial o Relief sought for: nullify, set aside or modify the proceedings GR: no damages o Requisites: GADALEJ present No plain, available, speedy ordinary remedy available
Sec. 2. Petition for prohibition. When the proceedings of any tribunal, corporation, board, officer or person, whether exercising judicial, quasi-judicial or ministerial functions, are without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein, or otherwise granting such incidental reliefs as law and justice may require. The petition shall likewise be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46. Sec. 3. Contents and filing of petition; effect of non-compliance with requirements. The petition shall contain the full names and actual addresses of all the petitioners and respondents, a concise statement of the matters involved, the factual background of the case, and the grounds relied upon for the relief prayed for. It shall be filed in seven (7) clearly legible copies together with proof of service thereof on the respondent with the original copy intended for the court indicated as such by the petitioner, and shall be accompanied by a clearly legible duplicate original or certified true copy of the judgment, order, resolution, or ruling subject thereof, such material portions of the record as are referred to therein, and other documents relevant or pertinent thereto. The certification shall be accomplished by the proper clerk of court or by his duly authorized representative, or by the proper officer of the court, tribunal, agency or office involved or by his duly authorized representative. The other requisite number of copies of the petition shall be accompanied by clearly legible plain copies of all documents attached to the original. The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom. The petitioner shall pay the corresponding docket and other lawful fees to the clerk of court and deposit the amount of P500.00 for costs at the time of the filing of the petition. The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Prohibition: o Against who: tribunal, board, officer, corporation, person o Questioning what: judicial, quasi-judicial, or ministerial Ministerial: like registration or cancellation of title by the RD o Relief sought for: desist from further proceedings GR: No damages o Requisites: GADALEJ present No plain, available, speedy ordinary remedy available Hence, when the properties had already been levied, prohibition will be allowed. No other speedy ordinary remedy. (Quezon City v Bayantel, 2006, which was a tax case wherein Bayantels properties were already levied because of nonpayment of real property taxes. No need to exhaust admin remedies as well since question was purely on law)
Sec. 3. Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent. The petition shall also contain a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
Mandamus: o Against who: tribunal, board, officer, corporation, person o Questioning what: Ministerial function, or Exclusion of another from the use and enjoyment of a right or office to which the other is entitled Compare this with Quo Warranto (where the one doing the excluding is actually keeping office. Here, it can be a third person doing the excluding) o Relief sought for: command to do the act required with damages o Requisites: No plain, available, speedy ordinary remedy available No need for GADALEJ Ministerial functions: law specifically enjoins as a duty resulting from an office, trust, or station o Ministerial when the discharge of the duty requires neither the exercise of official discretion nor judgment. (Esquivel v OMB, 2002) o The conditions of law must be complied with before mandamus can lie. (Lambino v Comelec, 2006, wherein the conditions for a proper initiative and referendum was not complied with, so mandamus will not lie.) Mandamus can lie to compel one to exercise discretion (as opposed to deciding in a certain manner). o So mandamus will lie against the OMB to act on a case. But mandamus will NOT lie against the NLRC to conduct a hearing, because theres no law compelling it to do so. Mandamus will NOT lie against a prosecutor to file an information because the filing is NOT a ministerial function. It is discretionary. (Esquivel v OMB) Manadmus will NOT lie to compel a party to a contract to abide by the contract. Thats not ministerial, its a contractual obligation. Remedy is specific performance.
Sec. 4. When and where to file the petition. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the petition shall be filed not later than sixty (60) days counted from the notice of the denial of the motion.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro If the petition relates to an act or an omission of a municipal trial court or of a corporation, a board, an officer or a person, it shall be filed with the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed with the Court of Appeals or with the Sandiganbayan, whether or not the same is in aid of the courts appellate jurisdiction. If the petition involves an act or an omission of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed with and be cognizable only by the Court of Appeals. In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with the Commission on Elections, in aid of its appellate jurisdiction.
Period to file: 60 days o If MR or MNT is filed and then denied, new period of 60 days.
Sec. 5. Respondents and costs in certain cases. When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings, and the costs awarded in such proceedings in favor of the petitioner shall be against the private respondents only, and not against the judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person impleaded as public respondent or respondents. Unless otherwise specifically directed by the court where the petition is pending, the public respondents shall not appear in or file an answer or comment to the petition or any pleading therein. If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. Sec. 6. Order to comment. If the petition is sufficient in form and substance to justify such process, the court shall issue an order requiring the respondent or respondents to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto. In petitions for certiorari before the Supreme Court and the Court of Appeals, the provisions of section 2, Rule 56, shall be observed. Before giving due course thereto, the court may require the respondents to file their comment to, and not a motion to dismiss, the petition. Thereafter, the court may require the filing of a reply and such other responsive or other pleadings as it may deem necessary and proper. Sec. 7. Expediting proceedings; injunctive relief. The court in which the petition is filed may issue orders expediting the proceedings, and it may also grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights of the parties pending such proceedings. The petition shall not interrupt the course of the principal case, unless a temporary restraining order or a writ of preliminary injunction has been issued, enjoining the public respondent from further proceeding with the case. The public respondent shall proceed with the principal case within ten (10) days from the filing of a petition for certiorari with a higher court or tribunal, absent a temporary restraining order or a preliminary injunction, or upon its expiration. Failure of the public respondent to proceed with the principal case may be a ground for an administrative charge.
Important: even if Rule 65 is filed, the proceedings in the principal case should still continue. The public respondent should within 10 days continue with the principal case. o UNLESS a TRO or PI has been issued. Note this for purposes of right to speedy trial in criminal procedure.
Sec. 8. Proceedings after comment is filed. After the comment or other pleadings required by the court are filed, or the time for the filing thereof has expired, the court may hear the case or require the parties to submit memoranda. If, after such hearing or filing of memoranda or upon the expiration of the period for filing, the court finds that the allegations of the petition are true, it shall render judgment for such relief to which the petitioner is entitled. However, the court may dismiss the petition if it finds the same patently without merit or prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to require consideration. In such event, the court may award in favor of the respondent treble costs solidarily against the petitioner and counsel, in addition to subjecting counsel to administrative sanctions under Rules 139 and 139-B of the Rules of Court. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary sanctions or measures on erring lawyers for patently dilatory and unmeritorious petitions for certiorari.
Court can dismiss the petition if its patently without merit or made for delay or too unsubstantial. o Treble costs can be awarded against the petitioner and counsel. o Counsel can also be disciplined.
Sec. 9. Service and enforcement of order or judgment. A certified copy of the judgment rendered in accordance with the last preceding section shall be served upon the court, quasi-judicial agency, tribunal, corporation, board, officer or person concerned in such manner as the court may direct, and disobedience thereto shall be punished as contempt. An execution may issue for any damages or costs awarded in accordance with section 1 of Rule 39.
RULE 66 QUO WARRANTO Section 1. Action by Government against individuals. An action for the usurpation of a public office, position or franchise may be commenced by a verified petition brought in the name of the Republic of the Philippines against: (a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or franchise; (b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for the forfeiture of his office; or (c) An association which acts as a corporation within the Philippines without being legally incorporated or without lawful authority so to act. Sec. 2. When Solicitor General or public prosecutor must commence action. The Solicitor General or a public prosecutor, when directed by the President of the Philippines, or when upon complaint or otherwise he has good reason to believe that any case specified in the preceding section can be established by proof, must commence such action. Sec. 3. When Solicitor General or public prosecutor may commence action with permission of court. The Solicitor General or a public prosecutor may, with the permission of the court in which the action is to be commenced, bring such an action at the request and upon the relation of another person; but in such case the officer bringing it may first require an indemnity for the expenses and costs of the action in an amount approved by and to be deposited in the court by the person at whose request and upon whose relation the same is brought. Sec. 4. When hearing had on application for permission to commence action. Upon application for permission to commence such action in accordance with the next preceding section, the court shall direct that notice be given to the respondent so that he may be heard in opposition thereto; and if permission is granted, the court shall issue an order to that effect, copies of which shall be served on all interested parties, and the petition shall then be filed within the period ordered by the court. Sec. 5. When an individual may commence such an action. A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action therefor in his own name.
Quo warranto is a prerogative writ by which the Government can call upon any person to show by what warrant he holds a public office or exercises a pubic franchise. Who commences an action for quo warranto? o The President, directing the OSG o The OSG, in the name of the government when he has good reason o the OSG, upon the relation and request of another person Why? o Usurpation of public office, position or franchise o Public officer does an act which constitutes a ground for forfeiture of his office o Association not duly or legally incorporated or without lawful authority as to act Like when a GOCC offends against its charter (Divinagracia v CBS, 2009) or when a corporation de factos existence is impugned Can an individual himself commence an action without help from the OSG? o Yes. Under what ground?
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Only when he claims to be entitled to a public office or position usurped by another (Sec 5) The person instituting in his own behalf must claim and be able to show that he is entitled to the office, otherwise the action may be dismissed at any stage. (Liban v Gordon, 2009, where Liban wanted Gordon to forfeit his seat in the Senate, but Liban wasnt entitled to it anyway, so Liban had no standing to file quo warranto)
Sec. 6. Parties and contents of petition against usurpation. When the action is against a person for usurping a public office, position or franchise, the petition shall set forth the name of the person who claims to be entitled thereto, if any, with an averment of his right to the same and that the respondent is unlawfully in possession thereof. All persons who claim to be entitled to the public office, position or franchise may be made parties, and their respective rights to such public office, position or franchise determined, in the same action. Sec. 7. Venue. An action under the preceding six sections can be brought only in the Supreme Court, the Court of Appeals, or in the Regional Trial Court exercising jurisdiction over the territorial area where the respondent or any of the respondents resides, but when the Solicitor General commences the action, it may be brought in a Regional Trial Court in the City of Manila, in the Court of Appeals, or in the Supreme Court.
Where o o o
do you file? RTC where RESPONDENT resides CA SC Special rule: BUT if the OSG commences the action, it may be filed in the RTC of Manila
Sec. 8. Period for pleadings and proceedings may be reduced; action given precedence. The court may reduce the period provided by these Rules for filing pleadings and for all other proceedings in the action in order to secure the most expeditious determination of the matters involved therein consistent with the rights of the parties. Such action may be given precedence over any other civil matter pending in the court. Sec. 9. Judgment where usurpation found. When the respondent is found guilty of usurping, intruding into, or unlawfully holding or exercising a public office, position or franchise, judgment shall be rendered that such respondent be ousted and altogether excluded therefrom, and that the petitioner or relator, as the case may be, recover his costs. Such further judgment may be rendered determining the respective rights in and to the public office, position or franchise of all the parties to the action as justice requires. Sec. 10. Rights of persons adjudged entitled to public office; delivery of books and papers; damages. If judgment be rendered in favor of the person averred in the complaint to be entitled to the public office he may, after taking the oath of office and executing any official bond required by law, take upon himself the execution of the office, and may immediately thereafter demand of the respondent all the books and papers in the respondents custody or control appertaining to the office to which the judgment relates. If the respondent refuses or neglects to deliver any book or paper pursuant to such demand, he may be punished for contempt as having disobeyed a lawful order of the court. The person adjudged entitled to the office may also bring action against the respondent to recover the damages sustained by such person by reason of the usurpation.
Those who are adjudged entitled to office have a right to the delivery of books and papers. o If the respondent neglects to deliver the books, he may be punished for contempt. The person adjudged entitled to office will also have a right to damages (see next section).
Sec. 11. Limitations. Nothing contained in this Rule shall be construed to authorize an action against a public officer or employee for his ouster from office unless the same be commenced within one (1) year after the cause of such ouster, or the right of the petitioner to hold such office or position, arose; nor to authorize an action for damages in accordance with the provisions of the next preceding section unless the same be commenced within one (1) year after the entry of the judgment establishing the petitioners right to the office in question.
Prescriptive period for quo warranto: 1 year from the cause of such ouster or the right of the petitioner arose
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Prescriptive period to recover damages from a quo warranto judgment: 1 year from entry of judgment
Sec. 12. Judgment for costs. In an action brought in accordance with the provisions of this Rule, the court may render judgment for costs against either the petitioner, the relator, or the respondent, or the person or persons claiming to be a corporation, or may apportion the costs, as justice requires.
RULE 67 EXPROPRIATION Section 1. The complaint. The right of eminent domain shall be exercised by the filing of a verified complaint which shall state with certainty the right and purpose of expropriation, describe the real or personal property sought to be expropriated, and join as defendants all persons owning or claiming to own, or occupying, any part thereof or interest therein, showing, so far as practicable, the separate interest of each defendant. If the title to any property sought to be expropriated appears to be in the Republic of the Philippines, although occupied by private individuals, or if the title is otherwise obscure or doubtful so that the plaintiff cannot with accuracy or certainty specify who are the real owners, averment to that effect shall be made in the complaint.
Who can expropriate? o National government o LGU o Government instrumentality Where do you file? o RTC has original jurisdiction, no matter the value of the property to be expropriated since the focus here is on the exercise of the right and power to expropriate. What must be alleged? o Right and purpose of expropriation o Description of the property o Names of persons: Owning or claiming to own it, or Possessing it, or Having interest over it o Must be VERIFIED. What if the property sought to be expropriated appears in the name of the Philippines? o The Republic can still file a complaint against the private persons occupying the property. In such a case, the owner of the property is NOT an indispensable party. (Republic v Mangotara, 2010) o Hence, the filing of a complaint for reversion does not preclude the institution for an action for expropriation. Even if the land is reverted back to the State, the same may still be subject to expropriation as against the occupants thereof. (Mangotara) Can the complaint be withdrawn? o Yes, as long as there is no order of expropriation yet. What if things were demolished? Government may be liable for damages. What if zombies were found? Then run for your life. Or brisk walk (since they dont really run, UNLESS 28 Days Later scenario, wherein zombies actually run.) o Once there is an order of expropriation, it can no longer be withdrawn. Two stages of expropriation: o Validity of expropriation o Determination of just compensation Does expropriation have to be actual taking of the property? o NO. It can involve a substantial restriction or limitation of the property rights of a party. o In NPC v Santa Loro (2008), the NPC traversed the partys property with transmission lines. NPC claimed it was only an easement and only wanted to pay 10% of the market value of the land. The SC said it was expropriation and made it liable for just compensation.
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Sec. 2. Entry of plaintiff upon depositing value with authorized government depositary. Upon the filing of the complaint or at any time thereafter and after due notice to the defendant, the plaintiff shall have the right to take or enter upon the possession of the real property involved if he deposits with the authorized government depositary an amount equivalent to the assessed value of the property for purposes of taxation to be held by such bank subject to the orders of the court. Such deposit shall be in money, unless in lieu thereof the court authorizes the deposit of a certificate of deposit of a government bank of the Republic of the Philippines payable on demand to the authorized government depositary. If personal property is involved, its value shall be provisionally ascertained and the amount to be deposited shall be promptly fixed by the court. After such deposit is made the court shall order the sheriff or other proper officer to forthwith place the plaintiff in possession of the property involved and promptly submit a report thereof to the court with service of copies to the parties.
GR: entry only upon judgment and payment of just compensation EX: Immediate entry is allowed but it depends on the situation and the rules applicable: o Under Rule 67: Filing of the complaint and due notice to the defendant, and Deposit with the authorized government depositary an amount equal to the assessed value of the property o Under the LGC: Filing of complaint for expropriation sufficient in form and substance, and Deposit of amount equivalent to 15% of the FMV of the property to be expropriated, based on the latest tax declaration Used in Bardillon v Bgy Masili of Calamba (2003), where the Barangay was given a writ of possession after complying with the LGC requirements. o Under RA 8974 (which applies to national government infrastructure projects)7: Filing of complaint Immediate payment of 100% zonal or market value of the property and the improvements If there is no zonal value and the expropriation is of utmost important: filing of complaint and payment of proferred value Seen in Republic v Holy Trinity, where land was expropriated to expand NLEX For personal property, the value is provisionally ascertained for deposit
Sec. 3. Defenses and objections. If a defendant has no objection or defense to the action or the taking of his property, he may file and serve a notice of appearance and a manifestation to that effect, specifically designating or identifying the property in which he claims to be interested, within the time stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting the same. If a defendant has any objection to the filing of or the allegations in the complaint, or any objection or defense to the taking of his property, he shall serve his answer within the time stated in the summons. The answer shall specifically designate or identify the property in which he claims to have an interest, Section 2. National Government Projects. - The term "national government projects" shall refer to all national government infrastructure, engineering works and service contracts, including projects undertaken by government-owned and controlled corporations,all projects covered by Republic Act No. 6957, as amended by Republic Act No. 7718, otherwise known as the Build-Operate-and-Transfer Law, and other related and necessary activities, such as site acquisition, supply and/or installation of equipment and materials, implementation, construction, completion, operation, maintenance, improvement, repair, and rehabilitation, regardless of the source of funding. Section 3. Modes of Accounting Real Property. - The government may acquire real property needed as right-of-way, site or location for any national government infrastructure project through donation, negotiated sale, expropriation or any other mode of acquisition as provided by law. Section 4. Guidelines for Expropriation Proceedings. - Whenever it is necessary to acquire real property for the right-of-way or location for any national government infrastructure project through expropriation, the appropriate implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines: (a) Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall immediately pay the owner of the property the amount equivalent to the sum of (1) one hundred percent (100%) of the value of the property based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the improvements and/or structures as determined under Section 7 hereof; (b) In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal valuation for said area; and (c) In case the completion of a government infrastructure project is of utmost urgency and importance, and there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the property its proffered value taking into consideration the standards prescribed in Section 5 hereof. Upon compliance with the guidelines abovementioned, the court shall immediately issue to the implementing agency an order to take possession of the property and start the implementation of the project. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro state the nature and extent of the interest claimed, and adduce all his objections and defenses to the taking of his property. No counterclaim, cross-claim or third-party complaint shall be alleged or allowed in the answer or any subsequent pleading. A defendant waives all defenses and objections not so alleged but the court, in the interest of justice, may permit amendments to the answer to be made not later than ten (10) days from the filing thereof. However, at the trial of the issue of just compensation, whether or not a defendant has previously appeared or answered, he may present evidence as to the amount of the compensation to be paid for his property, and he may share in the distribution of the award.
If the defendant does not object to the expropriation: o File and serve a notice of appearance and manifestation. o He will be entitled to notice of all proceedings. If the defendant objects: o File answer But NO counterclaim, cross-claim or third-party complaint allowed. o Objections not raised are waived, unless the court, in the interest of justice allows amendments IMPORTANT: Whether the defendant objects or not, he may still present evidence for the stage where JUST COMPENSATION is determined.
Sec. 4. Order of expropriation. If the objections to and the defenses against the right of the plaintiff to expropriate the property are overruled, or when no party appears to defend as required by this Rule, the court may issue an order of expropriation declaring that the plaintiff has a lawful right to take the property sought to be expropriated, for the public use or purpose described in the complaint, upon the payment of just compensation to be determined as of the date of the taking of the property or the filing of the complaint, whichever came first. A final order sustaining the right to expropriate the property may be appealed by any party aggrieved thereby. Such appeal, however, shall not prevent the court from determining the just compensation to be paid. After the rendition of such an order, the plaintiff shall not be permitted to dismiss or discontinue the proceeding except on such terms as the court deems just and equitable.
The court can issue an order of expropriation if it finds that the plaintiff has the lawful right to take property and that it is for public use. o This order can be appealed. BUT appeal will not prevent the court from determining the just compensation to be paid.
Sec. 5. Ascertainment of compensation. Upon the rendition of the order of expropriation, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to ascertain and report to the court the just compensation for the property sought to be taken. The order of appointment shall designate the time and place of the first session of the hearing to be held by the commissioners and specify the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. Objections to the appointment of any of the commissioners shall be filed with the court within ten (10) days from service, and shall be resolved within thirty (30) days after all the commissioners shall have received copies of the objections. Sec. 6. Proceedings by commissioners. Before entering upon the performance of their duties, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. Evidence may be introduced by either party before the commissioners who are authorized to administer oaths on hearings before them, and the commissioners shall, unless the parties consent to the contrary, after due notice to the parties to attend, view and examine the property sought to be expropriated and its surroundings, and may measure the same, after which either party may, by himself or counsel, argue the case. The commissioners shall assess the consequential damages to the property not taken and deduct from such consequential damages the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 7. Report by commissioners and judgment thereupon. The court may order the commissioners to report when any particular portion of the real estate shall have been passed upon by them, and may render judgment upon such partial report, and direct the commissioners to proceed with their work as to subsequent portions of the property sought to be expropriated, and may from time to time so deal with such property. The commissioners shall make a full and accurate report to the court of all their proceedings, and such proceedings shall not be effectual until the court shall have accepted their report and rendered judgment in accordance with their recommendations. Except as otherwise expressly ordered by the court, such report shall be filed within sixty (60) days from the date the commissioners were notified of their appointment, which time may be extended in the discretion of the court. Upon the filing of such report, the clerk of the court shall serve copies thereof on all interested parties, with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. Sec. 8. Action upon commissioners report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after all the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, after hearing, accept the report and render judgment in accordance therewith; or, for cause shown, it may recommit the same to the commissioners for further report of facts; or it may set aside the report and appoint new commissioners; or it may accept the report in part and reject it in part; and it may make such order or render such judgment as shall secure to the plaintiff the property essential to the exercise of his right of expropriation, and to the defendant just compensation for the property so taken.
Just compensation must be the value of the property: o the date of the taking of the property or o the filing of the complaint, whichever came first. What about interests? o Interest is to be imposed on the just compensation ONLY in case of delay in its payment. o If the property is taken for public use BEFORE compensation is deposited with the court, the final compensation must include interests on its just value, to be computed from the time the property is take up to the time when compensation is actually paid or deposited with the court. (Apo Fruits v CA, 2009) o Differentiate with Republic v. Holy Trinity (2008): Interests earned from the bank deposit of the just compensation is owned by the land owner, not the government. The court will appoint not more than 3 commissioners to ascertain the value of the property. o Non-compliance with this step is a denial of due process. o The commissioners shall assess: the consequential damages to the property not taken and deduct from such the consequential benefits to be derived by the owner from the public use or purpose of the property taken, the operation of its franchise by the corporation or the carrying on of the business of the corporation or person taking the property. IMPORTANT: But in no case shall the consequential benefits assessed exceed the consequential damages assessed, or the owner be deprived of the actual value of his property so taken. The court may accept or set aside the commissioners report. It can also recommit it to a new set of commissioners. It can even partially accept and partially reject the report. o Remember: determination of just compensation is a JUDICIAL FUNCTION, so the court has control over the commissioners. Does the court have control over NBA Commissioner David Stern? No. He can veto anything that he wants. What if the expropriator did not file a complaint and simply entered the property? o The occupant/owner can file for a complaint of damages or just compensation. Do you need commissioners to determine damages or just compensation? NO. When there is no action for expropriation and the case involves only a complaint for damages or just compensation, Rule 67 will not apply and a trial before commissioners is dispensable.
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But if commissioners are appointed without the objection of the parties, then its not improper. (Republic v CA, Reyes, 2009) It can even be by summary judgment. (NPC v Santa Loro, where there was no complaint for expropriation but there was a previous agreement with the land owners. The land of the neighbors was even used to peg the amount to be given the landowners)
Sec. 9. Uncertain ownership; conflicting claims. If the ownership of the property taken is uncertain, or there are conflicting claims to any part thereof, the court may order any sum or sums awarded as compensation for the property to be paid to the court for the benefit of the person adjudged in the same proceeding to be entitled thereto. But the judgment shall require the payment of the sum or sums awarded to either the defendant or the court before the plaintiff can enter upon the property, or retain it for the public use or purpose if entry has already been made. Sec. 10. Rights of plaintiff after judgment and payment. Upon payment by the plaintiff to the defendant of the compensation fixed by the judgment, with legal interest thereon from the taking of the possession of the property, or after tender to him of the amount so fixed and payment of the costs, the plaintiff shall have the right to enter upon the property expropriated and to appropriate it for the public use or purpose defined in the judgment, or to retain it should he have taken immediate possession thereof under the provisions of section 2 hereof. If the defendant and his counsel absent themselves from the court, or decline to receive the amount tendered, the same shall be ordered to be deposited in court and such deposit shall have the same effect as actual payment thereof to the defendant or the person ultimately adjudged entitled thereto. Sec. 11. Entry not delayed by appeal; effect of reversal. The right of the plaintiff to enter upon the property of the defendant and appropriate the same for public use or purpose shall not be delayed by an appeal from the judgment. But if the appellate court determines that plaintiff has no right of expropriation, judgment shall be rendered ordering the Regional Trial Court to forthwith enforce the restoration to the defendant of the possession of the property, and to determine the damages which the defendant sustained and may recover by reason of the possession taken by the plaintiff.
Filing an appeal by the defendant will NOT delay the entry upon the property. o But if reversed, the defendant will be restored to the possession and will be entitled to damages if the court deems so.
Sec. 12. Costs, by whom paid. The fees of the commissioners shall be taxed as a part of the costs of the proceedings. All costs, except those of rival claimants litigating their claims, shall be paid by the plaintiff, unless an appeal is taken by the owner of the property and the judgment is affirmed, in which event the costs of the appeal shall be paid by the owner. Sec. 13. Recording judgment, and its effect. The judgment entered in expropriation proceedings shall state definitely, by an adequate description, the particular property or interest therein expropriated, and the nature of the public use or purpose for which it is expropriated. When real estate is expropriated, a certified copy of such judgment shall be recorded in the registry of deeds of the place in which the property is situated, and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. Sec. 14. Power of guardian in such proceedings. The guardian or guardian ad litem of a minor or of a person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the expropriation for public use or purpose of property belonging to such minor or person judicially declared to be incompetent, which such minor or person judicially declared to be incompetent could do in such proceedings if he were of age or competent.
