Provisional dismissal and double jeopardy in criminal cases

When a valid complaint or information charging a person with an offense has been dismissed or otherwise terminated without his express consent by a court of competent jurisdiction after he has pleaded to the charge, such dismissal or termination shall be a bar to another prosecution for the offense charged. This is the found in Section 7, Rule 117 of the Rules of Court implementing the Constitutional right against double jeopardy.

On the other hand, Section 8 of Rule 117 provides that when a criminal case is provisionally dismissed with the express consent of the accused as when he himself asks for such dismissal with notice to the offended party,the dismissal is not a bar to another prosecution for the same offense because his action in having the case dimissed is a waiver of his constitutional right aginst double jeopardy.His ground for asking such dismissal is usually his right to a speedy trial.But if the provisional dismissal of the offense punishable by imprisonment not exceeding six years, or of the offense punishable by imprisonment exceeding six years, is not revived within one year or two years respectively from the issuance of the order, said dismissal shal become permanent and the case cannot be revived anymore.

The common denomination in both Sections is the dismissal of the criminal case. But in the rule on double jeopardy, the dismissal is without the express consent of the accused while the rule on provisional dismissal requires the express consent of the accused. In double jeopardy, it is required that the dismissal be made after the accused has been arraigned or has entered a valid plea. There is no such explicit requirement in the rule on provisional dismissal thereby implying that it can be done before or after the plea. The rule on double jeopardy bars another prosecution of the offense charged while the rule on provisional dismissal bars the revival of the case after one or two years from the issuance of the dismissal order.

Various situations may crop up raising controversial and interesting issues regarding the application of these rules on dismissal of criminal cases. In the case of Almario vs. Court of Appeals (355 SCRA 1), citing the case of People vs. Bans (239CSRA 48), the Supreme Court ruled that an accused may still invoke double jeopardy although the dismissal is with his express consent as when he asks for it because of the unreasonable delay in the conduct of the trial in violation of his right to speedy trial. Apparently the dismissal here is in the nature of a provisional dismissal under Section 8, but the case can no longer be revived even within the one or two year time bar because double jeopardy has already set in.

The express consent of the accused in the provisional dismissal under section 8 is necessary to bar him from invoking double jeopardy if the case is subsequently revived within the one or two year time bar. So it would seem that the provisional dismissal contemplated in this rule is the one issued after the accused has entered his plea since on then will double jeopardy attach. But there is yet no definitive ruling on this point.

A provisional dismissal with the express consent of the accused and with notice to the offended party becomes permanent after the lapse of the one or two year time bar. This means that the case can no longer be revived. But can a new information or complaint for the same offense be re-filed? Is there a difference between revival of the case and refiling of the information? In People vs. Lacson, G.R. 149453, April 1, 2003, the Supreme Court Justices differ in their opinion on the matter.

One group says that revival is not similar to refiling such that even if the provisional dismissal has become permanent, a new information can still be filed. The permanence of the dismissal merely "augurs the demise of the unrevived cases but it does not prevent the State from exercising the right to prosecute the accused within the prescriptive period provided in Article 90 of the Revised Penal Code.

Another group is of the opinion that the permanent dismissal under Section 8 precludes the prosecution of the accused for the same offense under a new information. According to this faction, this "new rule (Sec.8) would be useless if it would leave unfettered the discretion of the prosecutor in reviving the same offense under the fig leaf of a new information"

There are therefore issues that have not been directly addressed. Clarifications seem to be necessary for the guidance of the parties to these criminal cases.

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