RULE 68 FORECLOSURE OF REAL ESTATE MORTGAGE Section 1. Complaint in action for foreclosure. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro In an action for the foreclosure of a mortgage or other encumbrance upon real estate, the complaint shall set forth the date and due execution of the mortgage; its assignments, if any; the names and residences of the mortgagor and the mortgagee; a description of the mortgaged property; a statement of the date of the note or other documentary evidence of the obligation secured by the mortgage, the amount claimed to be unpaid thereon; and the names and residences of all persons having or claiming an interest in the property subordinate in right to that of the holder of the mortgage, all of whom shall be made defendants in the action.
Where do you file? o Rule 68 does not provide for the venue of this SCA, but it is filed where the property is located. (what court? Depends on the assessed value) o If the contract of mortgage covers various properties in different provinces, file in proper court of any of the provinces covering the property. (Atty Guevara) There are two kinds of foreclosure: o Judicial foreclosure (Rule 68) o Extrajudicial foreclosure (Act 3135) In judicial foreclosure, you have to file a case and pay the filing fees In extrajudicial foreclosure, you filed a verified petition before the office of the clerk of court who acts as the ex-officio sheriff o The extrajudicial foreclosure is scheduled after paying of incidental fees and publication fees
Sec. 2. Judgment on foreclosure for payment or sale. If upon the trial in such action the court shall find the facts set forth in the complaint to be true, it shall ascertain the amount due to the plaintiff upon the mortgage debt or obligation, including interest and other charges as approved by the court, and costs, and shall render judgment for the sum so found due and order that the same be paid to the court or to the judgment obligee within a period of not less than ninety (90) days nor more than one hundred twenty (120) days from the entry of judgment, and that in default of such payment the property shall be sold at public auction to satisfy the judgment.
The court will determine the truthfulness of the complaint and will render the judgment, stating how much is due to the mortgagee. In JUDICIAL foreclosure, GR: no right of redemption. (Huerta Alba v CA, 2000) o You only have EQUITY of redemption where the judgment obligee has a period of 90-120 days from the entry of judgment to pay the debt. In truth, mortgagor has until the order of confirmation to pay the debt. (Sec 3) But the Tranq said just follow the 90-120 days for academic purposes. o EXCEPT: When the mortgagee is a bank, then theres a redemption period of 1 year. (Atty Tranq said that if the mortgagee is a bank and the mortgagor is a juridical person in a judicial foreclosure sale, only equity of redemption will apply. But a reading of the banking law will show otherwise.) In EXTRAJUDICIAL foreclosure, GR: theres a RIGHT of REDEMPTION which is 1 year from the registration of the confirmation of the sale. o EXCEPT: When the mortgagee is a bank and the mortgagor is a corporation, then the redemption period is only 3 months or before the registration of sale, whichever comes first.8
RA 8791, Section 47. Foreclosure of Real Estate Mortgage. - In the event of foreclosure, whether judicially or extra-judicially, of any mortgage on real estate which is security for any loan or other credit accommodation granted, the mortgagor or debtor whose real property has been sold for the full or partial payment of his obligation shall have the right within one year after the sale of the real estate, to redeem the property by paying the amount due under the mortgage deed, with interest thereon at rate specified in the mortgage, and all the costs and expenses incurred by the bank or institution from the sale and custody of said property less the income derived therefrom. However, the purchaser at the auction sale concerned whether in a judicial or extra-judicial foreclosure shall have the right to enter upon and take possession of such property immediately after the date of the confirmation of the auction sale and administer the same in accordance with law. Any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted pursuant to this provision shall be given due course only upon the filing by the petitioner of a bond in an amount fixed by the court conditioned that he will pay all the damages which the bank may suffer by the enjoining or the restraint of the foreclosure proceeding. Notwithstanding Act 3135, juridical persons whose property is being sold pursuant to an extrajudicial foreclosure, shall have the right to redeem the property in accordance with this provision until, but not after, the registration of the certificate of foreclosure sale with the applicable Register of Deeds which in no case shall be more than three (3) months after foreclosure, whichever is earlier. Owners of property that has been sold in a foreclosure sale prior to the effectivity of this Act shall retain their redemption rights until their expiration. (78a) Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Redemption Mortgagor/Mortgagee Individuals
JUDICIAL Banks 1 year from registration of sale 1 year
Corporations
Nonbanks 90-120 days from date of entry of judgment 90-120 days from date of entry of judgment
EXTRAJUDICIAL Banks 1 year
Nonbanks 1 year
3 months or before registration of sale, whichever comes first
1 year
Does the judicial foreclosure of a mortgage to the GSIS have a right of redemption? o NO. It is not a bank. (Bacaling v Muya, 2002)
Sec. 3. Sale of mortgaged property; effect. When the defendant, after being directed to do so as provided in the next preceding section, fails to pay the amount of the judgment within the period specified therein, the court, upon motion, shall order the property to be sold in the manner and under the provisions of Rule 39 and other regulations governing sales of real estate under execution. Such sale shall not affect the rights of persons holding prior encumbrances upon the property or a part thereof, and when confirmed by an order of the court, also upon motion, it shall operate to divest the rights in the property of all the parties to the action and to vest their rights in the purchaser, subject to such rights of redemption as may be allowed by law. Upon the finality of the order of confirmation or upon the expiration of the period of redemption when allowed by law, the purchaser at the auction sale or last redemptioner, if any, shall be entitled to the possession of the property unless a third party is actually holding the same adversely to the judgment obligor. The said purchaser or last redemptioner may secure a writ of possession, upon motion, from the court which ordered the foreclosure.
Upon the finality of the order of confirmation or upon expiration of the period of redemption (if banks), the purchaser shall be entitled to the possession of the property. o EXCEPT: if there is a third party actually holding the property adversely How to get possession? By applying for a writ of possession. The confirmation of sale retroacts to the date of the actual sale itself. (Bacaling v Muya) How is this different in extrajudicial foreclosure? o After foreclosure, the mortgagor still possesses the property during the redemption period. But a writ of possession can similarly be applied for. Note: if the mortgagee is a bank, the bank is entitled to the possession of the property immediately after the confirmation of the sale (whether it be judicial or extrajudicial foreclosure).
Sec. 4. Disposition of proceeds of sale. The amount realized from the foreclosure sale of the mortgaged property shall, after deducting the costs of the sale, be paid to the person foreclosing the mortgage, and when there shall be any balance or residue, after paying off the mortgage debt due, the same shall be paid to junior encumbrancers in the order of their priority, to be ascertained by the court, or if there be no such encumbrancers or there be a balance or residue after payment to them, then to the mortgagor or his duly authorized agent, or to the person entitled to it.
The proceeds of the sale are disposed as follows: o Deduct costs of sale o Pay to the person foreclosing the mortgage o Balance or residue goes to the junior encumbrances in order of priority o If no junior mortgagors, balance to mortgagor or his agent Do the junior mortgagors a right to the residue in extrajudicial foreclosure? o No. They only have the right to redeem the foreclosed properties. (Monzon v Relova, 2008)
Sec. 5. How sale to proceed in case the debt is not all due. If the debt for which the mortgage or encumbrance was held is not all due as provided in the judgment, as soon as a sufficient portion of the property has been sold to pay the total amount and the costs due, the sale shall terminate; and afterwards, as often as more becomes due for principal or interest and other valid charges, the court may, on motion, order more to be sold. But if the property cannot be sold in portions without prejudice to the parties, the whole shall be ordered to be sold in the first instance, Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro and the entire debt and costs shall be paid, if the proceeds of the sale be sufficient therefor, there being a rebate of interest where such rebate is proper. Sec. 6. Deficiency judgment. If upon the sale of any real property as provided in the next preceding section there be a balance due to the plaintiff after applying the proceeds of the sale, the court, upon motion, shall render judgment against the defendant for any such balance for which, by the record of the case, he may be personally liable to the plaintiff, upon which execution may issue immediately if the balance is all due at the time of the rendition of the judgment; otherwise, the plaintiff shall be entitled to execution at such time as the balance remaining becomes due under the terms of the original contract, which time shall be stated in the judgment.
If after the mortgage sale, there is still deficiency, the court will execute against the mortgagee.
Sec. 7. Registration. A certified copy of the final order of the court confirming the sale shall be registered in the registry of deeds. If no right of redemption exists, the certificate of title in the name of the mortgagor shall be cancelled, and a new one issued in the name of the purchaser. Where a right of redemption exists, the certificate of title in the name of the mortgagor shall not be cancelled, but the certificate of sale and the order confirming the sale shall be registered and a brief memorandum thereof made by the registrar of deeds upon the certificate of title. In the event the property is redeemed, the deed of redemption shall be registered with the registry of deeds, and a brief memorandum thereof shall be made by the registrar of deeds on said certificate of title. If the property is not redeemed, the final deed of sale executed by the sheriff in favor of the purchaser at the foreclosure sale shall be registered with the registry of deeds; whereupon the certificate of title in the name of the mortgagor shall be cancelled and a new one issued in the name of the purchaser. Sec. 8. Applicability of other provisions. The provisions of sections 31, 32 and 34 of Rule 39 shall be applicable to the judicial foreclosure of real estate mortgages under this Rule insofar as the former are not inconsistent with or may serve to supplement the provisions of the latter.
Rule 39 and some of its provisions apply to judicial foreclosure.9 Difference between judicial foreclosure and execution: o In judicial foreclosure, the mortgagor continues to be in possession of the property. Until the finality of the order of confirmation of sale (or expiration of the redemption period if allowed by law. o If execution, the obligor continues to be in possession of the property.
RULE 69 PARTITION Section 1. Complaint in action for partition of real estate.
Sec. 31. Manner of using premises pending redemption; waste restrained. Until the expiration of the time allowed for redemption, the court may, as in other proper cases, restrain the commission of waste on the property by injunction, on the application of the purchaser or the judgment obligee, with or without notice; but it is not waste for a person in possession of the property at the time of the sale, or entitled to possession afterwards, during the period allowed for redemption, to continue to use it in the same manner in which it was previously used; or to use it in the ordinary course of husbandry; or to make the necessary repairs to buildings thereon while he occupies the property. Sec. 33. Deed and possession to be given at expiration of redemption period; by whom executed or given. If no redemption be made within one (1) year from the date of the registration of the certificate of sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof given, and the time for redemption has expired, the last redemptioner is entitled to the conveyance and possession; but in all cases the judgment obligor shall have the entire period of one (1) year from the date of the registration of the sale to redeem the property. The deed shall be executed by the officer making the sale or by his successor in office, and in the latter case shall have the same validity as though the officer making the sale had continued in office and executed it. Upon the expiration of the right of redemption, the purchaser or redemptioner shall be substituted to and acquire all the rights, title, interest and claim of the judgment obligor to the property as of the time of the levy. The possession of the property shall be given to the purchaser or last redemptioner by the same officer unless a third party is actually holding the property adversely to the judgment obligor. Sec. 34. Recovery of price if sale not effective; revival of judgment. If the purchaser of real property sold on execution, or his successor in interest, fails to recover the possession thereof, or is evicted therefrom, in consequence of irregularities in the proceedings concerning the sale, or because the judgment has been reversed or set aside, or because the property sold was exempt from execution, or because a third person has vindicated his claim to the property, he may on motion in the same action or in a separate action recover from the judgment obligee the price paid, with interest, or so much thereof as has not been delivered to the judgment obligor; or he may, on motion, have the original judgment revived in his name for the whole price with interest, or so much thereof as has been delivered to the judgment obligor. The judgment so revived shall have the same force and effect as an original judgment would have as of the date of the revival and no more. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro A person having the right to compel the partition of real estate may do so as provided in this Rule, setting forth in his complaint the nature and extent of his title and an adequate description of the real estate of which partition is demanded and joining as defendants all other persons interested in the property. Sec. 2. Order for partition, and partition by agreement thereunder. If after the trial the court finds that the plaintiff has the right thereto, it shall order the partition of the real estate among all the parties in interest. Thereupon the parties may, if they are able to agree, make the partition among themselves by proper instruments of conveyance, and the court shall confirm the partition so agreed upon by all the parties, and such partition, together with the order of the court confirming the same, shall be recorded in the registry of deeds of the place in which the property is situated. A final order decreeing partition and accounting may be appealed by any party aggrieved thereby.
There are two kinds of partition: o Judicial partition o Extrajudicial partition (Rule 74) These are usually co-ownerships created by the death of an ascendant Requisites: No will, no debt, and if there are minors, there is appointment of guardians Must be contested within a period of 2 years In judicial partition, all persons interested in the property must be impleaded as indispensable parties o Absence of an indispensable party renders all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as tot hose present. (Sepulveda v Pelaez, 2005) o An answer can be filed. It will be followed by pre-trial. (even if the rules dont particularly say it) What kind of property? o Real and personal property. Who can institute an action for judicial partition? o Any co-owner Two stages in an action for JP: o Determination of existence of co-ownership The co-ownership is created either by agreement or operation f law o Partition of the property Can the parties agree on the partition? o Yes. If they cant agree, then it will be referred to commissioners. Compare with expropriation where the referral to the commissioners is mandatory. o Does the agreement have to be published? Yes, it will be treated as an extrajudicial partition, according to Atty. Tranquil, citing Rule 74, Sec 1 (see last paragraph)10 Do you need a bond? o JP: NO o EJP: Yes, if personal property
RULE 74 SUMMARY SETTLEMENT OF ESTATES Sec. 1. Extrajudicial settlement by agreement between heirs. - If the decedent left no will and no debts and the heirs are all of age, or the minors are represented by their judicial or legal representatives duly authorized for the purpose, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir, he may adjudicate to himself the entire estate by means of an affidavit filed in the office of the register of deeds. The parties to an extrajudicial settlement, whether by public instrument or by stipulation in a pending action for partition, or the sole heir who adjudicates the entire estate to himself by means of an affidavit shall file, simultaneously with and as a condition precedent to the filing of the public instrument, or stipulation in the action for partition, or of the affidavit in the office of the register of deeds, a bond with the said register of deeds, in an amount equivalent to the value of the personal property involved as certified to under oath by the parties concerned and conditioned upon the payment of any just claim that may be filed under Section 4 of this rule. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two (2) years after the death of the decedent. The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the next succeeding section; but no extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Sec. 3. Commissioners to make partition when parties fail to agree. If the parties are unable to agree upon the partition, the court shall appoint not more than three (3) competent and disinterested persons as commissioners to make the partition, commanding them to set off to the plaintiff and to each party in interest such part and proportion of the property as the court shall direct. Sec. 4. Oath and duties of commissioners. Before making such partition, the commissioners shall take and subscribe an oath that they will faithfully perform their duties as commissioners, which oath shall be filed in court with the other proceedings in the case. In making the partition, the commissioners shall view and examine the real estate, after due notice to the parties to attend at such view and examination, and shall hear the parties as to their preference in the portion of the property to be set apart to them and the comparative value thereof, and shall set apart the same to the parties in lots or parcels as will be most advantageous and equitable, having due regard to the improvements, situation and quality of the different parts thereof. Sec. 5. Assignment or sale of real estate by commissioners. When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be divided without prejudice to the interests of the parties, the court may order it assigned to one of the parties willing to take the same, provided he pays to the other parties such amounts as the commissioners deem equitable, unless one of the interested parties asks that the property be sold instead of being so assigned, in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court may determine.
Note: when the property cannot be divided without prejudicing the interests of the parties, the court may: o Assign it to any of the parties, provided he pays the other parties BUT if one party asks that it be sold instead, then it must be sold at a public sale.
Sec. 6. Report of commissioners; proceedings not binding until confirmed. The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court shall have accepted the report of the commissioners and rendered judgment thereon. Sec. 7. Action of the court upon commissioners report. Upon the expiration of the period of ten (10) days referred to in the preceding section, or even before the expiration of such period but after the interested parties have filed their objections to the report or their statement of agreement therewith, the court may, upon hearing, accept the report and render judgment in accordance therewith; or, for cause shown, recommit the same to the commissioners for further report of facts; or set aside the report and appoint new commissioners; or accept the report in part and reject it in part; and may make such order and render such judgment as shall effectuate a fair and just partition of the real estate, or of its value, if assigned or sold as above provided, between the several owners thereof. Sec. 8. Accounting for rent and profits in action for partition. In an action for partition in accordance with this Rule, a party shall recover from another his just share of rents and profits received by such other party from the real estate in question, and the judgment shall include an allowance for such rents and profits. Sec. 9. Power of guardian in such proceedings. The guardian or guardian ad litem of a minor or person judicially declared to be incompetent may, with the approval of the court first had, do and perform on behalf of his ward any act, matter, or thing respecting the partition of real estate, which the minor or person judicially declared to be incompetent could do in partition proceedings if he were of age or competent. Sec. 10. Costs and expenses to be taxed and collected. The court shall equitably tax and apportion between or among the parties the costs and expenses which accrue in the action, including the compensation of the commissioners, having regard to the interests of the parties, and execution may issue therefor as in other cases. Sec. 11. The judgment and its effect; copy to be recorded in registry of deeds. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro If actual partition of property is made, the judgment shall state definitely, by metes and bounds and adequate description, the particular portion of the real estate assigned to each party, and the effect of the judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real estate to the party making the payment, and the effect of the judgment shall be to vest in the party making the payment the whole of the real estate free from any interest on the part of the other parties to the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers making the payment or payments, free from the claims of any of the parties to the action. A certified copy of the judgment shall in either case be recorded in the registry of deeds of the place in which the real estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action. Sec. 12. Neither paramount rights nor amicable partition affected by this Rule. Nothing in this Rule contained shall be construed so as to prejudice, defeat, or destroy the right or title of any person claiming the real estate involved by title under any other person, or by title paramount to the title of the parties among whom the partition may have been made; nor so as to restrict or prevent persons holding real estate jointly or in common from making an amicable partition thereof by agreement and suitable instruments of conveyance without recourse to an action.
Paramount rights can NOT be prejudiced. o So if a person was not notified of the proceedings, he can invoke this section.
Sec. 13. Partition of personal property. The provisions of this Rule shall apply to partitions of estates composed of personal property, or of both real and personal property, in so far as the same may be applicable. RULE 70 FORCIBLE ENTRY AND UNLAWFUL DETAINER Section 1. Who may institute proceedings, and when. Subject to the provisions of the next succeeding section, a person deprived of the possession of any land or building by force, intimidation, threat, strategy, or stealth, or a lessor, vendor, vendee, or other person against whom the possession of any land or building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied, or the legal representatives or assigns of any such lessor, vendor, vendee, or other person, may, at any time within one (1) year after such unlawful deprivation or withholding of possession, bring an action in the proper Municipal Trial Court against the person or persons unlawfully withholding or depriving of possession, or any person or persons claiming under them, for the restitution of such possession, together with damages and costs. Sec. 2. Lessor to proceed against lessee only after demand. Unless otherwise stipulated, such action by the lessor shall be commenced only after demand to pay or comply with the conditions of the lease and to vacate is made upon the lessee, or by serving written notice of such demand upon the person found on the premises, or by posting such notice on the premises if no person be found thereon, and the lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of buildings.
Venue for ejectment cases o The MTC where the property or a portion thereof is situated. EX: if theres a stipulation Wait! Can the venue for ejectment cases be stipulated? o Yes! The rule governing ejectment cases merely states that it should be filed in the MTC, but it doesnt say which MTC. (Other words, jurisdiction is indicated, but the venue isnt.) Forcible entry o Possession by reason of force, intimidation, strategy, threat, or stealth (FISTS) o MOST IMPORTANT: prior physical possession and when it was deprived Important because it is the way the 1 year period is counted o Time: Within 1 year from entry into the property But if done by stealth 1 year from discovery of entry by stealth Unlawful detainer
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o o
Previous lawful possession but by violation of the contract or expiration of the period, it became unlawful! MOST IMPORTANT: a demand letter to: Pay unpaid rentals OR comply with the conditions of the lease, and Vacate There must always (and forever and ever) be a demand to vacate for unlawful detainer o If the demand letter is defective: dismissed since its a jurisdictional requirement Can you dispense with a demand? o Yes, when the ground is the expiration of the contract.11 Can you go to court immediately after you give the demand? Um, NO! You have to respect the following grace periods: 15 days in case of land 5 days in case of buildings Time: Within 1 year from last demand plus the grace period You count the 1-year period from the end of the grace period because only then does the staying become unlawful. (Atty. Guevarra)
Sec. 3. Summary procedure. Except in cases covered by the agricultural tenancy laws or when the law otherwise expressly provides, all actions for forcible entry and unlawful detainer, irrespective of the amount of damages or unpaid rentals sought to be recovered, shall be governed by the summary procedure hereunder provided. Sec. 4. Pleadings allowed. The only pleadings allowed to be filed are the complaint, compulsory counterclaim and cross-claim pleaded in the answer, and the answers thereto. All pleadings shall be verified. Sec. 5. Action on complaint. The court may, from an examination of the allegations in the complaint and such evidence as may be attached thereto, dismiss the case outright on any of the grounds for the dismissal of a civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith issue summons.
Look at Sec 5! The court may dismiss the complaint OUTRIGHT.
Sec. 6. Answer. Within ten (10) days from service of summons, the defendant shall file his answer to the complaint and serve a copy thereof on the plaintiff. Affirmative and negative defenses not pleaded therein shall be deemed waived, except lack of jurisdiction over the subject matter. Cross-claims and compulsory counterclaims not asserted in the answer shall be considered barred. The answer to counterclaims or cross-claims shall be served and filed within ten (10) days from service of the answer in which they are pleaded. Sec. 7. Effect of failure to answer. Should the defendant fail to answer the complaint within the period above provided, the court, motu proprio or on motion of the plaintiff, shall render judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for therein. The court may in its discretion reduce the amount of damages and attorneys fees claimed for being excessive or otherwise unconscionable, without prejudice to the applicability of section 3 (c), Rule 9 if there are two or more defendants.
Look DO we have here: cross-claims and compulsory counterclaims are allowed o But NO 3rd party complaints Failure to submit an answer will NOT lead to default, but a judgment of the court. o No need to declare the defendant in default (since its prohibited anyway)
Sec. 8. Preliminary conference; appearance of parties. Not later than thirty (30) days after the last answer is filed, a preliminary conference shall be held. The provisions of Rule 18 on pre-trial shall be applicable to the preliminary conference unless inconsistent with the provisions of this Rule.
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Art. 1669. If the lease was made for a determinate time, it ceases upon the day fixed, without the need of a demand. (1565) Art. 1670. If at the end of the contract the lessee should continue enjoying the thing leased for fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by either party has previously been given, it is understood that there is an implied new lease, not for the period of the original contract, but for the time established in Articles 1682 and 1687. The other terms of the original contract shall be revived.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro The failure of the plaintiff to appear in the preliminary conference shall be cause for the dismissal of his complaint. The defendant who appears in the absence of the plaintiff shall be entitled to judgment on his counterclaim in accordance with the next preceding section. All cross-claims shall be dismissed. If a sole defendant shall fail to appear, the plaintiff shall likewise be entitled to judgment in accordance with the next preceding section. This procedure shall not apply where one of two or more defendants sued under a common cause of action who had pleaded a common defense shall appear at the preliminary conference. No postponement of the preliminary conference shall be granted except for highly meritorious grounds and without prejudice to such sanctions as the court in the exercise of sound discretion may impose on the movant. Sec. 9. Record of preliminary conference. Within five (5) days after the termination of the preliminary conference, the court shall issue an order stating the matters taken up therein, including but not limited to: 1. Whether the parties have arrived at an amicable settlement, and if so, the terms thereof; 2. The stipulations or admissions entered into by the parties; 3. Whether, on the basis of the pleadings and the stipulations and admissions made by the parties, judgment may be rendered without the need of further proceedings, in which event the judgment shall be rendered within thirty (30) days from issuance of the order; 4. A clear specification of material facts which remain controverted; and 5. Such other matters intended to expedite the disposition of the case. Sec. 10. Submission of affidavits and position papers. Within ten (10) days from receipt of the order mentioned in the next preceding section, the parties shall submit the affidavits of their witnesses and other evidence on the factual issues defined in the order, together with their position papers setting forth the law and the facts relied upon by them. Sec. 11. Period for rendition of judgment. Within thirty (30) days after receipt of the affidavits and position papers, or the expiration of the period for filing the same, the court shall render judgment. However, should the court find it necessary to clarify certain material facts, it may, during the said period, issue an order specifying the matters to be clarified, and require the parties to submit affidavits or other evidence on the said matters within ten (10) days from receipt of said order. Judgment shall be rendered within fifteen (15) days after the receipt of the last affidavit or the expiration of the period for filing the same. The court shall not resort to the foregoing procedure just to gain time for the rendition of the judgment. Sec. 12. Referral for conciliation. Cases requiring referral for conciliation, where there is no showing of compliance with such requirement, shall be dismissed without prejudice, and may be revived only after that requirement shall have been complied with.
Failure of the plaintiff to appear in the preliminary conference: dismissal, and the defendant can get judgment on his counterclaim Can counsel go instead? o in Macasaet v Macasaet (2004), the SC allowed the party to be represented by his counsel via a SPA even if the rules on ejectment cases were silent about it. Note: after preliminary conference, even without position papers, the court can render judgment if it deems fit The court can also decide 30 days from the filing of the last judicial affidavit or position paper
Sec. 13. Prohibited pleadings and motions. The following petitions, motions, or pleadings shall not be allowed: 1. Motion to dismiss the complaint except on the ground of lack of jurisdiction over the subject matter, or failure to comply with section 12; 2. Motion for a bill of particulars; 3. Motion for new trial, or for reconsideration of a judgment, or for reopening of trial; 4. Petition for relief from judgment; 5. Motion for extension of time to file pleadings, affidavits or any other paper; 6. Memoranda; 7. Petition for certiorari, mandamus, or prohibition against any interlocutory order issued by the court; 8. Motion to declare the defendant in default; 9. Dilatory motions for postponement; 10. Reply; Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro 11. Third-party complaints; 12. Interventions.
Note: o
MTD is not allowed EXCEPT Lack of jurisdiction over the subject matter Failure to comply with a condition precedent
Sec. 14. Affidavits. The affidavits required to be submitted under this Rule shall state only facts of direct personal knowledge of the affiants which are admissible in evidence, and shall show their competence to testify to the matters stated therein. A violation of this requirement may subject the party or the counsel who submits the same to disciplinary action, and shall be cause to expunge the inadmissible affidavit or portion thereof from the record. Sec. 15. Preliminary injunction. The court may grant preliminary injunction, in accordance with the provisions of Rule 58 hereof, to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entry or unlawful detainer may, within five (5) days from the filing of the complaint, present a motion in the action for forcible entry or unlawful detainer for the issuance of a writ of preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within thirty (30) days from the filing thereof.
The court can grant preliminary injunctions in two cases: o Within 5 days from filing of the complaint: to recover possession in the pendency of the case o Within 10 days from the perfection of the appeal: If the court determines that the defendants appeal is merely dilatory or that the plaintiff is entitled to possession (Sec 20)
Sec. 16. Resolving defense of ownership. When the defendant raises the defense of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession. Sec. 17. Judgment. If after trial the court finds that the allegations of the complaint are true, it shall render judgment in favor of the plaintiff for the restitution of the premises, the sum justly due as arrears of rent or as reasonable compensation for the use and occupation of the premises, attorneys fees and costs. If it finds that said allegations are not true, it shall render judgment for the defendant to recover his costs. If a counterclaim is established, the court shall render judgment for the sum found in arrears from either party and award costs as justice requires. Sec. 18. Judgment conclusive only on possession; not conclusive in actions involving title or ownership. The judgment rendered in an action for forcible entry or detainer shall be conclusive with respect to the possession only and shall in no wise bind the title or affect the ownership of the land or building. Such judgment shall not bar an action between the same parties respecting title to the land or building. The judgment or final order shall be appealable to the appropriate Regional Trial Court which shall decide the same on the basis of the entire record of the proceedings had in the court of origin and such memoranda and/or briefs as may be submitted by the parties or required by the Regional Trial Court.
In FE and UD cases, the court can touch on the question of ownership but only provisionally, mainly to determine who is entitled to posseion. o But the determination is NOT binding/prejudicial to future questions of ownership
Sec. 19. Immediate execution of judgment; how to stay same. If judgment is rendered against the defendant, execution shall issue immediately upon motion, unless an appeal has been perfected and the defendant to stay execution files a sufficient supersedeas bond, approved by the Municipal Trial Court and executed in favor of the plaintiff to pay the rents, damages, and costs accruing down to the time of the judgment appealed from, and unless, during the pendency of the appeal, he deposits with the appellate court the amount of rent due from time to time under the contract, if any, as determined by the judgment of the Municipal Trial Court. In the absence of a contract, he shall deposit with the Regional Trial Court the reasonable value of the use and occupation of the premises for the preceding month or period at the rate determined by the judgment of the lower court on or before the tenth day of each succeeding month or period. The supersedeas bond shall be transmitted by the Municipal Trial Court, with the other papers, to the clerk of the Regional Trial Court to which the action is appealed.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro All amounts so paid to the appellate court shall be deposited with said court or authorized government depositary bank, and shall be held there until the final disposition of the appeal, unless the court, by agreement of the interested parties, or in the absence of reasonable grounds of opposition to a motion to withdraw, or for justifiable reasons, shall decree otherwise. Should the defendant fail to make the payments above prescribed from time to time during the pendency of the appeal, the appellate court, upon motion of the plaintiff, and upon proof of such failure, shall order the execution of the judgment appealed from with respect to the restoration of possession, but such execution shall not be a bar to the appeal taking its course until the final disposition thereof on the merits. After the case is decided by the Regional Trial Court, any money paid to the court by the defendant for purposes of the stay of execution shall be disposed of in accordance with the provisions of the judgment of the Regional Trial Court. In any case wherein it appears that the defendant has been deprived of the lawful possession of land or building pending the appeal by virtue of the execution of the judgment of the Municipal Trial Court, damages for such deprivation of possession and restoration of possession may be allowed the defendant in the judgment of the Regional Trial Court disposing of the appeal. Sec. 20. Preliminary mandatory injunction in case of appeal. Upon motion of the plaintiff, within ten (10) days from the perfection of the appeal to the Regional Trial Court, the latter may issue a writ of preliminary mandatory injunction to restore the plaintiff in possession if the court is satisfied that the defendants appeal is frivolous or dilatory, or that the appeal of the plaintiff is prima facie meritorious. Sec. 21. Immediate execution on appeal to Court of Appeals or Supreme Court. The judgment of the Regional Trial Court against the defendant shall be immediately executory, without prejudice to a further appeal that may be taken therefrom.
The decision of the MTC is immediately executory. (interestingly, its executory BUT not final since you can still appeal) o BUT it can be stayed by: Filing a notice of appeal and paying filing fees Posting a supersedeas bond Which will cover the rentals in arrears Paying the rent due from the time of breach to the time of judgment Failure to pay will bring about a writ of execution against you Can you appeal the decision of the MTC? o Yes, you can to the RTC! But once the RTC makes a decision, its executory and cannot be stayed, even on appeal. (Uy v Santiago, 2000) From the RTC, where do you go and how? o CA via petition for review. Can you file a MR in the RTC? o Yes, because its acting in its appellate capacity and is no longer subject to rules of summary procedure. Can you file an MR? o NO. Prohibited pleading. How about certiorari? Nu-huh. What is accion publiciana? o Action to recover right to possess property o Filed in the RTC or MTC depending on property value o File within 10 years after possession was lost What is accion reivindicatoria? o Action to recover ownership of property o Follow same valuations for jurisdiction o Filed within 10 years or 30 years, as the case may be (depends if the defendant is in GF or BF) Who else are bound by the judgment (since its in personam, right?)? o Trespasser, squatter, or agent of defendant occupying the property to frustrate the judgment o Guest of the defendant or member of family o Sub-lessee, co-lessee o Transferee pendente lite or privy of defendant
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Will the filing of another action for annulment of sale, cancellation of title, etc. suspend the action fro ejectment? o No. Those all deal with ownership and ejectment is just a matter touching on possession so the actions can coincide.
RULE 71 CONTEMPT
Are you contempt with your life? (nyah!) Two kinds of contempt: o Direct o Indirect
Section 1. Direct contempt punished summarily. A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, or refusal to be sworn or to answer as a witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such court and punished by a fine not exceeding two thousand pesos or imprisonment not exceeding ten (10) days, or both, if it be a Regional Trial Court or a court of equivalent or higher rank, or by a fine not exceeding two hundred pesos or imprisonment not exceeding one (1) day, or both, if it be a lower court. Sec. 2. Remedy therefrom. The person adjudged in direct contempt by any court may not appeal therefrom, but may avail himself of the remedies of certiorari or prohibition. The execution of the judgment shall be suspended pending resolution of such petition, provided such person files a bond fixed by the court which rendered the judgment and conditioned that he will abide by and perform the judgment should the petition be decided against him.
Direct contempt o An act of disrespect in the presence of or so near the court o As to obstruct or interrupt the proceedings before the same Examples: o Disrespect towards the judge o Having an offensive personality towards others o Refusal to be sworn in or to answer o Refusal to subscribe an affidavit or deposition when lawfully required to do so (since a deposition officer is an extension of the judge Atty. Guevarra) o Wearing shorts in the court o Filing pleadings which contain baseless attacks on judges (Atty. Guevarra) o Cell phone keeps ringing o Dancing in the court o Farting and not admitting it Nature: Summary o No need for notice or hearing Penalty: o RTC and up: fine not exceeding P2000 and/or imprisonment not exceeding 10 days o MTC: fine not exceeding P200 and/or imprisonment not exceeding 1 day Remedy: o No appeal, only certiorari or prohibition o Stay execution by filing a bond
Sec. 3. Indirect contempt to be punished after charge and hearing. After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt: (a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; (b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule; (d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; (e) Assuming to be an attorney or an officer of a court, and acting as such without authority; (f) Failure to obey a subpoena duly served; (g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. But nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. Sec. 4. How proceedings commenced. Proceedings for indirect contempt may be initiated motu proprio by the court against which the contempt was committed by an order or any other formal charge requiring the respondent to show cause why he should not be punished for contempt. In all other cases, charges for indirect contempt shall be commenced by a verified petition with supporting particulars and certified true copies of documents or papers involved therein, and upon full compliance with the requirements for filing initiatory pleadings for civil actions in the court concerned. If the contempt charges arose out of or are related to a principal action pending in the court, the petition for contempt shall allege that fact but said petition shall be docketed, heard and decided separately, unless the court in its discretion orders the consolidation of the contempt charge and the principal action for joint hearing and decision. Sec. 5. Where charge to be filed. Where the charge for indirect contempt has been committed against a Regional Trial Court or a court of equivalent or higher rank, or against an officer appointed by it, the charge may be filed with such court. Where such contempt has been committed against a lower court, the charge may be filed with the Regional Trial Court of the place in which the lower court is sitting; but the proceedings may also be instituted in such lower court subject to appeal to the Regional Trial Court of such place in the same manner as provided in section 2 of this Rule. Sec. 6. Hearing; release on bail. If the hearing is not ordered to be had forthwith, the respondent may be released from custody upon filing a bond, in an amount fixed by the court, for his appearance at the hearing of the charge. On the day set therefor, the court shall proceed to investigate the charge and consider such comment, testimony or defense as the respondent may make or offer. Sec. 7. Punishment for indirect contempt. If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved. The writ of execution, as in ordinary civil actions, shall issue for the enforcement of a judgment imposing a fine unless the court otherwise provides. Sec. 8. Imprisonment until order obeyed. When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Sec. 9. Proceeding when party released on bail fails to answer. When a respondent released on bail fails to appear on the day fixed for the hearing, the court may issue another order of arrest or may order the bond for his appearance to be forfeited and confiscated, or both; and, if the bond be proceeded against, the measure of damages shall be the extent of the loss or injury sustained by the aggrieved party by reason of the misconduct for which the contempt charge was prosecuted, with the costs of the proceedings, and such recovery shall be for the benefit of the party injured. If there is no aggrieved party, the bond shall be liable and disposed of as in criminal cases. Sec. 10. Court may release respondent. The court which issued the order imprisoning a person for contempt may discharge him from imprisonment when it appears that public interest will not be prejudiced by his release. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Sec. 11. Review of judgment or final order; bond for stay. The judgment or final order of a court in a case of indirect contempt may be appealed to the proper court as in criminal cases. But execution of the judgment or final order shall not be suspended until a bond is filed by the person adjudged in contempt, in an amount fixed by the court from which the appeal is taken, conditioned that if the appeal be decided against him he will abide by and perform the judgment or final order.
Indirect contempt o Violation of an order or lawful process of the court Examples: o Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; o Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto; Use in ejectment cases! o Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1; o Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice; o Assuming to be an attorney or an officer of a court, and acting as such without authority; o Failure to obey a subpoena duly served; o The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him. How charged? o Formal charge of the judge motu propio against which the contempt was committed, So if the contempt was made against Judge Boyoyong in the RTC of QC, Judge Corpuz of RTC of Makati can not make the formal charge motu propio o Verified complaint filed and docketed separately; if incident to a case, with an option to consolidate with the main case (old rule where indirect contempt can be filed by mere motion is no longer existing) Note: NOT summary, needs notice and hearing Where do you file? o If against RTC (or a court of higher rank, or a person appointed by it), file in the RTC o If against the MTC, file in the RTC or the MTC (subject to appeal to the RTC) Penalty: o RTC and up: fine not exceeding P30000 and/or imprisonment not exceeding 6 months o MTC: fine not exceeding P5000 and/or imprisonment not exceeding 1 month o Note: When the contempt consists in the refusal or omission to do an act which is yet in the power of the respondent to perform, he may be imprisoned by order of the court concerned until he performs it. Since he is in imprison, he can have someone else do it on his behalf. Remedy: o Appeal o Judgment will only be stayed from being executed by posting a bond Can a retired judge be cited for indirect contempt? o Yes (Curata v PPA, 2009, wherein the judge disobeyed numerous orders of the CA)
Sec.12. Contempt against quasi-judicial entities. Unless otherwise provided by law, this Rule shall apply to contempt committed against persons, entities, bodies or agencies exercising quasi-judicial functions, or shall have suppletory effect to such rules as they may have adopted pursuant to authority granted to them by law to punish for contempt. The Regional Trial Court of the place wherein the contempt has been committed shall have jurisdiction over such charges as may be filed therefor.
For contempt in QJA: o Check the QJA rules first because that will govern. o In the absence thereof, Rule 71 will apply suppletorily.
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Special rule on venue: RTC where the contempt was committed Kape na muna sir!
CRIMINAL PROCEDURE VENUE IN CRIMINAL CASES
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Venue in criminal cases is jurisdictional o GR: The place where the crime is committed determines the jurisdiction of the court. So if the crime was committed in Makati, only the courts of Makati have jurisdiction. Compare with civil cases where venue can be agreed upon. EXCEPT: Transitory and continuing offenses, wherein one or more of the elements happened in different venues. o estafa, where the elements may be committed in different places (where deceit took place, or where damage suffered ) o BP 22 where you can file either in the place of issue of check or where the check was deposited and bounced (Isip v People, 2007, where the case was estafa-BP22 together and it was proven that the transaction happened in the ancestral home of the complainant, hence venue was there) Can an offense be committed outside the Philippines yet be filed here? o Yes, under: Article 2 of the RPC12 Human Security Law, covering acts of terrorism13 Read with Rule 110, Sec 15.14 o If offense committed in a train, car, plane, or vehicle in the course of its trip: wherever the vehicle passed during its trip; including the place of its departure and arrival o If offense committed on board a vessel: first port of entry or wher the vessel passed during the voyage o For Article 2: where the criminal action is first filed What if the hearings are conducted elsewhere? o Not an exception to the rule that venue is jurisdictional. o Mere transfer of venue, what was transferred was the venue of the hearing, but the place of institution was still the place where the crime was committed. Examples: Ampatuan case being heard in Manila; Mayor Sanchez being heard in Pasig instead of Laguna o Allowed under the Constitution, as long as the transfer is approved by the SC What determines the jurisdiction of the court?
RA 9372, SEC. 58. Extra-Territorial Application of this Act. Subject to the provision of an existing treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provisions of this Act shall apply: (1) to individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Philippines; (2) to individual persons who, although physically outside the territorial limits of the Philippines, commit, conspire or plot to commit any of the crimes defined and punished in this Act inside the territorial limits of the Philippines; (3) to individual persons who, although physically outside the territorial limits of the Philippines, commit any of the said crimes on board Philippine ship or Philippine airship; (4) to individual persons who commit any of said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity; (5) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime; and (6) to individual persons who, although physically outside the territorial limits of the Philippines, commit said crimes directly against the Philippine government. 14 Rule 110, Sec. 15. Place where action is to be instituted. (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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It is determined by the allegations in the information As long as any one of the elements of the offense, or the offense itself, is committed within the territorial jurisdiction of the court, and these are alleged in the information, then the court can taken cognizance of the case. (Foz v Fajardo, 2009, a libel case which was dismissed for improper venue for failure to show in the information the relevant jurisdictional facts15) o In Bonifacio v RTC (2010), the issue revolved around the venue of internet libel cases. The SC held that the venue is NOT where the online article/website was accessed. To consider the place of access as printed and first published would let people choose an inconvenient venue for the accused. (Here, the information stated first published and accessed) Jurisdiction of RTC/MTC o RTC: Penalty exceeds six years imprisonment Regardless of fine or accessory penalty Doesnt matter if committed in Metro Manila or outside of MM o MTC: Penalty does not exceed six years imprisonment16 Also, for violations of city or municipal ordinances o If penalty is just a fine (SC Circular 09-94): RTC: exceeds P4000 MTC: does not exceed P4000 Who has jurisdiction to issue hold departure orders? o Only the RTC. MTC can NOT. Hold-departure orders shall be issued only in criminal cases within the exclusive jurisidicton of the RTC. (Mondejar v Buban, citing SC Circular 39-97. Hence, a MTC judge handling a BP 22 case can NOT issue a hold-departure order.) o The Secretary of Justice can also issue hold-departure orders even without any information filed in court, but this is under the executive branch, and must be supported by probable cause. This is being questioned today. o Difference between HDO and a watch list: HDO: you cant leave Watch list: youre being watched, but you can leave o o
SPECIAL AGRARIAN COURT JURISDICTION
What is the jurisdiction of the Special Agrarian Court? o RTC, sitting as a Special Agrarian Court, has jurisdiction over All criminal offenses under RA 6657. Determination of just compensation in agrarian cases. Rest of issues on agrarian reform fall under the DAR. (Land Bank of the Philippines v Bellista, 2009) How do you institute criminal cases in the RTC, acting as a Special Agrarian Court? o Same manner as ordinary criminal actions. Same rule as for cases in the commercial courts, etc, as long as no special law expresses otherwise.
SANDIGANBAYAN JURISDICTION
What is the jurisdiction of the Sandiganbayan? o The accused is at least a Salary Grade 27 employee.
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Special libel venue: 1) province or city where the libelous article was printed and first published, or 2) in the province where the offended party actually resided at the time of the commission of the offense 16 RA 7691, Sec. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall exercise: "(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective territorial jurisdiction; and "(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil liability arising from such offenses or predicated thereon, irrespective of kind, nature, value or amount thereof: Provided, however, That in offenses involving damage to property through criminal negligence, they shall have exclusive original jurisdiction thereof. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Like a municipal mayor (Esquivel v Ombudsman, 2002) Can there be instances when you are not SG27 and still be under the SB jurisdiction? o Yes, if the law expressly provides so. So, the following are under the SB jurisdiction: Members of the sanggu panlungsod (People v SB, 2009) A student reagent (Serrana v SB, 2008, since the SB has jurisdiction over State-owned universities and the student reagent is a member of its board) o And the offense is committed in relation to their office. Meaning, without the office, the crime would not have been committed. Can you be charged of offenses falling under the RPC in the Sandiganbayan? o Yes. Like malversation. Does extent of participation matter? o No. Doesnt matter if principal, accomplice or accessory. o A long as SG 27 and up, or by express provision of law, sandiganbayan has JD. What if there is one public officer falling under the SB jurisdiction and the other is not? o As long as one of them is under the jd of the SB, they can both be charged as co-accused. (Esquivel v Omb, where a municipal mayor [SG 27] and a barangay captain [not under SB jd] were correctly charged under the SB) o Same rule applies if the co-accused is a private party. What if the public officer is not SG27 but the office was a constitutive element of the offense? Which court has jurisdiction? o Regular courts, subject to appeal before the SB. o Because the SB has both original and appellate jurisdiction.
OMBUDSMAN JURISDICTION
What is the jurisdiction of the OMB? o Covers any of malfeasance/misfeasance or omission by a public officer Need not be related to the official duties. The mere fact that you are a public officer means that the OMB has jurisdiction. What if the public officer is not on duty? o Doesnt matter, OMB has jurisdiction to investigate. o Remember: OMB is not a court, but an investigative body. The OMB has the power to investigate and prosecute any act or omission of a public officer or employee when such act or omission appears to be illegal, unjust, improper, or insufficient. (Presidential Ad Hoc v Desierto, 2007) o It has discretion whether or not an information should be filed. o It can dismiss a complaint outright if theres want of palpable merit. It can dismiss even without a response by the alleged offender. o It can also file the information even if there is a pending MR. (Ramiscal v SB, 2010, wherein the SC used the Rules of Procedure of the OMB to state that the filing of an MR/Motion for Reinvestigation shall NOT bar the filing of the information) The OMB has primary jurisdiction over cases cognizable by the SB and in the exercise of its primary jurisdiction, it may take over, at any stage, from any investigatory agency of the Government. o Hence, the OMB can takeover at whatever stage the investigation by the DOJ. (DOJ v Liwag, 2005) Note: The OMBs powers to prosecute is not limited to cases in the SB but also those cognizable by the regular courts. (Castro v Deloria, 2009, wherein the OMB filed a malversation case against a BIR officer in the RTC). o The law does not make a distinction between cases cognizable by the SB and those cognizable by regular courts. Just take note that when it comes to cases cognizable by the SB, the OMB has primary jurisdiction. The Office of the Special Prosecutor (OSP) is under the authority of the OMB. It may act only upon the authority of the OMB. o Hence, without authority from the OMB, the OSP can NOT file an information.
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The OSP has NO delegated power to amend information. It must be directed by the OMB to do so. (Bar question) o It should also file an information if the OMB directs it too, even if its initial recommendation is to dismiss the complaint. (Lazatin v Desierto) Difference between the Office of the Prosec and the OMB o Prosec general jurisdiction over offenses under the RPC (DOJ v Liwag) o OMB primary jurisdiction over cases under the jurisdiction of the OMB. Can public officers be investigated by the Office of the Prosec? YES! The OP is not precluded to investigate on alleged offenses by public officers, but note that the OMB has primary jurisdiction over cases under the SB, so the OMB can take over at any time. (DOJ v Liwag) The OMB can investigate upon: o Its own initiative, even without a formal complaint lodged before it o Inquiry into acts of government based on media (!) or other sources The method of filing a complaint with the OMB is direct, informal, speedy and inexpensive. All you need is sufficient information detailing the illegal or improper acts complained of (DOJ v Liwag) Compare this to the Office of the Prosecutor where you need an affidavit complaint (thats another difference between the OP and the OMB) Because of AO 8 which clarified and modified certain rules of procedure of the OMB, all prosecutors are now deputized OMB prosecutors. o Resolutions in OMB cases against public officers and employees prepared by a deputized assistant prosecutor shall be submitted to the Provincial or City Prosecutor concerned who shall forward the same to the Deputy OMB of the area with his recommendation for the approval or disapproval thereof. The Deputy OMB shall take appropriate final action, including the approval of its filing in the proper regular court or the dismissal. If its under the jd of the SB, it shall be forwarded by the Deputy to the Office of the OMB. (Sesbreno v Aglugub, 2005) How do you review the actions of the OMB? o If on admin cases, go to the CA under Rule 43 (QJAs) o If criminal cases and there is GADALEJ, go to the SC under Rule 65. (Antonino v OMB, 2008) Which decisions of the OMB in admin cases are not appealable? o Public censure or reprimand o Suspension of not more than 1 month o Fine of not more than 1 month salary
POWER OF THE SECRETARY OF JUSTICE OVER THE PROSECUTORS
The Secretary of Justice exercises the power of direct control and supervision over the decisions or resolutions of the prosecutors. o This includes the authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate to direct the performance of duty, and to approve, revise or modify acts and decision of subordinate officials or units (Punzalan v de la Pena, 2004) Read with Preliminary Investigation and DOJ Circular 70.
ROLE OF THE OSG IN CRIMINAL CASES
In trial courts, the FISCAL represents the People of the Philippines. In the CA or the SC, it is the OSG who must represent the People, not the fiscal. (People v Duca, 2009, wherein due process was violated because the OSG was not asked to comment on a case pending in the CA) o But read with Rule 3, Sec 2217
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Sec. 22. Notice to the Solicitor General.
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RULE 110 PROSECUTION OF OFFENSES Section 1. Institution of criminal actions. Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaints shall be filed with the office of the prosecutor unless otherwise provided in their charters. The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws.
For purposes of jurisdiction, no need to distinguish between MM and Outside Metro Manila (as in civil cases). But for the institution of the criminal complaint, you have to distinguish between MM/Chartered Cities and OMM. Metro Manila/Chartered Cities Outside Metro Manila/OCC (?) Requiring Prelim Investigation Office of the Prosec Office of the Prosec (at least 4 years, 2 months, 1 day) Not requiring PI Office of the Prosec Provincial Prosec/MTC Falling under Rule on Office of the Prosec Provincial Prosec/MTC Summary Procedure Who conducts the preliminary investigation? o Prosecutor o Ombudsman What about the MTC judge? No longer allowed, old rule has been amended. Can you file directly in a Metropolitan Trial Court (Met C?) o No, you can only file directly with a MUNICIPAL trial court (MTC). o Only Metro Manila and Chartered Cities have Metropolitan TCs (so you file with the OP). For cases in Metro Manila which require PI, follow Rule 112, Sec 3. o File complaint o Investigating officer dismisses it or issues subpoena to respondent o Respondent submits counter-affidavit If subpoena impossible or no counter-affidavit, investigating officer decides based on complaint If there is counter-affidavit, the officer can call a clarificatory hearing o Resolution o Note: all 10 day periods For cases in Metro Manila which do NOT require PI, follow Rule 112, Sec 3 (a) only. o Just filing of the complaint o Then the prosecutor decides how to resolve The institution of a criminal action shall interrupt the running of the prescription period o Unless provided by special laws. The special law that generally governs this is Act 3326. Act 3326 governs special laws which do not provide for their own prescriptive periods. Laws which have their own prescriptive period rules: o Election law 5 years o Genocide law NEVER prescribes In Act 3326, what does proceedings mean? It includes judicial proceedings, and It also includes executive proceedings. This means investigation by the executive department. o Hence, when a criminal complaint is filed in SEC for the investigation of a crime, the period is interrupted. (SEC V Interport, wherein the Court said that the investigation of the SEC
In any action involving the validity of any treaty, law, ordinance, executive order, presidential decree, rules or regulations, the court, in its discretion, may require the appearance of the Solicitor General who may be heard in person or through a representative duly designated by him. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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for a crime under the Revised Securities Act interrupted the period. See footnote on exact words of SC.18) Hence, in a complaint under the Intellectual Property Law, the prescription period is interrupted when the complaint is filed with the DOJ for preliminary investigation. (Sanrio) For BP22, the filing of the case with the Office of the Prosecutor will interrupt the running of the period. (Panaguiton v DOJ, 2008)
Sec. 2. The complaint or information The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. Sec. 3. Complaint defined. A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. Sec. 4. Information defined. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. Sec. 5. Who must prosecute criminal action. - All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a complaint filed by the offended party of her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the preceding paragraph. No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party. The prosecution for violation of special laws shall be governed by the provision thereof.
The public prosecutor has control and supervision of a criminal case. As such, he has the following duties: o Conduct PI o Prosecute a case o Conduct inquest proceedings (consistent with Rule 112, Sec 6) Note: The prosec who did the PI will not be the same prosec who will prosecute the case. Thus, the public prosecutor must be there during the case. o If the prosecutor is absent, the hearing will be cancelled.
Indubitably, the prescription period is interrupted by commencing the proceedings for the prosecution of the accused. In criminal cases, this is accomplished by initiating the preliminary investigation. The prosecution of offenses punishable under the Revised Securities Act and the Securities Regulations Code is initiated by the filing of a complaint with the SEC or by an investigation conducted by the SEC motu proprio. Only after a finding of probable cause is made by the SEC can the DOJ instigate a preliminary investigation. Thus, the investigation that was commenced by the SEC in 1995, soon after it discovered the questionable acts of the respondents, effectively interrupted the prescription period. Given the nature and purpose of the investigation conducted by the SEC, which is equivalent to the preliminary investigation conducted by the DOJ in criminal cases, such investigation would surely interrupt the prescription period. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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If the hearing continues despite his absence, the proceedings will be considered null and void. o Even if the public prosecutors presence is passive, he still has to be there since he has control and supervision over the case. (Pinote v Ayco, wherein the public prosecutor was absent during the direct examination of the witness of the defense) EXCEPTION to the public prosecutors presence: if the private prosecutor can obtain a certification from the Chief of the Prosecution Office allowing him to prosecute even in the absence of a public prosec. (The cert lasts until the case ends) The private prosecutor intervenes for the private offended party, and does NOT represent the people. There are special rules on private offenses and who can initiate them (See Rule 112, Sec 3A for public crimes): o Adultery/concubinage: must be by the offended spouse and must implead both the offending spouse and his/her paramour Can NOT institute if the offended consented or pardoned the offenders o Abduction, seduction, acts of lasciviousness: must be by the offended party or her parents, grandparents, guardian, or the State (in that order if she is a minor, see par 4) Can NOT institute if there was express pardon of any of them Note: Minors can initiate the action themselves (especially if the offender is their relative), except when incompetent or incapacitated) o Rape: no longer a private crime o Defamation which consists in the imputation of any of the offenses above: must be by the offended party
Sec. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. When an offense is committed by more than one person, all of them shall be included in the complaint or information. Sec. 7. Name of the accused. The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstance and for the court to pronounce judgment. Sec. 10. Place of commission of the offense. The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification. Sec. 11. Date of commission of the offense. - It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. Sec. 12. Name of the offended party. The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law.
Sec 6-12 shows when an information is sufficient. Name of the accused: full name please o If full name not known, use nickname (no aka, like Chuck for Charles) or appellation (aka Boy Ungas Binibining Pokpokers Manong Tigasin Julio Amoy Tae Boy Bugaw) o If no nickname or appellation, use John Doe or Jane Doe. Designation of the offense: use the name given by the statute o If none, just say the section violated (Sec 5 of the DDA) o Also indicate the acts or omissions constituting the offense Even in the absence of a particular section, but the allegation in the info shows that you know the nature of the offense, then its allowed as substantial compliance o Basic rule: what you allege, you have to prove. Read with Rule 120, Sec 4.19 o Try and attempt to rape in the information is not sufficient (People v Dimaano, 469 SCRA 647) o If there was an alleged tampering with the information, it can NOT be set aside if arraignment had already been conducted (Lasoy v Zenarosa, where grams instead of kilograms were placed in the information for DDA, SC said cant amend because accused already in double jeopardy) Qualifying and aggravating circumstances MUST BOTH be alleged o If not alleged but proven in trial, still NOT allowed o Mitigating: no need to allege since part of the defense of the accused Cause of accusation: o The language of the information must be: Stated in ordinary and concise language In the language of the information of the accused So that he is properly informed can make a proper arraignment and plea (Rule 116) Does this mean that if he only speaks Chinese, the info has to be in Chinese? o NO. It still has to be in English (or Filipino, but rarely), it just has to be interpreted to him. Date of commission: o no need for specific date, approximation is ok EXCEPT: when the date is a material element of the offense Like election offenses, infanticide o On or about June 2012 thats ok o On or about 2012 not ok o Specific date not needed in rape cases Place of commission: need to show and aver that it was committed within the territorial jd of the court o BUT take note for offenses where the place is material (trespass to dwelling, violation of domicile, election cases, arson, etc), you have to allege with particularity o Usual way of alleging: within the jurisdiction of San Juan Name of the offended party: aver it, if known; if not, use nicknames; if still not known, fictitious name
19 Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved.
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If it is a crime against property and offended party not known, describe the property with particularity If offended known afterwards, court must insert true name in the information If crime against a juridical person, sufficient to state its name. No need to aver that it is a juridical person or that it is organize in accordance with law.
Sec. 13. Duplicity of the offense. A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.
Only one offense per information is allowed. o EXCEPT: When the law prescribes a single punishment for various offenses When there are multiple offenses and the accused fails to object20 So dont be surprised if there are multiple allegations in just one complaint-affidavit, but the prosecutor comes out with multiple informations
Sec. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.
Amendment of the information can be done. It just depends when and what is changed. Remember that. o Before plea: amendment can be done whether in form or substance Substantial amendment needs a new PI o After plea: Substance: no amendment allowed Form: Yes, as long as it will not prejudice the right of the accused Test: if the original defense of the accused will have to be changed due to the change in the formal amendment Example: rape case, information said 18 but it was a typo and shouldve said 17. It will prejudice the rights of the accused Downgrading and Exclusion Downgrading: Lessening the offense (robbery to theft, murder to homicide, seduction to acts of L) Can you have homicide to frustrated homicide? o GR: NO. EXCEPT: zombies Exclusion: Removing from the information a person o Both of these must be done: Before plea Upon motion of the prosec With leave of court With the consent of the offended party o Note: Since exclusion happens BEFORE plea, no jeopardy will attach. So the accused excluded can still be charged later. Compare this with Rule 119, Sec 17 and the Witness Protection Program. Under this rule, the use of the accused as a state witness is equal to acquittal, so double jeopardy defense can be invoked.
20 Rule 120, Sec. 3. Judgment for two or more offenses. When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.
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But in the WPP, its merely exclusion since done before plea and with the DOJ.
Substitution o The information will be substituted with a new one to be filed if the prosecution cannot prove the offense charged in the prior information (mistake has been made in charging the proper offense) Court will dismiss the original complaint or info upon filing of a new one PROVIDED, accused would not be placed in double jeopardy. o When? anytime before judgment, provided the accused will not be put in double jeopardy o There is no substitution of information when there is only a change in the mode of the commission of an offense. Hence, no need for preliminary investigation either. (Saludaga o v SB, 2010, wherein the offense involved was RA 3019, and the first info was for the first mode which was dismissed. A new info was filed alleging the second mode and the SC said no substitution nor need for new prelim investigation. Court said no amendment either since arose from same transaction either.) o The accused will NOT be released if there is good reason to hold him. The old case will not be dismissed until a new information is filed.21 Important: When is a new preliminary investigation needed? o Substitution of information But if merely mode, no need (like in Saludaga) o Substantial amendment to the information o Provisional dismissal when the original witnesses recanted or have died or no longer available and when new witnesses appear (People v Lacson) o Other persons are charged under a new complaint for the same offense or complaint o Under a new complaint, the original charge has been upgraded o Under a new complaint, the criminal liability of the accused is upgraded from accessory to principal
Sec. 15. Place where action is to be instituted. (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or other vehicle passed during its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed.
Read with rules on venue.
Sec. 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. RULE 111 - PROSECUTION OF CIVIL ACTION Section 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.
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Sec. 19. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefore shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.
GR: Once a criminal action is instituted, the civil action is likewise instituted. o EXCEPT: Reservation Note: No reservation to file civil action separately in BP 22 cases o But if civil case for BP 22 is instituted prior, thats ok BUT it will be suspended until the criminal case is finished. Consolidation is, however, encouraged by the rules. (Bun Tiong v Balboa, 2008) Reservation must be made ANY TIME before the prosecution commences with presentation of evidence and under circumstances affording the offended a reasonable opportunity to make sure reservation. o So not a strict rule. Instituted prior to the criminal action Option to consolidate with the criminal action (see Sec 2) Waiver of civil action When civil liability is sought to be enforced, filing fees is needed for moral, nominal, temperate or exemplary damages. o If the amount is not specified, the fees will be a lien on the judgment. NO filing fees for actual damages. For BP 22 cases, filing fees is needed on all kinds of damages (including actual damages, the amount of the check is the basis for the actual damages) Important: NO counterclaim, cross-claim or 3rd party complaint allowed to be filed by the accused.
Sec. 2. When separate civil action is suspended. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever state it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witness presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.
Once crim action has been commenced, the separate civil action can NOT be instituted until final judgment of the criminal action. If crim action comes after the civil action, the civil action will be suspended and will continue to be suspended until final judgment in the criminal action. o BUT, there is an option for consolidation. How and when? How? By motion of the offended party. When? Before judgment on the merits in the civil case? Where? In the court trying the criminal action. On writ of amparo cases o Can you consolidate a Writ of Amparo with a civil cases or an admin case? NO. o Can you consolidate a Writ of Amparo with a criminal case? YES. If the civil case was instituted ahead of the criminal case, the civil case is interrupted in whatever stage and the criminal case proceeds until judgment. But there is an option to consolidate. Kinds of acquittal and effect on civil liability: o Based on reasonable doubt: civil liability lies o Did not commit the crime: no more civil liability based on the delict (but pwede under quasi-delict) o Purely civil: civil liability lies o Acts from which the civil liability arises from were not committed: no civil liability
Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action.
Independent civil actions are: o 32: violation of rights o 33: defamation, fraud, and PI o 34: failure to aid by police force22
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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o 2176: quasi-delicts Independent civil actions are NOT: o Suspended even if instituted before the criminal action, or o Reserved You do NOT reserve independent civil actions. They can proceed side by side with the criminal actions. o BUT offended can NOT recover damages TWICE for the same act or omission charged in the criminal action.
Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased.chan robles virtual law library If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased.
Rules on the death of the accused: o Dies after arraignment and during the pendency of the criminal action: Criminal liability extinguished (patay na eh.) Civil liability arising from the delict is extinguished Independent civil action continues against the estate or legal rep of the accused o Dies before arraignment: Case shall be dismissed without prejudice to any civil action the offended may file against the estate of the deceased
Sec. 5. Judgment in civil action not a bar. A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action.
Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. Sec. 7. Elements of prejudicial question. The elements of a prejudicial questions are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.
What are the elements of a prejudicial question? o Previously instituted civil action o Civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action o Resolution of such issue determines whether or not the crim action may be proceed What can a prejudicial question do? o It can suspend the criminal action. How and where do you file? Filing a motion: o in the OP or the court conducting the PI. o If already in court, in the court at any time before the prosecution rests.
Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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NOTE: Must be a civil action! No prejudicial question if other case is an admin case or a criminal case Example: o BP 22 case but accused questions in a civil case the imposition of usurious interest NOT a prejudicial question (Jose v Suarez, 2010)
RULE 112 - PRELIMINARY INVESTIGATION Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a compliant or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine.
What is preliminary investigation? o Inquiry or proceeding to determine whether there is ground to form a belief that a crime has been committed and the respondent is probably guilty, and should be held for trial o Basically, the prosecutor determines if there is probable cause Required for an offense where the penalty is at least 4 years, 2 months and 1 day WITHOUT regard to the fine As compared to an inquest: inquest is done when there was a valid warrantless arrest o Determines whether person arrested without warrant should be detained or released for further PI Remember: in PI, use respondent, not accused. o The case only becomes a criminal one once the information is filed.
Sec. 2. Officers authorized to conduct preliminary investigations. The following may conduct preliminary investigations: (a) Provincial or City Prosecutors and their assistants; (b) National and Regional State Prosecutors; and (c) Other officers as may be authorized by law. Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their respective territorial jurisdictions. (As amended by AM 05-8-26-SC, October 3, 2005)
Who can conduct PI? o City prosecutors and their assistants o Provincial prosecutors and their assistants o National and regional state prosecutors o OMB, and the SP (if authorized by the OMB) The NBI can NOT conduct a PI.
Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against the respondent, and these shall be made available for examination or copying by the respondent at his expense. Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party. (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro him to the complainant. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the investigating office shall resolve the complaint based on the evidence presented by the complainant. (e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned. The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days. (f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial.
GR: The complaint-affidavit must be subscribed to before the prosecutor or government official where the case will be filed. o Hence, do NOT file a notarized affidavit. You have to bring your client to the prosecutors office. EXCEPTION: When there is no prosecutor or government official available Special case of Sasot v People, where the complainant was abroad o Remember: the jurisdiction of prosecutors are based on territory. So a prosecutor in Cagayan de Oro can not make an information and then forward it to Manila. Use Rule 117, Sec 3 (d) to quash it. For public crimes, the complaint can be initiated by any competent person with personal knowledge of the acts committed by the offender. It need not be filed by the offended party. (compare to private crimes) o Any competent person includes witnesses (Soriano v People, 2010, where the witnesses executed affidavits for a case of estafa) When a letter or NBI-NCR report is transmitted, along with affidavits of witnesses as attachments, the requirements for initiation of PI is substantially complied with, since the affidavits are what initiate the PI, not the letters. (Soriano v People, where the affidavits were notarized and this was substantial compliance) The absence of oath in the complaint does NOT necessarily render it invalid. o Want of oath is a mere defect of form, which does not affect the substantial rights of the defendant on the merits. (Sasot v People, where the complaint-affidavit was notarized in the US. The copy on record was a mere photocopy but was still allowed because the counsel said that they would present the original in court) For cases which do NOT need PI, only section 3(a) is needed since the prosecutor does not need the counter-affidavit from the respondent. Procedure for PI: o After receiving the affidavit-complaint, the prosecutor has 10 days to determine if there is probable cause He can dismiss it outright Its actually raffled and assigned to the assistant prosecutor o The assistant prosecutor will issue a subpoena to the respondent o The respondent has 10 days to submit a counter-affidavit If none given, the investigating officer can resolve based on the complaint In practice, there can also be a reply or rejoinder from the complainant o Optional clarificatory hearing Within 10 days from submission of the counter-affidavits, or from the expiration of the period for submission o Resolution Usually prepared by the assistant prosecutor, and then approved by the city prosecutor (see next section) Can you file an MR with the prosecutor? o Yes! The rule in Ramiscal (filing of an MR to reverse the resolution will not bar the filing of the information) will also apply to local courts. Atty Tranquil: Dapat tutukan mo talaga yung case.
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Note: there is no need for the service of subpoena (and receipt thereof) for the OP to obtain jd over the respondent. o Theres no case against him yet, just an investigation. o Even if he doesnt submit a counter-affidavit, there can still be a resolution against him. Preliminary investigation is not the occasion for full and exhaustive display of evidence. o Hence, the admissibility of a fax message can NOT be determined during a PI. It is better ventilated in a full-blown trial. (Lee v KBC Bank, 2011)
Sec. 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint. Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof and shall immediately inform the parties of such action. No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy. Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation. If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu propio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting anther preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.
The resolution made by the investigating officer shall be forwarded (along with the records) to the city (or provincial or chief state) prosecutor or OMB. o No complaint or information may be filed or dismissed by the investigating officer without the prior written authority or approval of the city prosecutor (or provincial or chief state). o If the resolution of the investigating prosecutor is for dismissal but is disapproved by his boss, the boss can either: File the information himself, or Direct another prosecutor to do it WITHOUT need of a new PI Either party can petition to the Secretary of Justice (or he can do it motu propio) and reverse/modify the resolution of the provincial, city or chief state prosec o The DOJ Sec can direct the prosec to File the corresponding info without need of another PI, or Dismiss the information How do you appeal the resolution? 23 o Within 15 days, file with the Office of the Secretary of Justice a VERIFIED Petition for Review.24 The period can NOT be extended. If the DOJ Decision is adverse: Use Rule 43 to the CA
See DOJ Circular No. 70 (2000) SECTION 2. Where to appeal. An appeal may be brought to the Secretary of Justice within the period and in the manner herein provided. SECTION 3. Period to appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. SECTION 4. How appeal taken. An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution.
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o o
Or Office of the President if punishable by RP or higher But if based on GADALEJ, Rule 65 to the CA o Compare: if GADALEJ of OMB, you go straight to SC The DOJ can only review resolutions of offenses requiring a PI or those which have gone through reinvestigation.25 If no PI, then DOJ can NOT review. Reinvestigation: applies when: There was already a PI, or There was supposed to be a PI but it was not done, o Filed with the City/Prov Prosec or the court itself (if with court, with motion to lift warrant) In Community Rural Bank v Talavera, the SC did not allow the trial court judge to allow the reinvestigation because the DOJ Secretary had already ruled on the matter beforehand. Allowing the trial court judge to order the prosecutor to reinvestigate will, in effect, make the lowly prosecutor review the decision of the DOJ Secretary. That cant be allowed. So, usually, if the DOJ Sec already rules on the matter, you cant ask the judge for a reinvestigation anymore. Umakyat na sa DOJ Sec eh. What is the effect of the appeal to the DOJ? It will NOT hold the filing of information, unless the DOJ Secretary says otherwise. Although Atty. Tranquil said it will usually defer the proceedings. But the appellant and the prosecutor will see to it that the proceedings are held in abeyance.26 If information has already been filed, the appeal to the DOJ will defer arraignment for 60 days.27 What if the information was already filed in court? A copy of the motion to defer proceedings must accompany the petition.28 What if the accused was arraigned after the filing of the petition with DOJ? It will not prevent the DOJ from acting on the appeal. (Serag v CA, 473 SCRA 590, where the SC said there was undue haste on the RTC when it arraigned the accused knowing that there was still an appeal and pending MR of the DOJ decision. It should have waited for the final resolution of the DOJ before doing so. Interesting because the accused were arraigned for homicide, but the SC disallowed the arraignment because the final DOJ resolution stated it should have been murder. NO double jeopardy! However, Sir said that in practice) But if the arraignment happened before the appeal to the DOJ, the petition will not be given due course.29 (Adasa v Abalos, 2007)
25 SECTION 1. Scope. - This Rule shall apply to appeals from resolutions of the Chief State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutors in cases subject of preliminary investigation/ reinvestigation. 26 SECTION 9. Effect of the appeal. Unless the Secretary of Justice directs otherwise, the appeal shall not hold the filing of the corresponding information in court on the basis of the finding of probable cause in the appealed resolution. 27 Rule 116 l Sec. 11. Suspension of arraignment. Upon motion by the proper party, the arraignment shall be suspended in the following cases: xxx (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office. 28 SECTION 5. Contents of petition. - The petition shall contain or state: (a) the names and addresses of the parties; (b) the Investigation Slip number (I.S. No.) and criminal case number, if any, and title of the case, including the offense charged in the complaint; (c) the venue of the preliminary investigation; (d) the specific material dates showing that it was filed on time; (e) a clear and concise statement of the facts, the assignment of errors, and the reasons or arguments relied upon for the allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse party and the Prosecution Office concerned. The petition shall be accompanied by legible duplicate original or certified true copy of the resolution appealed from together with legible true copies of the complaint, affidavits/sworn statements and other evidence submitted by the parties during the preliminary investigation/ reinvestigation. If an information has been filed in court pursuant to the appealed resolution, a copy of the motion to defer proceedings filed in court must also accompany the petition. The investigating/reviewing/approving prosecutor shall not be impleaded as party respondent in the petition. The party taking the appeal shall be referred to in the petition as either "Complainant-Appellant" or "Respondent- Appellant".
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Comments of the Tranquilizer: In practice, the court cant wait forever for the DOJ to act on the petition for review. And whatever findings the DOJ has, its merely recommendatory as the court already has jurisdiction over the case. If the accused had already been arraigned, then the petition for review will really be useless. o Can you file an MR to the decision of the DOJ? Yes, period is 10 days. This is what was filed in Serag v CA. Does the posting of bail bar the accused from questioning the conduct (or absence) of PI or the legality of the arrest? o No, it does not. Accused can still question. (Okabe v Gutierrez, 2004 where the arrest and the conduct of the PI were both questioned)
Sec. 5. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. (b) By the Municipal Trial Court. When required pursuant to the second paragraph of section of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section. (c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant issued by the municipal trial court in accordance with paragraph (b) of this section, or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The court shall them proceed in the exercise of its original jurisdiction.
There is executive determination and judicial determination of probable cause o Executive by the prosecutor, for information o Judicial by the judge, for the warrant of arrest Judge should not rely solely on prosecutors resolution. The prosecutor must forward the documents to the judge. (Okabe v Gutierrez) Once the information is filed in court, the RTC judge has three options: o Dismiss the case for absence of probable cause The judge can actually do this motu propio, but he wont because hell look suspicious. So, the respondent has to file a motion for determination of probable cause in order to dismiss the information. He will allege lack of probable cause.30 o Issue a warrant of arrest (or a commitment order), after personally determining the existence of probable cause, within 10 days Tranquilizer: automatic yan, basta 10 days, mag-issue yan. o Call for a hearing to determine probable cause What about the MTC judge? o It depends. Not exceeding 6 years but more than 4 years, 2 months, 1 day31: just like the RTC Below 4 years, 2 months, 1 day but more than 6 months 32 : same, but the issuance of the warrant is up to the discretion of the court. If the court thinks that its not too grave, it can just issue summons.
29 SECTION 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the petition shall not bar the Secretary of Justice from exercising his power of review. 30 Can you file a Motion to Quash instead? Atty Tranquil: No, as a practical matter, you file a MTQ after the arrest and before arraignment. If you can dismiss the information before the warrant of arrest is issued, better not to use the MTQ. 31 i.e. under MTC JD but needs PI 32 i.e. no need for PI but not under Rules on Summary Procedure
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When o When o o o
IMPORTANT: This is the only criminal procedure provision which recognizes the issuance of a summons. Not more than 6 months (summary procedure): court can NOT issue a warrant of arrest. Instead, it will require a counter-affidavit. The court can only issue a warrant of arrest for failure to appear in court despite repeated notice Prime example: BP 22 do you file a motion for determination of probable cause? After the filing of the info, before the judge has acted on it. Can NOT be filed after issuance of a warrant of arrest. is a warrant of arrest not necessary? Accused already under detention Complaint or info was filed under Sec 6 (lawful warrantless arrest) Offense penalized only by a fine o
Sec. 6. When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provision of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception. After the filing of the complaint or information in court without a preliminary investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.
Inquest will only apply if: o Warrantless arrest o Offense requires a PI. When a person is lawfully arrested without warrant, what is the process? o Hes brought first to the police station. o Atty Tranquil says there are 4 options: Inquest. Sa ayaw mo or sa gusto mo, ma-iinquest ka. The other options can be availed of if the cops bring your client to the police station at night and there arent any inquest prosecutors to help you. Inquest officer will either order you to be detained or released for further preliminary investigation. o If released for further PI, regular procedure for PI will be done. You can file for bail during inquest. Apply for bail You can even apply for bail with the executive judge. Pero skill na yan. If detained and before the complaint or info is filed, you can go for PI, but you have to waive Rule 125. Even with the waiver, you can still apply for bail. If the info has already been filed without the PI (like when the complaint is filed by the offended party or the police directly with the proper court), you can still ask for PI. What if arrested for an offense and charged, and then escapes, and then arrested without warrant? o Inquest must be conducted. So, what happens if warrantless arrest but the offense does not need PI (like vagrancy)? o Info will be directly filed with the prosecutor OR the MTC. (Remember Section 3a, in relation to Sec 8) But bail can be applied for since already arrested.
Sec. 7. Records.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. (b) Record of preliminary investigation. The record of the preliminary investigation, whether conducted by a judge or a prosecutor, shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party. Sec. 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure. (a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor involving an offense punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and other supporting documents submitted by the complainant within ten (10) days from its filing. (b) If filed with the Municipal Trial Court. If the complaint or information is filed with the Municipal Trial Court or Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3 (a) of this Rule shall be observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a warrant of arrest.
Say you were sued for slight physical injuries in MM and it was not in flagrante delicto, but on the basis of affidavit complaint. What happens? o No need for PI. If the complaint was filed with the prosec, 3(a) will be followed. Prosecutor will determine probable cause and then file the info in court. If the complaint or info was filed with the MTC or MCTC, 3 (a) will be followed. Judge will determine probable cause and its in his discretion to issue either a warrant of arrest or mere summons.
RULE 113 - ARREST Section 1. Definition of arrest. Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Sec. 2. Arrest; how made. An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.
How is an arrest made? o Actual restraint, or o Voluntary submission to the custody of the person making the arrest
Sec. 3. Duty of arresting officer. It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. Sec. 6. Time of making arrest. An arrest may be made on any day and at any time of the day or night.
Whatever the kind of arrest (warrantless or not), it is the duty of the arresting officer to immediately deliver him to the nearest police station. When can you make an arrest? o Any day, at any time of the day or night.
Sec. 4. Execution of warrant. The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore. Sec. 7. Method of arrest by officer by virtue of warrant. When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.
Period to execute warrant: 10 days How does an arrest with a warrant take place? o Officer informs the person to be arrested the cause of the arrest and that a warrant has been issued for his arrest EXCEPT: when the person flees or forcibly resists, or when the giving of such info will imperil the arrest Does the arresting officer need to have the warrant on him? o No. But if the person arrested wants to see it, it must be shown to him as soon as practicable. Be wary of fake warrants!
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. Sec. 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines.
When can you arrest without a warrant? o In flagrante delicto, in the presence of the peace officer or private person o Offense has JUST been committed, and the peace officer or private person has PROBABLE CAUSE to believe based on PERSONAL KNOWLEDGE that the person to be arrested has committed it o Person just escaped from confinement (convicted or detained) or has escaped while being transferred o If a person lawfully arrested escapes or is rescued, ANY person may immediately pursue him or retake him WITHOUT a warrant (Sec 13) o Also arrest by judicial bondsmen, or when the accused (on bail) attempts to depart from the country (See Rule 114, Sec 23)33 Re: in flagrante delicto o Two requisites: Execution of an OVERT act indicating that he just committed, is actually committing, or is attempting to commit a crime, and Such overt act is done in the presence or within the view of the arresting officer o A buy-bust operation is a good example of an warrantless arrest in flagrante delicto. (People v De Leon, 2010, wherein the accused was caught selling shabu to a police operative, note this case for searches and seizure)
33 Sec. 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.
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Police officers arrested a man without a warrant based on a tip of his former employees that he sold drugs. The man was arrested while he was walking to his car. NOT valid. He was not committing any visible offense when he was walking to his car. (People v Laguio, 2007) o Barangay tanods arrested without a warrant a man who just got down from a bus and was looking around. They chased him and he fled. They caught up to him and found marijuana in his bag. Valid search and arrest ? NOT valid. Act of looking around after getting off the bus was not an over act indicating that he committed, actually committed a crime. Flight per se is not synonymous with guilt. (Valdez v People, 2007) Re: offense just been committed, probable cause with personal knowledge of the arresting officers o The one who makes the arrest must do so based on probable cause and personal knowledge that an offense has just been committed For example, two officers were eating in a carinderia, and they suddenly hear a commotion from down the road. They look out and see a man with a bloody bolo running down the street. They can arrest him. o Being arrested 6 days after the commission of the crime is not a valid warrantless arrest. (Rolito Go v CA, 1992) After the warrantless arrest, he must immediately be delivered to the nearest police station or jail o If the offense requires a PI, he will undergo inquest (so he will be brought to the Prosecutors office) If the inquest prosecutor releases the arrested, the case is NOT dismissed. This just means the affidavit-complaint of the arresting officer will be used as a complaint for the normal PI procedure. If the inquest prosecutor detains the arrested, the arrested-accused can either apply for PI or not. If he applies for PI, he needs to sign a waiver of Art 125. He can also apply for bail with the executive judge. If he does not apply for PI, an information will be filed against him and he will be arraigned. o
Sec. 8. Method of arrest by officer without warrant. When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.
What is the duty of the arresting officer if the arrest is made without a warrant? o State his authority to arrest, and o The cause of his arrest. When is this 2-fold duty dispensed with? o Engaged in the commission of the offense o Pursuit immediately after its commission o Escapes, flees, or forcible resists before officer could do so o Giving of such will imperil the arrest
Sec. 9. Method of arrest by private person. When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.
Can a private person make an arrest? o Yes. If not, this section would not exist. Di ba? Duty of a private person? o State cause of arrest, and o The intention to arrest him Exceptions? o Same as above.
Sec. 10. Officer may summon assistance. An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. Sec. 11. Right of officer to break into building or enclosure. An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. Sec. 12. Right to break out from building or enclosure. Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. Sec. 14. Right of attorney or relative to visit person arrested. Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. RULE 114 - BAIL Section 1. Bail defined. Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.
Bail is applicable whenever there is deprivation of liberty. o You dont even need to wait for arraignment, as soon as there is deprivation of liberty or voluntary surrender, bail can be applied for. (Serapio v Sandiganbayan, 2003)
Sec. 2. Conditions of the bail; requirements. All kinds of bail are subject to the following conditions: (a) The undertaking shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of the judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it; (b) The accused shall appear before the proper court whenever required by the court of these Rules; (c) The failure of the accused to appear at the trial without justification and despite due notice shall be deemed a waiver of his right to be present thereat. In such case, the trial may proceed in absentia; and (d) The bondsman shall surrender the accused to the court for execution of the final judgment. The original papers shall state the full name and address of the accused, the amount of the undertaking and the conditions required by this section. Photographs (passport size) taken within the last six (6) months showing the face, left and right profiles of the accused must be attached to the bail.
What are the conditions of bail? o The undertaking shall remain in force at all time until the promulgation of judgment of the RTC Doesnt matter if the case was originally filed in the RTC, or it was appealed to the RTC But remember, in the MTC, bail is a matter of right before or after conviction, so what will happen if you appeal to the CA, (since the bail will no longer remain in force after promulgation in the RTC)? Just renew it, its still a matter of right. o Accused shall appear in the court when he/she is ordered to do so o Failure to appear in court without justification will be a waiver of his right to be present thereat So, trial in absentia will proceed o Bondsman will surrender the accused to the court for execution
Sec. 3. No release or transfer except on court order or bail. No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. Sec. 4. Bail, a matter of right; exception. All persons in custody shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognizance as prescribed by law or this Rule (a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and (b) before conviction by the Regional Trial court of an offense not punishable by death, reclusion perpetua, or life imprisonment. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Bail is a matter of right: o Before conviction, whether MTC or RTC Except for cases punishable by RP, LI or Death Penalty Unless evidence of guilt is not strong, then matter of right (Serapio v SB) o After conviction if in the MTC Since MTC has only JD over cases less than 6 years Basta MTC matter of right yan! o After conviction if in the RTC and less than 6 years and no disqualifiers (see next section) Judge can NOT deny bail, but he has discretion on the amount
Sec. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accuse, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case. Sec. 6. Capital offense defined. A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death. Sec. 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not bailable. No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the state of the criminal prosecution.
The application for bail pending appeal for a bailable offense has two scenarios (Leviste v CA, 201034): o Not RP, LI, or death, and one of the circumstances present bail will be DENIED o Not RP, LI, or death, and none of the circumstaces present discretionary on the court Bail is a matter of discretion: o After conviction in the RTC, o Not a capital offense, or an offense punishable by RP/LI, and o Not accompanied by the following instances, if the penalty exceeds 6 years: Recidivist, habitual delinquent, reiteration Previously escaped from legal confinement Committed offense while under probation/parole/pardon Flight-risk Undue risk that he may commit another crime during the pendency of the appeal o NOTE: a finding that none of the said circumstances is present will NOT automatically result in the grant of bail. (Leviste v CA) Hence, other circumstances can be taken into account by the court to deny bail. Bail is not allowed when: o Capital offense, or an offense punishable by RP/LI, and o Evidence of guilt is strong
34 Back story: Leviste shot his aid. He voluntarily surrendered to his friend Binay and was initially charged with homicide which was a bailable offense. So he posted bail. But the information was upgraded to murder by the DOJ and approved by the court. Murder is a non-bailable offense, so he filed for a petition for bail, which was granted because the evidence of guilt was not strong. Trial proceeded and he was found guilty of homicide. So he filed for bail. And thats where this case left off.
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Where do you apply for bail? o If appealed and before the transmission of records to the appellate court: to the RTC o If appealed, and the RTC conviction changed the nature of offense from non-bailable to bailable: to the appellate court Rules: o If convicted by the RTC, beyond 6 years, and with any of the disqualifiers: bail denied o If convicted by the RTC, beyond 6 years, and with NONE of the disqualifiers: still a matter of discretion o If convicted by the RTC less than 6 years: matter of right o If convicted by the RTC, less than 6 years, but with any of the disqualifiers: bail matter of discretion, but court will impose a higher bail So, when you say that bail is a matter of discretion, can you do away with the hearing? o NO. Bail hearing is mandatory. (See Sec 18) Problems: o Charged with murder, but petition for bail granted. Was subsequently convicted of homicide. Can he apply for bail? Yes, as a matter of discretion. Issue on evidence of guilt is strong is irrelevant since it only applies if the offense is non-bailable (homicide is bailable) o Charged with murder, petition for bail granted, then convicted of murder. Can she apply for bail? No the nature of the offense is non-bailable. Being convicted, the evidence of guilt is obviously strong. o Charged with an offense punishable by more than 6 years but convicted of offense not punishable by more than 6 years (alleged different from what is proven). Can she apply for bail? Yes, as a matter of right.
Sec. 8. Burden of proof in bail application. At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify. Sec. 18. Notice of application to prosecutor. In the application for bail under section 8 of this Rule, the court must give reasonable notice of the hearing to the prosecutor or require him to submit his recommendation
Prosecution has burden of proof to show strong evidence of guilt during bail hearings involving capital offenses and RP/LI. For non-bailable offenses, the person is immediately arrested. So file for a PETITION FOR BAIL. Its mandatory that there: o Is a summary hearing, and o An opportunity for the prosecution to comment A hearing on application for bail is MANDATORY. o Whether bail is a matter of right or of discretion, the prosecutor should be given reasonable notice of hearing, at least his recommendation on the matter must be sought. (Mabutas v Perello, 2005, where the charge was under the DDA) Although in practice, no hearings if bail is a matter of right. o The judge should observe the following: In ALL cases, notify the prosecutor of the hearing or require him to submit a recommendation Conduct a hearing regardless of whether or not the prosecution refuses to present evidence A hearing is required even when the prosecution refuses to adduce evidence or fails to object to the motion of bail (Domingo v Pagayatan, 2003) Decide whether the guilt of the accused is strong based on the summary evidence of the prosecution (relevant if non-bailable offense) If the guilt of the accused is not strong, discharge the accused upon approval of the bail bond. Is joint hearing for multiple accused mandatory? o NO. Its discretionary. (Serapio v SB)
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A bail hearing is a summary hearing, it should be brief and speedy, so court should keep that in mind.
Sec. 9. Amount of bail; guidelines. The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors: (a) Financial liability of the accused to give bail; (b) Nature and circumstance of the offense; (c) Penalty for the offense charged; (d) Character and reputation of the accused; (e) Age and health of the accused; (f) Weight of the evidence against the accused; (g) Probability of the accused appearing at the trial; (h) Forfeiture of other bail; (i) The fact that the accused was a fugitive from justice when arrested; and (j) Pendency of other cases where the accused is on bail. Excessive bail shall not be required. Sec. 10. Corporate surety. Any domestic or foreign corporation, licensed as a surety in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by its board of directors. Sec. 11. Property bond, how posted. A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days after the approval of the bond, the accused shall cause the annotation of the lien on the certificate of title on file with the Registry of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefore, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within the same period, the accused shall submit to the court his compliance and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention. Sec. 12. Qualifications of sureties in property bond. The qualifications of sureties in a property bond shall be as follows: (a) Each must be a resident owner of real estate within the Philippines; (b) Where there is only one surety, his real estate must be worth at least the amount of undertaking; (c) If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded. In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution. Sec. 13. Justification of sureties. Every surety shall justify by affidavit taken before the judge that he possesses the qualification prescribed in the preceding section. He shall describe the property given as security, stating the nature of his title, its encumbrances, the number and amount of other bails entered into by him and still undischarged, and his other liabilities. The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. No bail shall be approved unless the surety is qualified. Sec. 14. Deposit of cash as bail. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer the amount of bail fixed by the court, or recommended by the prosecutor who investigated or filed the case. Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of section 2 of this Rule, the accused shall be discharged from custody. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit. Sec. 15. Recognizance. Whenever allowed by law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.
Types of bail: o Cash bond A judge is not allowed to receive cash for bail nor should it be kept in his office. (Lachica v Judge Tormis, 2005). Cash as bail must be deposited only: To the nearest BIR collector, or To the provincial, city or municipal treasurer
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Accused is entitled to return of full amount if acquitted or case dismissed Corporate surety Must be accredited by the SC Accused pays the premium which he doesnt get back if acquitted Property bond Accused need not be the owner of the property The owner must be a resident of the Philippines (IMPORTANT!) To annotate, register the lien within 10 days from approval of the bond Recognizance Either by the accused himself or a responsible member of the community
Sec. 16. Bail, when not required; reduced bail or recognizance. No bail shall be required when the law or these Rules so provide. When a person has been in custody for a period equal to or more than the possible maximum imprisonment prescribed for the offense charged, he shall be released immediately, without prejudice to the continuation of the trial or the proceedings on appeal. If the maximum penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment. A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court. Sec. 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge, or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city, or municipality other than where the case is pending, bail may also be filed with any regional trial court of said place, of if no judge thereof is available, with any metropolitan trial judge, municipal trial judge, or municipal circuit trial judge therein. (b) Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, pm trial, or appeal. (c) Any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held. Sec. 19. Release on bail. The accused must be discharged upon approval of the bail by the judge with whom it was filed in accordance with section 17 of this Rule. When bail is filed with a court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reason, require a different one to be filed.
Where do you file bail? o If arrested in the place where the case is pending: In that court If judge of said court is absent or unavailable: with any judge in the province, city or municipality Practical tip: you need a certification that judge was in fact absent or unavailable o Absent or unavailable: on leave, sick, etc o Not absent or unavailable: if merely in a meeting, having merienda, etc o If place of arrest is different from where case is pending: In the court where the case is pending (but not really practical) In the RTC where accused was arrested If no RTC judge: then MTC judge Records will be sent to where case is pending and judge where case is pending can choose to accept it or require a new bail (Sec 19) o If there is a case pending but no arrest yet (meaning, accused voluntarily surrenders) Only where the case is pending Although in practice, some people surrender in friendly places and then apply for bail, thats not really allowed
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If there is an arrest but no case pending (meaning, warrantless arrests) Any court where the accused is held Problems: o Arrested in Baragay Poblacion, Makati, and case was filed in Makati: Apply in court where case is pending. If judge not available, apply in any court in the area. o Arrested in Marikina, but case was pending in QC. Apply in Marikina, not in QC. o Wandering freely in the shores of Boracay, but the case pending in Makati. Dont apply for bail, you havent been arrested. But if you decide to voluntarily surrender, you have to do it in Makati and thats where you post bail. o Arrested in Ilocos, but case pending in Makati. Application in Ilocos granted and the records were sent to Makati. Is the judge in Makati obligated to accept the bail? No, he can require a new bail if he wants. (See Section 19) You need an order of release from the judge. o Tranq tip: let your client keep it in his person (and his car) at ALL times o Tranq tip: dont get a certificate of arrest if your client was never arrest. Perwisyo yan! o Tranq tip: if your client voluntarily surrenders so he can post bail, dont bring him to the court, just let him hang around in the vicinity in case the judge wants to see him personally. The court staff might have connections with the police. Perwisyo yan! o
Sec. 20. Increase or reduction of bail. After the accused is admitted to bail, the court may, upon good cause, either increase or reduce its amount. When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge, who is released without bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings and whenever a strong showing of guilt appears to the court, be required to give bail in the amount fixed, or in lieu thereof, committed to custody. Sec. 21. Forfeiture of bail. When the presence of the accused is required by the court or these Rules, his bondsmen shall be notified to produce him before the court on a given date and time. If the accused fails to appear in person as required, his bail shall be declared forfeited and the bondsmen given thirty (30) days within which to produce their principal and to show why no judgment should be rendered against them for the amount of their bail. Within the said period, the bondsmen must: (a) produce the body of their principal or give the reason for his non-production; and (b) explain why the accused did not appear before the court when first required to do so. Failing in these two requisites, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail. The court shall not reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted. Sec. 22. Cancellation of bail. Upon application of the bondsmen, with due notice to the prosecutor, the bail may be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of the judgment of conviction. In all instances, the cancellation shall be without prejudice to any liability on the bail.
Forfeiture: when accused fails to appear in person as required o Forfeited to the court o Remedy: MR to reinstate the bail Cancellation o Automatic when Accused acquitted Dismissal of case Execution of the judgment of conviction o Upon application of the bondsmen Surrender of the accused, or Proof of his death
Sec. 23. Arrest of accused out on bail. For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Arrest without warrant: o By bondsmen o Attempt by the accused (on bail) to depart without permission of the court Thats why you should file a motion to depart when you want to leave the country.
Sec. 24. No bail after final judgment; exception. No bail shall be allowed after a judgment of conviction has become final. If before such finality, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community. In no case shall bail be allowed after the accused has commenced to serve sentence.
GR: No bail after judgment is final and executory o EXCEPT: if he applies for probation before judgment is final (remember you either file for probation or appeal, mutually exclusive), he can go on bail.
Sec. 25. Court supervision of detainees. The court shall exercise supervision over all persons in custody for the purpose of eliminating unnecessary detention. The executive judges of the Regional Trial Courts shall conduct monthly personal inspections of provincial, city, and municipal jails and the prisoners within their respective jurisdictions. They shall ascertain the number of detainees, inquire on their proper accommodation and health and examine the condition of the jail facilities. They shall order the segregation of sexes and of minors from adults, ensure the observance of the right of detainees to confer privately with counsel, and strive to eliminate conditions inimical to the detainees. In cities and municipalities to be specified by the Supreme Court, the municipal trial judges or municipal circuit trial judges shall conduct monthly personal inspections of the municipal jails in their respective municipalities and submit a report to the executive judge of the Regional Trial Court having jurisdiction therein. A monthly report of such visitation shall be submitted by the executive judges to the Court Administrator which shall state the total number of detainees, the names of those held for more than thirty (30) days, the duration of detention, the crime charged, the status of the case, the cause for detention, and other pertinent information. Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefore, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case.
Bail is not a bar to object to: o Illegal arrest o Legality of the warrant o Assail the regularity, questioning or absence of the PI PROVIDED, he raises them BEFORE entering his plea (arraignment) Read with Rule 117, Sec 9 (what are deemed waived if not brought up in a MTQ before arraignment)35 Hence, a motion to quash the amended information can be filed during the pendency of a petition for bail (Serapio v SB)
RULE 115 - RIGHTS OF ACCUSED Section 1. Rights of accused at trial. In all criminal prosecutions, the accused shall be entitled to the following rights: (a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
When circumstances lead to two or more inferences, one or more leading to innocence and one or more leading to guilt, the former (innocence) must prevail.
(b) To be informed of the nature and cause of the accusation against him.
This means that the accused must understand the nature and cause of accusation against him. o So if he doesnt speak Filipino/English, an authorized interpreter must explain it to him.
35 Sec. 13. Appointment of counsel de officio for accused on appeal. - It shall be the duty of the clerk of court of the trial court, upon filing of a notice of appeal to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellate to his inquiry.
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When the complaint or the resolution by the public prosecutor which contain the missing averments is ATTACHED to the information and form part of the records, then the accuseds right to be informed of the accusation has been complied with. (Olivarez v CA, 465 SCRA 465, where the averments of the age of the victim (for purposes of the Anti-Child Abuse Law) were attached to the information)
(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
Right to defend in person and by counsel o When? Every stage of the proceedings, from arraignment to promulgation of the judgment He must be present at all stages of the proceeding. EXCEPT: when he waives this right. But this waiver must be pursuant to stipulations in the conditions of bail. Does the private complainant have to be there always? No. When can a counsel de officio be appointed? o During arraignment (MANDATORY on the court) o During trial (not mandatory on the court) (Libuit v People, where SC said no duty to appoint when accused had his own lawyer during arraignment and during some stages of the trial) o Before records are elected on appeal (accused informed of right to counsel by clerk of court at this point)36 o In the CA: when the accused signed his appeal by himself or if he is in prison o In the SC: check SC guidelines There can be trial in absentia as long as: o There has been arraignment o Accused is unjustifiably absent. Note: Absence of accused is only a waiver of his right to present evidence on that particular day. (Crisostomo v SB, 456 SCRA 45) GR: Negligence of the counsel binds the accused. o EXCEPT: if GROSS negligence because that will be deprivation of due process for the accused (Andrada v People, 452 SCRA 685, where the counsel was justified for not crossexamining certain witnesses) Counsel must be INDEPENDENT counsel. o Hence, not: Legal officer of the city Public or private prosecutor Counsel for the police Municipal attorney (People v Sunga, wherein the counsel was the city legal officer) Accused can testify for the prosecution if he wants, but he cannot be compelled to do so. Silence will NOT prejudice the accused. What if the question only raises civil liability? Accused has a right against self-incrimination. The privilege only applies to testimonial compulsion, and not mechanical acts of the accused. o Hence, DNA results are not covered under this right. (Herrera v Alba 460 SCRA 197)
(d) To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
36 Rule 122, Sec. 13. Appointment of counsel de officio for accused on appeal. - It shall be the duty of the clerk of court of the trial court, upon filing of a notice of appeal to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellate to his inquiry.
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Also not covered: extracting a virus from the body, morphine forced out of the mouth of the accused, an order to put on a pair of apple-bottom jeans (with boots with the furr), pregnancy test
(f) To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or can not with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him. (g) To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.
The accused can apply for subpoena ad testificandum and duces tecum He can also avail of the modes of discovery found in Rule 119, Secs 12, 13, 15 (conditional examination of witnesses for the prosecution/accused) o Witnesses for accused, purposes: Sick or infirm or unavailable, or Lives more than 100 km from court37 Where? Before ANY judge, member of the bar in good standing (if judge not available), or before any inferior court (upon order of a superior court) o Witnesses for prosecution: Sick, infirm, or unavailable, or Witness is about to depart38 Where? ONLY in the court where the action is pending What are the two rights when it comes speed? o Right to speedy trial (criminal) In criminal law, the right to speedy trial can be invoked anytime before trial Remedy: motion to dismiss on ground of violation of right to speedy trial39 (which results in an acquittal) o Speedy disposition of the case (consti) In constitutional law, it can be invoked any time as long as the action is pending Remedy: habeas corpus (since detention has no more legal basis) Vexatious, capricious, oppressive delays violate the right to speedy disposition of the case (VCO)40 Factors:
(h) To have speedy, impartial and public trial.
37 Rule 119, Sec. 12. Application for examination of witness for accused before trial. When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require.chan robles virtual law library Sec. 13. Examination of defense witness; how made. If the court is satisfied that the examination of a witness for the accused is necessary, an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. 38 Rule 119, Sec. 15. Examination of witness for the prosecution. When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. 39 Rule 119, Sec. 9. Remedy where accused is not brought to trial within the time limit. If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. 40 NOTE: Sir said that VCO only applies to right to speedy disposition of cases, but in People v Hernandez, 2006, the Court also applied it to the right of speedy trial.
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o o o o
Relevant time periods: Space below is for your drawing of the time periods! Have fun and make sure to color between the lines!
Length of delay Reasons for such delay Assertion or failure to assert his right by accused Prejudice (Yulo v People, 452 SCRA 705, which involved right to speedy disposition where the MR in the CA was only acted on after 3 years but the SC said no violation because the CA justice retired and the case was reassigned only after 2 years.)
From arrest to pre-trial and arraignment: 30 days From arraignment to trial: 80 days Entire period of trial: 180 days What are NOT included in counting the time? What are EXCLUDED from determination of delay? Those enumerated in Rule 119, Sec 341: o Other proceedings: Mental/physical examination of the accused Other criminal charges Extraordinary remedies against interlocutory orders Like there was a case before that pre-trial happened only after 7 years, but the reason was that there was a Rule 65 pending, so thats a valid exclusion. o Remember the GR though that extraordinary remedies will NOT stop the
Rule 119, Sec. 3. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) Delay resulting from an examination of the physical and mental condition of the accused; (2) Delay resulting from proceedings with respect to other criminal charges against the accused; (3) Delay resulting from extraordinary remedies against interlocutory orders; (4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; (5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) Delay resulting from a finding of existence of a prejudicial question; and (7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted. (f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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o o o
o o
Right to public trial o GR: Trial should be public EXCEPT: when the proceedings or the subject matter of the trial is offensive decency/public morals42 o What about TV coverage? In Petition for Coverage of Multiple Murder Cases against Ampatuan (2011), the SC allowed pro hac vice (for that case only) the coverage of media, subject to certain conditions.43
an ongoing criminal trial unless the higher court gives a TRO. Pre-trial proceedings, as long as not exceeding 30 days Orders of inhibition or change/transfer of venueprejudicail question Any period not exceeding 30 days when the accused is actually under advisement Absence (whereabouts UNKOWN) or unavailability (whereabouts KNOWN but presence could not be obtained) of witness Mental incompetence or physical inability of the accused to stand trial Co-accused over whom court has not acquired JD or for whom time for trial has not run and no motion for separate trial is granted Prosecution dismissed information upon motion and then filed another charge for the same case Continuance granted by the court motu propio or on motion of either the accused or the prosecution
42 Rule 119, Sec. 21. Exclusion of the public. The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. 43 a) An audio-visual recording of the Maguindanao massacre cases may be made both for documentary purposes and for transmittal to live radio and television broadcasting (b) Media entities must file with the trial court a letter of application, manifesting that they intend to broadcast the audio-visual recording of the proceedings and that they have the necessary technological equipment and technical plan to carry out the same, with an undertaking that they will faithfully comply with the guidelines and regulations and cover the entire remaining proceedings until promulgation of judgment. No selective or partial coverage shall be allowed. No media entity shall be allowed to broadcast the proceedings without an application duly approved by the trial court. (c) A single fixed compact camera shall be installed inconspicuously inside the courtroom to provide a single wide-angle full-view of the sala of the trial court. No panning and zooming shall be allowed to avoid unduly highlighting or downplaying incidents in the proceedings. The camera and the necessary equipment shall be operated and controlled only by a duly designated official or employee of the Supreme Court. The camera equipment should not produce or beam any distracting sound or light rays. Signal lights or signs showing the equipment is operating should not be visible. A limited number of microphones and the least installation of wiring, if not wireless technology, must be unobtrusively located in places indicated by the trial court. The Public Information Office and the Office of the Court Administrator shall coordinate and assist the trial court on the physical set-up of the camera and equipment. (d) The transmittal of the audio-visual recording from inside the courtroom to the media entities shall be conducted in such a way that the least physical disturbance shall be ensured in keeping with the dignity and solemnity of the proceedings and the exclusivity of the access to the media entities. The hardware for establishing an interconnection or link with the camera equipment monitoring the proceedings shall be for the account of the media entities, which should employ technology that can (i) avoid the cumbersome snaking cables inside the courtroom, (ii) minimize the unnecessary ingress or egress of technicians, and (iii) preclude undue commotion in case of technical glitches. If the premises outside the courtroom lack space for the set-up of the media entities facilities, the media entities shall access the audio-visual recording either via wireless technology accessible even from outside the court premises or from one common web broadcasting platform from which streaming can be accessed or derived to feed the images and sounds. At all times, exclusive access by the media entities to the real-time audio-visual recording should be protected or encrypted. (e) The broadcasting of the proceedings for a particular day must be continuous and in its entirety, excepting such portions thereof where Sec. 21 of Rule 119 of the Rules of Court applies, and where the trial court excludes, upon motion, prospective witnesses from the courtroom, in instances where, inter alia, there are unresolved identification issues or there are issues which involve the security of the witnesses and the integrity of their testimony (e.g., the dovetailing of corroborative testimonies is material, minority of the witness). The trial court may, with the consent of the parties, order only the pixelization of the image of the witness or mute the audio output, or both. (f) To provide a faithful and complete broadcast of the proceedings, no commercial break or any other gap shall be allowed until the days proceedings are adjourned, except during the period of recess called by the trial court and during portions of the proceedings wherein the public is ordered excluded.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (i) To appeal in all cases allowed and in the manner prescribed by law. RULE 116 - ARRAIGNMENT AND PLEA Section 1. Arraignment and plea; how made. - (a) The accused must be arraigned before the court where the complaint or information was filed or assigned for trial. The arraignment shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint or information, reading the same in the language or dialect known to him, and asking him whether he pleads guilty or not guilty. The prosecution may call at the trial witnesses other than those named in the complaint or information. (b) The accused must be present at the arraignment and must personally enter his plea. Both arraignment and plea shall be made of record, but failure to do so shall not affect the validity of the proceedings. (c) When the accused refuses to plead or makes a conditional plea, a plea of not guilty shall be entered for him. (d) When the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. (e) When the accused is under preventive detention, his case shall be raffled and its records transmitted to the judge to whom the case was raffled within three (3) days from the filing of the information or complaint. The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days after arraignment. (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. (g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment shall be held within thirty (30) days from the date the court acquires jurisdiction over the person of the accused. The time of the pendency of a motion to quash or for a bill or particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period.
Where must arraignment be made? o Court where the complaint or info was filed or assigned for trial When should it be made? o Depends. 30 days from the date the court acquires jurisdiction over the person. (filing of the information) Note: but the time taken up by a motion to quash or a bill of particulars will not be included in the counting of the period Note again: pre-trial must happen within the same 30-day period, but after arraignment 3:10:10 rule if the person is preventively detained. From filing of info, case is raffled within 3 days Arraignment within 10 days of raffle Pre-trial within 10 days of arraignment How should arraignment be made? o The information is read against him by the judge or the clerk
(g) To avoid overriding or superimposing the audio output from the on-going proceedings, the proceedings shall be broadcast without any voiceovers, except brief annotations of scenes depicted therein as may be necessary to explain them at the start or at the end of the scene. Any commentary shall observe the sub judice rule and be subject to the contempt power of the court; (h) No repeat airing of the audio-visual recording shall be allowed until after the finality of judgment, except brief footages and still images derived from or cartographic sketches of scenes based on the recording, only for news purposes, which shall likewise observe the sub judice rule and be subject to the contempt power of the court; (i) The original audio-recording shall be deposited in the National Museum and the Records Management and Archives Office for preservation and exhibition in accordance with law. (j) The audio-visual recording of the proceedings shall be made under the supervision and control of the trial court which may issue supplementary directives, as the exigency requires, including the suspension or revocation of the grant of application by the media entities. (k) The Court shall create a special committee which shall forthwith study, design and recommend appropriate arrangements, implementing regulations, and administrative matters referred to it by the Court concerning the live broadcast of the proceedings pro hac vice, in accordance with the above-outlined guidelines. The Special Committee shall also report and recommend on the feasibility, availability and affordability of the latest technology that would meet the herein requirements. It may conduct consultations with resource persons and experts in the field of information and communication technology. (l) All other present directives in the conduct of the proceedings of the trial court (i.e., prohibition on recording devices such as still cameras, tape recorders; and allowable number of media practitioners inside the courtroom) shall be observed in addition to these guidelines. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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o It must be in a language or dialect known to him o Accused must be asked whether he pleads guilty or not (so arraignment first before plea) Can arraignment be skipped? o No, never. The accused can NOT waive his arraignment. Can the accused ask his lawyer to attend arraignment for him instead? o NO! Accused must be present at the arraignment and must personally enter his plea. The lawyer can not enter his plea for him. Does the offended party have to be there during arraignment? o Yes, for the purposes of plea bargaining, civil liability and other matters. If he doesnt go despite notice, the accused can enter his plea to a lesser offense with the conformity of the prosecutor. So, go! Or else the accused can get off with a lesser offense. What about a belated arraignment? o People v Trinidad: they realized that there was no arraignment done, but the belated arraignment was deemed valid because the counsel of the accused participated in the trial. When will a plea of NOT guilty be entered for the accused? o If he refuses to plea o If he makes a conditional plea o If he enters a plea of guilty but offers exculpatory evidence o If he himself makes a plea of not guilty Kinds of pleas of guilt: o To a lesser offense (Sec 2) o To a capital offense (Sec 3) o To a non-capital offense (Sec 4) o Improvident plea (Sec 5)
Sec. 2. Plea of guilty to a lesser offense. At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary.
When can a plea of guilty to a lesser offense be made? o At arraignment, with the consent of the offended party and the prosecutor Unless the offended party was not there despite notice o At the pre-trial (at the very latest), with the same conditions o At trial, can NO longer plea guilty to lesser offense Note that the lesser offense must be necessarily included in the offense charged.
Sec. 3. Plea of guilty to capital offense; reception of evidence. When the accused pleads guilty to a capital offense, the court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of culpability. The accused may present evidence in his behalf.
Now moot since no more death penalty (suspended) Searching inquiry must be made by the judge to determine if plea was voluntary and if the accused understood the plea o So, check: Background Conduct of custodial investigation (may torture ba, etc) Explain the nature of the offense to the accused HEARING is needed. If no searching inquiry was made or was defective, then the plea of guilty could be an improvident plea. (People v Documento, 2010)
Sec. 4. Plea of guilty to non-capital offense; reception of evidence, discretionary. When the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties to determine the penalty to be imposed.
Hearing here is discretionary, not mandatory. o Only if necessary to determine penalty of offense
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 5. Withdrawal of improvident plea of guilty. At any time before the judgment of conviction becomes final, the court may permit an improvident plea of guilty to be withdrawn and be substituted by a plea of not guilty.
What is an improvident plea ba? o Plea of guilty without fully understanding the consequences of the plea Jhunivel pleaded guilty to murder, but he didnt know what that meant. It can be withdrawn ANY time BEFORE judgment of conviction becomes final and executory (after appeal period expires) If the plea is the sole basis of the conviction, then the case will be remanded to the trial court for further proceedings. (supposing it went up to the appellate courts) o If there are other pieces of evidence, the appellate court can decide based on those pieces of evidence.
Sec. 6. Duty of court to inform accused of his right to counsel. Before arraignment, the court shall inform the accused of his right to counsel and ask him if he desires to have one. Unless the accused is allowed to defend himself in person or has employed counsel of his choice, the court must assign a counsel de officio to defend him. Sec. 7. Appointment of counsel de officio. The court, considering the gravity of the offense and the difficulty of the questions that may arise, shall appoint as counsel de officio such members of the bar in good standing who, by reason of their experience and ability, can competently defend the accused. But in localities where such members of the bar are not available, the court may appoint any person, resident of the province and of good repute for probity and ability, to defend the accused. Sec. 8. Time for counsel de officio to prepare for arraignment. Whenever a counsel de office is appointed by the court to defend the accused at the arraignment, he shall be given a reasonable time to consult with the accused as to his plea before proceeding with the arraignment.
Before arraignment, it is the duty of the court: o to inform the accused of his right to counsel o to appoint a counsel de officio if no lawyers available, court may appoint any person of good repute and ability to defend the accused
Sec. 9. Bill of particulars. The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired.
When can you move for a bill of particulars? o BEFORE arraignment What do you need to allege? o Defects, and o Details desired If the prosecution does not provide a bill of particulars, or what it provided was defective, the case will be dismissed based on failure to prosecute. (Virata v Sandiganbayan, 1997, where the BoP merely reiterated stuff and even added allegations)
Sec. 10. Production or inspection of material evidence in possession of prosecution. Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, object, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in the possession or under the control of the prosecution, police, or other law investigating agencies. Sec. 11. Suspension of arraignment. Upon motion by the proper party, the arraignment shall be suspended in the following cases: (a) The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto. In such case, the court shall order his mental examination and, if necessary, his confinement for such purpose; (b) There exists a prejudicial question; and Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the President; provided, that the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the reviewing office.
When is arraignment suspended? o Accused suffering from unsound mental condition o Prejudicial question exists o Petition for review is pending with the DOJ or the Office of the Prez Should not exceed 60 days from filing Tranq tip: Obtain a resolution from the DOJ asap. Remember that the Court will not wait long after the 60 day period expires. You have to watch and be ready for this problem. o Pending incidents like Motion to quash Motion for inhibition Motion for bill of particulars
RULE 117 MOTION TO QUASH Section 1. Time to move to quash. At any time before entering his plea, the accused may move to quash the complaint or information.
When do you file a motion to quash? o ANY TIME before entering the plea What are the basic reasons for doing so? o Info is defective, or o Court has no JD Can you file a motion to quash a complaint-affidavit? o NO. You quash the info, not the complaint-affidavit.
Sec. 2. 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.
Must be in writing o Signed by the accused or his counsel Court shall not consider any other ground except those indicated in the motion o EXCEPT: no jurisdiction over the subject matter
Sec. 3. 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.
Grounds: Facts charged do not constitute an offense (See Sec 4) o Basically: the elements of the offense are not alleged o Test: whether or not the facts asseverated, if hypothetically admitted, would establish the essential elements of the crime defined in law (Lazarte v SB) o Matters aliunde will NOT be considered. But what if the facts alleged constitute a different crime? Then NO MTQ. Court will order an amendment. o If order not followed, then court will grant the MTQ. Double jeopardy? NO. No arraignment yet. Example: charged with qualified theft, but failed to show the relationship between the parties.
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More than one offense was charged in the information o Remember the rule: one offense=one information Except if single punishment for various offenses is prescribed by law (complex crime) o 123 checks bounced = 123 informations o 12 times raped = 12 informations (remember J-Call!) o Stabbed a man 18 times to death = 1 information for murder Does not conform substantially to prescribed form o Talks of the sufficiency of an information o Remember that it needs the certification by the prosecutor.44 Officer who filed the information had NO authority to do so o Like a special prosecutor filing or amending an info without authority from the OMB. o Or a prosecutor in Cagayan de Oro filing an info in Makati. But if allowed or appointed by the DOJ, then thats fine. So a state prosecutor appointed as acting city prosecutor can have authority to approve/file an information prepared by the assistant prosecutor, as long as allowed/appointed by the DOJ. Lack of jd over the person of the accused, i.e: o No voluntary surrender, or not yet arrested Lack of jd over the offense charged o Court can consider even without alleging in the MTQ Criminal action/liability has been extinguished by prescription o It is the criminal liability which has been extinguished and which this ground applies to If the issue is with the prescription of penalties, thats a different story since that presupposes that judgment had already been meted out Contains averments which, if true, would constitute a legal excuse or justification o Like if the information containing justifying circumstances What if merely mitigating? Doesnt matter. Prosecutor shouldnt have put it there in the first place. Weak information. Double jeopardy (read with Sec 7) o Requisites: Filed in a competent jurisdiction Valid information previously filed Valid plea Previously convicted, acquitted or case was dismissed without express consent of the accused o Test: whether one offense is identical with the other or is an attempt to commit it or a frustration thereof; or whether one offense necessarily includes or is necessarily included in the other (Merencillo v People, 2007, where SC said that being charged of violating the Anti-Graft Law and Direct Bribery does NOT amount to double jeopardy.) o GR: Dismissal must be WITHOUT the express consent of the accused Like failure to prosecute EXCEPT (important! Ie with consent of the accused but double jeopardy can be invoked): o Violation of right to speedy trial o Demurrer to evidence What about motion for determination of probable cause and granted by the court? Nope, no double jeopardy because at this point, there has been no plea yet. o When will double jeopardy not set in? Supervening event
Rule 112, Sec. 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the information that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal of the complaint.
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Facts constituting graver charge only discovered after a plea was entered Like when charge was frustrated homicide, then after plea, the victim dies Plea of guilty to lesser offense was made WITHOUT consent of prosecutor and offended party EXCEPT: o when the private offended party did not appear during arraignment for plea bargaining and the offense was necessarily included in the offense charged (double jeopardy sets in!)45
Sec. 4. Amendment of 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. 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. Sec. 5. 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 of another charge. Sec. 6. 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.
What is the effect of a grant of the MTQ? o GR: DISMISSAL! EXCEPT: If based on alleged defect which can be cured by amendment, court will order amendment. If based on ground that facts charged do not constitute an offense, court will allow amendment. o Yet, if the prosecution fails to make the amendment, then dismissal. Can a new complaint or information be filed? (re-filing of information) o GR: Yes. The accused will not be discharged unless admitted to bail. If still no new complaint or info is filed within the specific period ordered by court, the accused can be discharged. Will the time-bar rule in provisional dismissals apply to re-filing of an information? o NO! It will NOT apply. (Los Banos v Pedro, 2009) o EXCEPT: (When can there be no re-filing) Prescription Double jeopardy What is the remedy of a denial of a MTQ? o None. Wait for the judgment and then appeal. (Lazarte v SB) EXCEPT if denial was really tainted with GADALEJ, then Rule 65.
Sec. 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 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 another prosecution
45 Rule 116, Sec 1 (f) The private offended party shall be required to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other matters requiring his presence. In case of failure of the offended party to appear despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro 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. Sec. 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.
In provisional dismissal, there is no questioning of the information. o The info is valid and the court has JD over the person and the offense. Note: always done with o the consent of the accused and o notice of the offended party Effect: case is temporarily dismissed o Meaning it can be revived (not re-filed since the dismissal was provisional) Does it have to be in writing? o NO. No form required. Compare with a MTQ which needs to be in writing. Who can ask for a PD? o Prosecution With the consent of the accused (so no double jeopardy) If no consent of the accused, the hearing will be reset. o If no consent of the accused and was still dismissed, then double jeopardy will set in. o The accused No need for consent of the prosecution When can you ask for a PD? o ANY TIME while the case is pending. o Even before arraignment (Atty. Tranq) Compare with MTQ that must be filed before plea. Do the grounds for a MTQ apply in PD? o NO. Sample grounds for a PD: Witness not available for quite some time The victim became insane Lack of material evidence How can provisional dismissal be permanent? o If the offense does not exceed 6 years: 1 years o If offense goes beyond 6 years: 2 years The period starts upon receipt of notice by the accused BUT: in People v Lacson, (2003) the SC said the period can only start upon receipt of notice by the public prosecutor (since he has the duty to revive the case) Why go for a provisional dismissal instead of a continuance? o So you wont get trapped by the accused saying that his right to a speedy trial has been violated. o Asking for multiple continuances and resets may piss the judge off.
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Filed by? Form? Attacks what? When available? Permanence
MTQ Accused Form and content required by law (in writing, etc) Assails the information BEFORE plea Time-bar rule applies
Prov Dismissal Accused or Prosec No such requirement Grounded on reasons other than the defects in the information ANY TIME Doesnt apply
Sec. 9. Failure to move to quash or to allege any ground therefore. 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 except those based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule.
When should one file a MTQ? o Before plea If not, then WAIVER of those grounds. EXCEPT: o Facts charged do not constitute an offense o No jurisdiction over the offense charged o Criminal action has extinguished o Double jeopardy o Zombie apocalypse Motion to Dismiss (Civil) Grant, deny, or order an amendment Pwede! Except: Prescription Unenforceable under SoF Res Judicata Extinguished claim or demand Waived! Except: Lack of jd over SM Prescription Litis Pendentia Res Judicata Motion to Quash (Criminal) Grant, deny or order to amend (LIMITED grounds: defect that can be cured or facts charged do not constitute an offense) Pwede! Except: Double jeopardy Prescription
Court actions
Re-filing
Objections not raised
Waived! Except: Lack of jd over offense Prescription Does not constitute an offense Double jeopardy
RULE 118 PRE-TRIAL Section 1. Pre-trial; mandatory in criminal cases. In all criminal cases cognizable by the Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: (a) plea bargaining; (b) stipulation of facts; (c) marking for identification of evidence of the parties; (d) waiver of objections to admissibility of evidence; (e) modification of the order of trial if the accused admits the charge but interposes a lawful defense; and (f) such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case.
When should pre-trial occur?
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30 days from the court acquiring jurisdiction over the person AND after arraignment Read with arraignment: Pre-trial must be within the same 30-day period as arraignment But if the accused is detained, remember the 3:10:10 rule Is pretrial mandatory? o YES. (OCA v Espanol, 2004, wherein a judge did not avail of pre-trial, causing her to retire with a lot of pending cases) Can you compromise? o GR: No compromises in criminal action Why not? Because of the rule that offer of compromise is a sign of criminal liability. (Evidence) o BUT now, because of the JDR/ADR rules: theft, libel, defamation, estafa can be compromised, but only on the civil aspect (couldnt find the basis for this) But you can compromise the civil aspect of the case. Thats it. It doesnt dismiss the criminal case. o On affidavits of desistance: Affidavit of desistance filed before the office of the prosecutor (during PI) Allowed, and will dismiss the case if the OP decides to. However, no double jeopardy will set in yet (since no arraignment) Affidavit of desistance filed while the case is already pending in court (arraignment done! Affiant will have to take the stand to authenticate the affidavit. And then the prosecution will move for dismissal. o However, it is important to coordinate and talk to the fiscal. For all you know, he might not want to dismiss the case. Remember, its under his control and supervision. o
Sec. 2. Pre-trial agreement. All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel, otherwise, they cannot be used against the accused. The agreements covering the matters referred to in section 1 of this Rule shall be approved by the court.
Admissions of the accused during the pre-trial can be used against him provided: o It is in writing, and o Signed by both the accused and his counsel No such requirement in civil cases. Agreements (those found in Sec 1) also have to be o in writing and o signed by both the accused and his counsel, o with the additional requirement of approval by the court. In practice, these admissions and agreements are incorporated into the pre-trial order which both the accused and his counsel must sign. In People v Sunga, (2003) the accused allegedly signed a confession during PRELIMINARY INVESTIGATION, and was helped by the city legal officer to execute it. SC said the extrajudicial confession was inadmissible because the city legal officer was not an INDEPENDENT counsel. (it was assigned under this Rule, dont know why. SC made a passing remark on pretrial, but the confession was made during PI, not pre-trial.)
Sec. 3. Non-appearance at pre-trial conference. If the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable excuse for his lack of cooperation, the court may impose proper sanctions or penalties.
The rule of absences in pre-trial of civil cases do NOT apply in criminal cases. If the offended party/witness is absent, the court can either reset the pre-trial or rely on compulsory processes. If the counsels are absent, the court may impose sanctions or penalties. o What if you are admonished? Thats ok, dont cry. Its just a gentle and friendly reproof. BUT cry if its a reprimand, because thats a penalty.
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If the accused is absent, there will be o Forfeiture or bail, or/and o Warrant of arrest
Sec. 4. Pre-trial order. After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of, and control the course of the action during the trial, unless modified by the court to prevent manifest injustice.
Pre-trial order will recite: o Actions taken o Facts stipulated o Evidence marked
RULE 119 - TRIAL Section 1. Time to prepare for trial. After a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial. The trial shall commence within thirty (30) days from receipt of the pre-trial order.
Trial must commence within 30 days from receipt of pre-trial order o If there is an order for new trial, then within 30 days from notice of that order (Sec 5) But if impractical, it can be extended up to 180 days from notice of trial
Sec. 2. Continuous trial until terminated; postponements. Trial once commenced shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause. The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous trail on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of trial, except as otherwise authorized by the Supreme Court. The time limitations provided under this section and the preceding section shall not apply where special laws or circulars of the Supreme Court provide for a shorter period of trial. Sec. 3. Exclusions. - The following periods of delay shall be excluded in computing the time within which trial must commence: (a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following: (1) Delay resulting from an examination of the physical and mental condition of the accused; (2) Delay resulting from proceedings with respect to other criminal charges against the accused; (3) Delay resulting from extraordinary remedies against interlocutory orders; (4) Delay resulting from pre-trial proceedings; provided, that the delay does not exceed thirty (30) days; (5) Delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts; (6) Delay resulting from a finding of existence of a prejudicial question; and (7) Delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement. (b) Any period of delay resulting from the absence or unavailability of an essential witness. For purposes of this subparagraph, an essential witness shall be considered absent when his whereabouts are unknown or his whereabouts cannot be determined by due diligence. He shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained by due diligence. (c) Any period of delay resulting from the mental incompetence or physical inability of the accused to stand trial. (d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge. (e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted. (f) Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 4. Factors for granting continuance. The following factors, among others, shall be considered by a court in determining whether to grant a continuance under section 3(f) of this Rule. (a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and (b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein. In addition, no continuance under section 3(f) of this Rule shall be granted because of congestion of the courts calendar or lack of diligent preparation or failure to obtain available witnesses on the part of the prosecutor.
Trial must conclude within 180 days from the first day o Unless authorized by the Supreme Court But take note of the exclusions, these are not counted in determining the period. For the granting of continuance (which is an allowable exclusion), the court will check the following factors: o Whether or not it will lead to a miscarriage of justice So, this can include civpro grounds (like unavailability of material evidence, sickness of counsel) o The issues are so novel, unusual, and complex that it requires more time to prepare No continuance allowed: o Lack of diligent preparation on the part of the prosecutor o Congestion of the courts calendar o Failure to obtain available witness on the part of the prosecutor
Sec. 5. Time limit following an order for new trial. If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend but not to exceed one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred eighty (180) days from notice of said order for new trial. Sec. 6. Extended time limit. - Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar-month period following its effectivity on September 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit shall be eighty (80) days. Sec. 7. Public attorneys duties where accused is imprisoned. If the public attorney assigned to defend a person charged with a crime knows that he latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following: (a) Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right and demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and of his right to demand trial. If at anytime thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the public attorney shall promptly seek to obtain the presence of the prisoner for trial. (d) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purpose of trial, the prisoner shall be made available accordingly. Sec. 8. Sanctions. In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows the case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without merit; (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows:
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (1) By imposing on a counsel privately retained in connection with the defense o fan accused, a fine not exceeding twenty thousand pesos (P20,000.00); (2) By imposing on any appointed counsel de officio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these rules. Sec. 9. Remedy where accused is not brought to trial within the time limit. If the accused is not brought to trial within the time limit required by Section 1(g), Rule 116 and Section 1, as extended by Section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. Sec. 10. Law on speedy trial not a bar to provision on speedy trial in the Constitution. No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by Section 14(2), Article III, of the 1987 Constitution.
Sec 9 is the remedy for failure to uphold the right to speedy trial. o As can be seen, it must be brought before trial begins.
Sec. 11. Order of trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages, if any, arising, from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (d) Upon admission of evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified.
Order of trial o Prosecution o Defense o Rebuttal (onwards: optional) o Surrebuttal o Submission of memoranda Order can be reversed when self-defense or other exculpatory defenses are raised
Sec. 12. Application for examination of witness for accused before trial. When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is sick or infirm as to afford reasonable ground for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. Sec. 13. Examination of defense witness; how made. If the court is satisfied that the examination of a witness for the accused is necessary, an order shall be made directing that the witness be examined at a specific date, time and place and that a copy of the order be served on the prosecutor at least three (3) days before the scheduled examination. The examination shall be taken before a judge, or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or if the order be made by a court of superior jurisdiction, before an inferior court to be designated therein. The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. Sec. 14. Bail to secure appearance of material witness. When the court is satisfied, upon proof of oath, that a material witness will not testify when required, it may, upon motion of either party, order Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken. Sec. 15. Examination of witness for the prosecution. When it is satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, of has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused.
Check the discussion on rights of the accused for this one. o The law, as can be seen, favors the accused. Will Rule 23 on depositions apply to criminal cases? o NO. Rule 119 must be followed. (Manguerra v Risos, 2008, wherein the old and sick witness of the prosecution was NOT examined before the judge where the case was pending.) Note: You can have a witness post bail to secure his attendance.
Sec. 16. Trial of several accused. When two or more accused are jointly charged with an offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecutor or any accused, orders separate trial for one or more accused. Sec. 17. Discharge of accused to be state witness. When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d) Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. Sec. 18. Discharge of accused operates as acquittal. The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge.
Requisites of the accused as a state witness o No direct evidence Like when the evidence is only circumstantial o Absolute necessity for the evidence o Testimony could be substantially corroborated in material points Does not need to be corroborated in the EXACT same points, enough if important points are corroborated. If what was needed was the exact same points, then the requisite no other direct evidence available will be rendered nugatory. (Salvanera v People, 2007, wherein the testimony of the 2 discharged accused jived with other prosecution witnesses. Also People v Estacio, 2009, where the dischargeds testimony which led to finding the body of the victim in a certain lot was corroborated by other witnesses who saw the victim near the said lot.) o Accused does not appear to be the most guilty Not the least guilty ah! o Not convicted of a crime involving moral turpitude When should it be applied for? o Before the prosecution rests its case
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What does the applicant need to submit? o A sworn affidavit What is the effect of grant? o Acquittal, playah. Acquittal. So, double jeopardy kicks in. Unless, he reneges on his duty to testify according to his sworn statement. What if the application is denied? o The statement shall be inadmissible. Tell me (more!) about the Witness Protection Program: o Requisites are the same, sir. But with the WPP, it is filed in the DOJ, not with the court, maam. o Under the WPP, double jeopardy does NOT set in since no plea yet. So he can be prosecuted afterwards. (Yu v RTC of Tagaytay) o Under the WPP, its not an acquittal, but a mere exclusion.
Sec. 19. When mistake has been made in charging the proper offense. When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.
Read with substitution of information.
Sec. 20. Appointment of acting prosecutor. When a prosecutor, his assistant or deputy is disqualified to act due to any of the grounds stated in section 1 of Rule 137 or for any other reason, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. Sec. 21. Exclusion of the public. The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties.
Read with the rights of the accused.
Sec. 22. Consolidation of trials of related offenses. Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court. Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.
When can you file a demurrer to evidence? o Civil: after the plaintiff has completed presenting his evidence o Criminal: after the prosecution rests Do you need leave of court? o Criminal: not really, but there are serious, dire, and substantial consequences if you do not secure leave of court. If you file with leave of court and its denied, the accused can still present evidence.
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If you filed WITHOUT leave of court and its denied, the accused will not be able to present evidence. Judgment shall be rendered. o Civil: no need for leave of court (remember the rules) Can the court move for a demurrer on its own? o YES! It can! As long as it gives the prosecution a chance to be heard What about motion for demurrer, how does that work? o File within 5 days from the time the prosecution rests (NON-EXTENDIBLE) o Prosecution can oppose the motion within 5 days from receipt (NON-EXTENDIBLE) o If leave is granted, accused has 10 days from notice to file the demurrer (NONEXTENDIBLE) o Prosecution can oppose the demurrer 10 days from receipt (NON-EXTENDIBLE) If the criminal demurrer is denied, whats your remedy? o Nothing. Just wait for judgment. Unless, GADLEJ, so Rule 65. (Dayap v Sendiong, 2009, where the demurrer was granted and the SC also ruled that no need to remand to the MTC since the judgment expressly stated that the act from which the civil liability may arise did not exist) What is the effect of a grant of demurrer? o Civil: final disposition of the case o Criminal: acquittal But civil aspect of the case (since its impliedly instituted) should still be heard of, unless the court rules that the fact from which the civil liability would arise does not exist. What are the implications? The accused can still present evidence on the civil aspect. The offended party can appeal without the conformity of the public prosecution. Hence, when a judge grants a demurrer but immediately rules on the civil aspect of the case, this was a violation of due process of the accused. (Salazar v People, 2003, compare with Dayap v Sendiong above)
Sec. 24. Reopening. At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order granting it.
Can there be reopening of the case? o Yes! ANYTIME before finality of conviction. o Can be by the court motu propio or upon motion (with hearing) Why? o To avoid miscarriage of justice How long before the proceedings terminate? o 30 days from grant
RULE 120 JUDGMENT Section 1. Judgment; definition and form. Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. Sec. 2. Contents of the judgment. If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.
What should judgment contain?
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The offense Penalty Participation Aggravating or mitigating circumstances If acquitted, whether: There is complete non-liability Reasonable doubt Facts from which the civil liability might arise were not committed An acquittal does not necessarily carry with it the extinguishment of the civil liability. o Thats why judgments of acquittal are required to state whether evidence of the prosecution failed to prove the guilt of the accused or merely failed to prove it beyond a reaonsable doubt. (Ching v Nicdao, 2007, where the offended party was entitled to appeal the civil aspect of a BP22 case despite the acquittal of the accused.) Is there a remedy against acquittal? o GR: No, its immediately executory. NOT even an MR by the prosecution. EX: GADALEJ, so certiorari. o You file Rule 65 with the conformity of the OSG. But if in the MTC, with the conformity of the Office of the Prosecutor. o o o o o
Sec. 3. Judgment for two or more offenses. When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.
Read with Rule 110, Sec 13
Sec. 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. Sec. 5. When an offense includes or is included in another. An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form part of those constituting the latter.
What happens if theres a difference between the offense charged in the complaint/info and the offense proved? o Convict of either the offense proved (which must be included in the offense charged), or offense charged (which is included in the offense proved) basically: the lesser offense, whether it be the one proved or charged o Hence, one can be convicted of grave coercion in an info which charges robbery. (Consulta v People, 2009)
Sec. 6. Promulgation of judgment. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative. When the judge is absent or outside the province or city, the judgment may be promulgated by the clerk of court. If the accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court which rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed and resolved by the appellate court.chan robles virtual law library The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.
In civil cases, you have judgment served. In criminal cases, you have judgment promulgated. Thats why you need notice of judgment. GR: The accused must be present during the promulgation of the judgment. o EXCEPT: light offenses What happens if hes not there without justifiable cause? o He loses the remedies available in the rules and he shall be arrested. Can he explain? Yes, within 15 days. Who promulgates? o GR: Judge who ruled over the case, or the clerk of court (if judge is absent or outside the province or city) EXCEPT: If accused confined elsewhere, the executive judge in the RTC who has jurisdiction over the place of confinement o Can the appellate courts do promulgation? Yes. When duly certified by the division, it will be forwarded to the clerk of court who will give notice of promulgation on paper. Where do you file the notice of appeal and the bail? o To the court promulgating the judgment BUT, if the decision makes the offense bailable (from non-bailable), the bail application must be filed with the appellate court who will resolve it To whom should notice of promulgation be served? o As much as possible, to the accused personally. EXCEPT: If in jail: to the warden If out on bail: to the bondsman. If at large: to his last known address
Sec. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.
Judgment can be modified before it is final and executory. o But once final and no appeal is perfected, it can no longer be modified (Tamayo v People, 2008, where an alleged compromise made after the judgment became final and executory was not allowed to modify the criminal aspect of the case.) EXCEPT: Correction of nunc pro tunc entries or clerical errors In criminal cases, when does it become final and executory? o After lapse of period to appeal o Sentence has been partially or totally satisfied or served o Accused waived his right to appeal o Accused applied for probation
Sec. 8. Entry of judgment. After a judgment has become final, it shall be entered in accordance with Rule 36.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 9. Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. Nothing in this rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. RULE 121 - NEW TRIAL OR RECONSIDERATION Section 1. New trial or reconsideration. At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial46 or reconsideration.
When can accused file a MR or a MNT? o Anytime before judgment of conviction becomes final. So thats 15 days. Neypes rule is applicable. (Sumiran v Damaso, 2009, So if MR denied, you have fresh 15 days to appeal) How? o Court on its own instance but with consent of the accused, or o On motion of the accused Can the prosecution file for an MR or a MNT? NO.
Sec. 2. Grounds for a new trial. The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.
What are the grounds for MNT? o Errors of law/irregularities prejudicing substantive rights of accused during trial o Newly discovered evidence Requisites: Material Could not have been discovered and produced with reasonable diligence Would probably change the judgment A MNT based on newly discovered DNA evidence of the accused was not granted because the DNA evidence was capable of being discovered or procured during the trial. (Writ of Habeas Corpus of Reynaldo de Villa, 2004) If MNT granted, how long does the court have to commence a new trial? o 30 days from notice of such order o Extendable up to 180 days from notice, if the period is impractical47 Can you file a MNT in the CA? o Yes, but only based on newly discovered evidence. o When? Anytime from perfection of the appeal until the court loses jurisdiction.48
Sec. 3. Ground for reconsideration. The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings.
What are the grounds for a MR? o Errors of law or fact in the judgment, which requires no further proceedings Can you file an MR in the CA? o Yes, but just once.
47 Rule 119, Sec. 5. Time limit following an order for new trial. If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend but not to exceed one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred eighty (180) days from notice of said order for new trial. 48 Rule 124, Sec. 14. Motion for new trial. At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final, the latter may move for a new trial on the ground of newly-discovered evidence material to his defense. The motion shall conform with the provisions of section 4, Rule 121. Sec. 15. Where new trial conducted. When a new trial is granted, the Court of Appeals may conduct the hearing and receive evidence as provided in section 12 of this Rule or refer the trial to the court of origin.
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Sec. 4. Form of motion and notice to the prosecutor. The motion for new trial or reconsideration shall be in writing and shall state the grounds on which it is based. If based on a newly-discovered evidence, the motion must be supported by affidavits of witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the prosecutor. Sec. 5. Hearing on motion. Where a motion for new trial calls for resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. Sec. 6. Effects of granting a new trial or reconsideration. The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly-discovered evidence, the evidence already adduced shall stand and the newly-discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants new trial or reconsideration, the original judgment shall be set aside or vacated and a new judgment rendered accordingly.
What are the effects of granting MR/MNT? o New trial and granted on errors of law or irregularities in trial: everything shall be set aside and taken anew o New trial and granted on newly discovered evidence: evidence already adduced shall stand, and new evidence will be considered o ALL cases: original judgment shall be set aside or vacated and a new judgment rendered accordingly
RULE 122 - APPEAL
Basic rule: NO record of appeal in criminal cases o Only notice of appeal
Section 1. Who may appeal. Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy.
Who may appeal? o Any party may do so, unless the accused will be placed in double jeopardy That means: o The accused o The offended party But only as regards the civil aspect of the case o People of the Philippines Like when a motion to quash the information was granted, the State can appeal since double jeopardy has not set in (MTQ is filed BEFORE arraignment) Effect of appeals: o In civil, court will only consider the assignment of errors o In criminal cases, the ENTIRE case is open for review. So the penalty can actually be increased on appeal.
Sec. 2. Where to appeal. The appeal may be taken as follows: (a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court; (b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and (c) To the Supreme Court, in cases decided by the Court of Appeals. Sec. 3. How appeal taken. (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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(c) The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in accordance with paragraph (a) of this section. (d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court. The same shall be automatically reviewed by the Court of Appeals as provided in section 10 of this Rule. (e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari under Rule 45.
This space is allocated for diagrams and drawings of the appeal process (draw your own na lang!):
MTC decides RTC o Via notice of appeal filed in the MTC Convicted of acts of lasciviousness in MTC, file notice of appeal in MTC so RTC can rule on the appeal Compare to civil: where record of appeal can be used (Rule 40) o RTC can require memoranda (Rule 122, Sec 9) Same with civil o No hearing in RTC since acting in its appellate jurisdiction RTC decides CA o Depends: RTC acting originally: Via notice of appeal filed in the RTC (Rule 41) Applies also if penalty imposed by RTC is RP or LI o If death, straight to CA (no need for notice of appeal) Compared with civil: record of appeal allowed Procedure in CA: File appellants brief within 30 days, appellees brief within 30 days, and reply brief within 20 days (30-30-20)49 (Rule 124)
49 Rule 124, Sec. 3. When brief for appellant to be filed. Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and documentary, is already attached to the record, the appellant shall file seven (7) copies of his brief with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellee.
Sec. 4. When brief for appellee to be filed; reply brief of the appellant. Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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o Compared with civil: 45-45-20 (Rule 44) RTC acting as an appellate court: Via petition for review under Rule 42 Like when filed originally in MTC and affirmed in the RTC Same with civil o Can a decision from the RTC go straight to the SC? YES. If based purely on questions of law. Use Rule 45. CA decides SC o GR: always via petition for review on certiorari under Rule 4550 (pure questions of law) EXCEPT: when CA decides penalty is RP/LI, (or offenses committed in the same occasion or same occurrence which game rise to the offense of RP/LI) remedy is by notice of appeal with the CA to the SC (important! Only instance when Rule 45 is not used to go up to the SC on appeal same rule as from SB)51 when CA decides death, it will render but NOT enter a judgment and certify the case to the SC. o The case of the accomplices and accessories will also be certified to the SC. SB decides SC (note: SB same level as CA) o Penalty is less than death/life/RP Rule 45 to SC o Penalty is death automatic review to SC o Penalty is life/RP notice of appeal to the SC Note: when the decision is raised to the SC on notice of appeal (RP/LI), both questions on facts and law can be raised. Does Rule 41, Sec 152 (enumerates when appeal is prohibited) apply to criminal appeals? o NO. Thats why you can appeal a MTQ regardless of the ground availed of. Even if the ground can lead to a simple re-filing, appeal is still available. What happens if the accused uses the wrong mode for appeal? o The judgment will become final and executory because the running of the appeal period will not be tolled. (Deus v People, 2008, where Rule 65 was used instead of a notice of appeal) EXCEPT: When the interest of justice would allow (like when it when the wrong mode of appeal was done by an indigent who did not have a lawyer, as what happened in Deus)
Sec. 6. When appeal to be taken. An appeal must be taken within fifteen (15) days from promulgation of the judgment or from notice of the final order appealed from. This period for perfecting an appeal
Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not covered in the brief of the appellant. 50 Petition for Review to go to the SC only applies from CA and SC. Compare to Civil Cases where it can come from the RTC, CA, SB, CTA en banc, etc. 51 Rule 124, Sec. 13. Certification or appeal of case to the Supreme Court.(a) Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (b) Where the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the appeal shall be included in the case certified for review to, the Supreme Court. (c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals. 52 Rule 41, Section 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to be appealable. No appeal may be taken from: (a) An order denying a motion for new trial or reconsideration; (b) An order denying a petition for relief or any similar motion seeking relief from judgment; (c) An interlocutory order; (d) An order disallowing or dismissing an appeal; (e) An order denying a motion to set aside a judgment by consent, confession or compromise on the ground of fraud, mistake or duress, or any other ground vitiating consent; (f) An order of execution; (g) A judgment or final order for or against one or more of several parties or in separate claims, counterclaims, cross-claims and third-party complaints, while the main case is pending, unless the court allows an appeal therefrom; and (h) An order dismissing an action without prejudice. In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro shall be suspended from the time a motion for new trial or reconsideration is filed until notice of the order overruling the motion has been served upon the accused or his counsel at which time the balance of the period begins to run.
When? o 15 days from promulgation of the judgment or from notice of the final order appealed from
Sec. 4. Service of notice of appeal. If personal service of the copy of the notice of appeal can not be made upon the adverse party or his counsel, service may be done by registered mail or by substituted service pursuant to sections 7 and 8 of Rule 13. Sec. 5. Waiver of notice. The appellee may waive his right to a notice that an appeal has been taken. The appellate court may, in its discretion, entertain an appeal notwithstanding failure to give such notice if the interests of justice so require. Sec. 7. Transcribing and filing notes of stenographic reporter upon appeal. When notice of appeals is filed by the accused, the trial court shall direct the stenographic reporter to transcribe his notes of the proceedings. When filed by the People of the Philippines, the trial court shall direct the stenographic reporter to transcribe such portion of his notes of the proceedings as the court, upon motion, shall specify in writing. The stenographic reporter shall certify to the correctness of the notes and the transcript thereof, which shall consist of the original and four copies, and shall file said original and four copies with the clerk without unnecessary delay.chan robles virtual law library If death penalty is imposed, the stenographic reporter shall, within thirty (30) days from promulgation of the sentence, file with the clerk the original and four copies of the duly certified transcript of his notes of the proceedings. No extension of time for filing of said transcript of stenographic notes shall be granted except by the Supreme Court and only upon justifiable grounds. Sec. 8. Transmission of papers to appellate court upon appeal. Within five (5) days from the filing of the notice of appeal, the clerk of court with whom the notice of appeal was filed must transmit to the clerk of court of the appellate court the complete record of the case, together with said notice. The original and three copies of the transcript of stenographic notes, together with the records, shall also be transmitted to the clerk of the appellate court without undue delay. The other copy of the transcript shall remain in the lower court. Sec. 9. Appeal to the Regional Trial Courts. (a) Within five (5) days from perfection of the appeal, the clerk of court shall transmit the original record to the appropriate Regional Trial Court. (b) Upon receipt of the complete record of the case, transcripts and exhibits, the clerk of court of the Regional Trial Court shall notify the parties of such fact. (c) Within fifteen (15) days from receipt of said notice, the parties may submit memoranda or briefs, or may be required by the Regional Trial Court to do so. After the submission of such memoranda or briefs, or upon the expiration of the period to file the same, the Regional Trial Court shall decide the case on the basis of the entire record of the case and of such memoranda or briefs as may have been filed. Sec. 10. Transmission of records in case of death penalty. In all cases where the death penalty is imposed by the trial court, the records shall be forwarded to the Court of Appeals for automatic review and judgment within twenty days but not earlier than fifteen days from the promulgation of the judgment or notice of denial of a motion for new trial or reconsideration. The transcript shall also be forwarded within ten days after the filing thereof by the stenographic reporter. (10a) Sec. 11. Effect of appeal by any of several accused. (a) An appeal taken by one or more of several accused shall not affect those who did not appeal, except insofar as the judgment of the appellate court is favorable and applicable to the latter. (b) The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. (c) Upon perfection of the appeal, the execution of the judgment or final order appealed from shall be stayed as to the appealing party.
If multiple accused: o Only one or several of them (but not all) appeal: will NOT affect those who did NOT appeal UNLESS favorable and applicable to them o Appeal of the offended party of the civil aspect: will NOT affect the criminal aspect o Upon perfection of the appeal: execution shall be stayed but only as to the appealing party Situation: Abab, Betines and Cholorg were all convicted for homicide. Abad and Benites appealed using the correct mode. Cholorg, being an orc, appealed but used the wrong mode of appeal.
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Cholorgs case was dismissed. In the meantime, Abad and Benites were acquitted on appeal. Will it benefit Cholorg? o Hell no! o It only benefits if one of the accused DID NOT appeal. (Quidet v People, 2010) Cholorg appealed. It will not benefit him.
Sec. 12. Withdrawal of appeal. - Notwithstanding perfection of the appeal, the Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court, as the case may be, may allow the appellant to withdraw his appeal before the record has been forwarded by the clerk of court to the proper appellate court as provided in section 8, in which case, the judgment shall become final. The Regional Trial Court may also, in its discretion, allow the appellant from the judgment of a Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court to withdraw his appeal, provided a motion to that effect is filed before rendition of the judgment in the case on appeal, in which case the judgment of the court of origin shall become final and the case shall be remanded to the latter court for execution of the judgment. Sec. 13. Appointment of counsel de officio for accused on appeal. - It shall be the duty of the clerk of court of the trial court, upon filing of a notice of appeal to ascertain from the appellant, if confined in prison, whether he desires the Regional Trial Court, Court of Appeals or the Supreme Court to appoint a counsel de officio to defend him and to transmit with the record on a form to be prepared by the clerk of court of the appellate court, a certificate of compliance with this duty and of the response of the appellate to his inquiry.
Trial court clerk is duty bound to ascertain from the accused if he wants a counsel de officio for an accused (then court will appoint): o On appeal, and o Accused is confined in prison Whatre the other instances where mandatory to give a counsel de officio? Upon arraignment, but thats by the court. Read with Rule 124, Sec 2. (appointment by the CA) Also allowed by the SC but not found in the rules
RULE 123 - PROCEDURE IN THE MUNICIPAL TRIAL COURTS Section 1. Uniform Procedure. The procedure to be observed in the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall be the same as in the Regional Trial Courts, except where a particular provision applies only to either of said courts and in criminal cases governed by the Revised Rule on Summary Procedure. RULE 124 - PROCEDURE IN THE COURT OF APPEALS Section 1. Title of the case. In all criminal cases appealed to the Court of Appeals, the party appealing the case shall be called the "appellant" and the adverse party the "appellee," but the title of the case shall remain as it was in the court of origin. Sec. 2. Appointment of counsel de officio for the accused. If it appears from the record of the case as transmitted that (a) the accused is confined in prison, (b) is without counsel de parte on appeal, or (c) has signed the notice of appeal himself, ask the clerk of court of the Court of Appeals shall designate a counsel de officio. An appellant who is not confined in prison may, upon request, be assigned a counsel de officio within ten (10) days from receipt of the notice to file brief and he establishes his right thereto.
Can a counsel de officio be named in the CA? o Yes, its mandatory when the accused: Is in prison If hes not confined, its not mandatory on the court Is without counsel de parte on appeal, or Signed his own appeal
Sec. 3. When brief for appellant to be filed. Within thirty (30) days from receipt by the appellant or his counsel of the notice from the clerk of court of the Court of Appeals that the evidence, oral and documentary, is already attached to the record, the appellant shall file seven (7) copies of his brief with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellee. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Sec. 4. When brief for appellee to be filed; reply brief of the appellant. Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file seven (7) copies of the brief of the appellee with the clerk of court which shall be accompanied by proof of service of two (2) copies thereof upon the appellant. Within twenty (20) days from receipt of the brief of the appellee, the appellant may file a reply brief traversing matters raised in the former but not covered in the brief of the appellant. Sec. 5. Extension of time for filing briefs. Extension of time for the filing of briefs will not be allowed except for good and sufficient cause and only if the motion for extension is filed before the expiration of the time sought to be extended. Sec. 6. Form of briefs. Briefs shall either be printed, encoded or typewritten in double space on legal size good quality unglazed paper, 330 mm. in length by 216 mm. in width. Sec. 7. Contents of brief. The briefs in criminal cases shall have the same contents as provided in sections 13 and 14 of Rule 44. A certified true copy of the decision or final order appealed from shall be appended to the brief of the appellant. Sec. 8. Dismissal of appeal for abandonment or failure to prosecute. The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de officio. The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal.
Note: CA can dimiss an appeal motu propio or upon motion: o Failure to file brief o Accused jumps bail, escapes or flees to a foreign country As what happened in People v Taruc, 2009, which applied this section to the SC as well
Sec. 9. Prompt disposition of appeals. Appeals of accused who are under detention shall be given precedence in their disposition over other appeals. The Court of Appeals shall hear and decide the appeal at the earliest practicable time with due regard to the rights of the parties. The accused need not be present in court during the hearing of the appeal. Sec. 10. Judgment not to be reversed or modified except for substantial error. No judgment shall be reversed or modified unless the Court of Appeals, after an examination of the record and of the evidence adduced by the parties, is of the opinion that terror was committed which injuriously affected the substantial rights of the appellant. Sec. 11. Scope of judgment. The Court of Appeals may reverse, affirm or modify the judgment and increase or reduce the penalty imposed by the trial court, remand the case to the Regional Trial Court for new trial or retrial, or dismiss the case. Sec. 12. Power to receive evidence.The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the Court of Appeals must be continuous and must be completed within three months, unless extended by the Chief Justice. 12(a)
CA can receive evidence and can resolve factual issues. o It can even conduct new trials!
Sec. 13. Certification or appeal of case to the Supreme Court. (a) Whenever the Court of Appeals finds that the penalty of death should be imposed, the court shall render judgment but refrain from making an entry of judgment and forthwith certify the case and elevate its entire record to the Supreme Court for review. (b) Where the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more severe offense for which the penalty of death is imposed, and the accused appeals, the appeal shall be included in the case certified for review to, the Supreme Court. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme Court by notice of appeal filed with the Court of Appeals.
CA imposes death: it should render judgment but refrain from making an entry of judgment. Certify the case to the SC for review. CA imposes RP, LI or crimes made in the occasion of RP/LI, thereunder and enter judgment imposing such penalty. o Judgment to be appealed to the SC by notice of appeal filed with the CA.
Sec. 14. Motion for new trial. At any time after the appeal from the lower court has been perfected and before the judgment of the Court of Appeals convicting the appellant becomes final, the latter may move for a new trial on the ground of newly-discovered evidence material to his defense. The motion shall conform with the provisions of section 4, Rule 121. Sec. 15. Where new trial conducted. When a new trial is granted, the Court of Appeals may conduct the hearing and receive evidence as provided in section 12 of this Rule or refer the trial to the court of origin.
MNT in CA: only on ground of newly-discovered evidence o If granted, CA can: Conduct the hearing on its own or Remand the case to the lower court
Sec. 16. Reconsideration. A motion for reconsideration shall be filed within fifteen (15) days from notice of the decision or final order of the Court of Appeals with copies thereof served upon the adverse party, setting forth the grounds in support thereof. The mittimus shall be stayed during the pendency of the motion for reconsideration. No party shall be allowed a second motion for reconsideration of a judgment or final order.
MR in CA: only once allowed!
Sec. 17. Judgment transmitted and filed in trial court. When the entry of judgment of the Court of Appeals is issued, a certified true copy of the judgment shall be attached to the original record which shall be remanded to the clerk of the court from which the appeal was taken. Sec. 18. Application of certain rules in civil procedure to criminal cases. The provisions of Rules 42, 44 to 46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and appealed civil cases shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule.
Note that Rule 50 is applicable! These are other grounds for dismissal.53
RULE 125 - PROCEDURE IN THE SUPREME COURT Section 1. Uniform Procedure. Unless otherwise provided by the Constitution or by law, the procedure in the Supreme Court in original and in appealed cases shall be the same as in the Court of Appeals.
53 RULE 50 DISMISSAL OF APPEAL Section 1. Grounds for dismissal of appeal. An appeal may be dismissed by the Court of Appeals, on its own motion or on that of the appellee, on the following grounds: (a) Failure of the record on appeal to show on its face that the appeal was taken within the period fixed by these Rules; (b) Failure to file the notice of appeal or the record on appeal within the period prescribed by these Rules; (c) Failure of the appellant to pay the docket and other lawful fees as provided in section 4 of Rule 41; (d) Unauthorized alterations, omissions or additions in the approved record on appeal as provided in section 4 of Rule 44; (e) Failure of the appellant to serve and file the required number of copies of his brief or memorandum within the time provided by these Rules; (f) Absence of specific assignment of errors in the appellants brief, or of page references to the record as required in section 13, paragraphs (a), (c), (d) and (f) of Rule 44; (g) Failure of the appellant to take the necessary steps for the correction or completion of the record within the time limited by the court in its order; (h) Failure of the appellant to appear at the preliminary conference under Rule 48 or to comply with orders, circulars, or directives of the court without justifiable cause; and (i) The fact that the order or judgment appealed from is not appealable. Sec. 2. Dismissal of improper appeal to the Court of Appeals. An appeal under Rule 41 taken from the Regional Trial Court to the Court of Appeals raising only questions of law shall be dismissed, issues purely of law not being reviewable by said court. Similarly, an appeal by notice of appeal instead of by petition for review from the appellate judgment of a Regional Trial Court shall be dismissed. An appeal erroneously taken to the Court of Appeals shall not be transferred to the appropriate court but shall be dismissed outright. Sec. 3. Withdrawal of appeal. An appeal may be withdrawn as of right at any time before the filing of the appellees brief. Thereafter, the withdrawal may be allowed in the discretion of the court.
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro Sec. 2. Review of decisions of the Court of Appeals. The procedure for the review by the Supreme Court of decisions in criminal cases rendered by the Court of Appeals shall be the same as in civil cases. Sec. 3. Decision if opinion is equally divided. When the Supreme Court en banc is equally divided in opinion or the necessary majority cannot be had on whether to acquit the appellant, the case shall again be deliberated upon and if no decision is reached after re-deliberation, the judgment of conviction of lower court shall be reversed and the accused acquitted. RULE 126 - SEARCH AND SEIZURE Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. Sec. 2. Court where application for search warrant shall be filed. An application for search warrant shall be filed with the following: (a) Any court within whose territorial jurisdiction a crime was committed. b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced. However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending.
Search warrant is: o Order in writing o Issued in the name of the People o Signed by a judge o Directing a peace officer to search for personal property described therein o And bring such property to the court The application for a search warrant is a special criminal process. Where do you apply for a search warrant? o Court with territorial jd over the crime o For compelling reasons, any court within the judicial region of the crime Or any court where the warrant will be enforced Example of compelling reason: crime committed by an influential public officer of said lcoality Important: but if criminal action had already been filed, apply only in that court where case is pending The place of manufacture of fake goods are in Cavite, but its sold in San Juan. Where do you apply? o Either of the two places. Can a search warrant applied for in QC or Manila be implemented outside of its territorial jurisdiction? o GR: NO. EXCEPT: DDA IP Code Illegal possession of firearms Illegal gambling Heinous crimes AMLA Violation of tariff and customs code o For these crimes, you have to apply before an executive judge in Manila or QC. Then it will be effective anywhere. (Marimla v People, 2009, citing AM 99-10-09-SC) An application for a SW is not a criminal action. o Its a special judicial process.
Sec. 3. Personal property to be seized. A search warrant may be issued for the search and seizure of personal property: (a) Subject of the offense; (b) Stolen or embezzled and other proceeds, or fruits of the offense; or Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro (c) Used or intended to be used as the means of committing an offense.
What can be the subject of s search warrant? o Subject of offense o Stolen or embezzled or fruits of the offense o Used or intended to be use as the means of committing the offense Does the warrant have to specify the quantity of drugs? o No. what is required is that the object of the search be described with particularity. o So, an undetermined amount of shabu is valid. Supposing a policeman had a search warrant for pirated DVDs but before enforcing it, he saw a stash of drugs. Will there be a valid search and seizure of the drugs? o Yes, under the plain view doctrine.
Sec. 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. Sec. 5. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. Sec. 6. Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.
It is the judge, not the prosecutor, who determines probable cause. o Judge needs to personally examine the complainant/applicant and witnesses under oath or affirmation. The applicant must have personal knowledge of the facts. A search warrant can NOT be issued on hearsay statements of the applicant. o Must do so by searching questions. (Remember Justice Sabio who issued only 2 search warrants throughout his entire career) The place must to be searched must be described with particularity. o So if what will be searched is an apartment, give the number of the apartment. If what was searched was the wrong apartment, the search, ie implementation, is invalid. (But the warrant is valid.) Remember the Consti cases on personal knowledge of the officer who gave the wrong address. o What if no way to describe with particularity (like in a province)? Possible to say KM 30. But wont apply to cities or municipalities since there are have street names naman. The things to be seized must also be described with particularity. o But it is NOT required that the things to be seized must be described in precise and minute detail. o Test: whether the things described are limited to those which bear direct relation to the offense for which the warrant is issued. (Chan v Honda Motors, 2007, where the search warrant was for Wave motorcycles, and what was seized were Wave 110 S and Wave 125 S motorcycles. SC allowed it.) o Rationale for need of particularity: Readily identify the properties to be seized Leave the police with no discretion regarding what is to be seized and thus prevent unreasonable searches and seizures Important: one search warrant = one specific offense o Hence, when the search warrant was issued for robbery, but the information for robbery was quashed. The items seized through said search warrant can NOT be used for re-filing an information of qualified theft based on the same case. (Sy Tan v Sy Tiong) You need to procure a new search warrant.
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Where o o o o
But, if there are two separate cases pertaining to one particular property, and that property was already seized by a search warrant in one case, then the property need only be identified to be used in the second case. (Atty. Tranquil) Gun was used to kill Lilibeth. It was also used in another occasion to rob a bank. It was seized in a search warrant connected to the murder case of Lilibeth. If an information for robbery were to be filed in the future, no need for another search warrant to get the gun, it need only be identified. else is probable cause needed? Preliminary investigation Warrantless arrests (crime just been committed) Warrant of arrest Search and seizures
Sec. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. virtual law library Sec. 9. Time of making search. The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.
How to implement: o officer can break door or windows o has to be made in the presence of the lawful occupant, or any member of his family, or two witnesses of sufficient age and discretion residing in the same locality o generally served in the day (compare to arrest which can be done any time) unless affidavit asserts that property is on the person or in the place to be searched, at night pwede
Sec. 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.
Search warrant lasts for only 10 days.
Sec. 11. Receipt for the property seized. The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property.
Implementing officer must give a detailed receipt of the goods seized o to the local occupant or o in his absence, leave it in the place where he seized the property, in the presence of at least 2 witnesses Moreover, the 2-witness rule applies only to o searches made under authority of a search warrant o of a house, room or other premises o where the occupant or his family is absent. Does the 2-witness rule apply to seizure of dangerous drugs? o NO. Follow Sec 21 of the DDA. 54 (Quincot v People 2009, where drugs were seized via a buy-bust operation and was not seized inside a house)
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DDA Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her
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Sec. 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. (b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. (c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. A violation of this section shall constitute contempt of court.
Normally, the inventory can be done in the court or police station. o But in DDA cases, the inventory must be made at the scene of the crime. Moreover, the chain of custody rule must be followed. (People v de Leon, wherein the cops did not follow Sec 21 of DDA to the letter but the court admitted the drugs because the integrity of the procedure was established substantially)
Sec. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.
GR: Arrest must come before or contemporaneous the search and seizure.
Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.
Motion to quash: before the implementation of the search warrant
representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; (2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination; (3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours; (4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained; (5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board; (6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney's office to represent the former; (7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and (8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH. Mickey Ingles 4C Ateneo Law 2012 Atty Tranquil (and some stuff from Atty Guevarra)
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Motion to suppress: after implementation and before presentation in court Where to file: o Court that issued the warrant if that court fails to act on it, then in the court where the criminal case is pending
RULE 127 - PROVISIONAL REMEDIES IN CRIMINAL CASES Section 1. Availability of provisional remedies. The provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action. Sec. 2. Attachment. When the civil action is properly instituted in the criminal action as provided in Rule 111, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: (a) When the accused is about to abscond from the Philippines; (b) When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and (d) When the accused resides outside the Philippines.
GR: Provisional remedies in civil procedure are applicable to criminal procedure. o EXCEPT: Replevin since it can only be filed before an answer (and theres no answer in crimpro) Grounds for attachment: o Accused is about to abscond o Accused concealed, removed, or disposed of his property (or is about to do so) o Claim for money or property that has been embezzled with abuse of trust (estafa) o Accused reside outside the Philippines Attachment can be availed of when the civil action is properly instituted in the criminal action
Thanks for using the reviewer! Please pay it forward. James 1:2-12 Consider it pure joy, my brothers and sisters, whenever you face trials of many kinds, because you know that the testing of your faith produces perseverance. Let perseverance finish its work so that you may be mature and complete, not lacking anything. If any of you lacks wisdom, you should ask God, who gives generously to all without finding fault, and it will be given to you. But when you ask, you must believe and not doubt, because the one who doubts is like a wave of the sea, blown and tossed by the wind. That person should not expect to receive anything from the Lord. Such a person is double-minded and unstable in all they do. Believers in humble circumstances ought to take pride in their high position. But the rich should take pride in their humiliationsince they will pass away like a wild flower. For the sun rises with scorching heat and withers the plant; its blossom falls and its beauty is destroyed. In the same way, the rich will fade away even while they go about their business. Blessed is the one who perseveres under trial because, having stood the test, that person will receive the crown of life that the Lord has promised to those who love him. Lets all keep fighting the good fight, Batch 2012. Ad majorem Dei gloriam.
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Remedial Law Reviewer - Micky

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What are the grounds for preliminary attachment?

What are the grounds for preliminary attachment?

What are the three stages of attachment according to Torres v Satsatin?

What are the three stages of attachment according to Torres v Satsatin?

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro PROVISIONAL REMEDIES 1 RULE 57 PRELIMINARY ATTACHMENT 1 RULE

RULE 57 PRELIMINARY ATTACHMENT

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Sec. 14. Proceedings where property claimed by third person.

RULE 58 PRELIMINARY INJUNCTION

Magic word: enjoin or stop

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Receivership only covers acts of administration, receiver cant do acts of ownership

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Similar to the rule in attachment (compare with execution)

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

RULE 65 CERTIORARI, PROHIBITION AND MANDAMUS

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Redemption Mortgagor/Mortgagee Individuals

JUDICIAL Banks 1 year from registration of sale 1 year

EXTRAJUDICIAL Banks 1 year

3 months or before registration of sale, whichever comes first

RULE 69 PARTITION Section 1. Complaint in action for partition of real estate.

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Look at Sec 5! The court may dismiss the complaint OUTRIGHT.

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

CRIMINAL PROCEDURE VENUE IN CRIMINAL CASES

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

SPECIAL AGRARIAN COURT JURISDICTION

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

POWER OF THE SECRETARY OF JUSTICE OVER THE PROSECUTORS

ROLE OF THE OSG IN CRIMINAL CASES

Sec. 22. Notice to the Solicitor General.

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

Read with rules on venue.

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro

am+dg Remedial Law Review: Prov Rem, SCA, and Crimpro