Criminal Procedure Reviewer PDF

CRIMINAL PROCEDURE REVIEWER 1. JURISDICTION OF THE SANDIGANBAYAN What offenses fall under the jurisdiction of the Sandiganbayan? For Sandiganbayan to acquire jurisdiction: 1. the offender must be in Section 4 of R.A. 10660; and 2. the offender commits violations of the following:...

CRIMINAL PROCEDURE REVIEWER 1. JURISDICTION OF THE SANDIGANBAYAN What offenses fall under the jurisdiction of the Sandiganbayan? For Sandiganbayan to acquire jurisdiction: 1. the offender must be in Section 4 of R.A. 10660; and 2. the offender commits violations of the following: a) RA 3019 (Anti-Graft & Corrupt Practices Act) b) RA 1379 (Forfeiture of illegally-acquired wealth) c) Chapter 2, Section 2, Title 7, Book 2 of the Revised Penal Code (such as bribery, malversation, illegal exaction, and other crimes by public officers) d) RA 7080 (Plunder Act), AMLA, Anti-Gift giving Act e) E.O.s 1,2,14,14-A (sequestration cases) f) any other offenses, either simple or complexed with other crimes, committed by government officials (in Sec. 4 of RA 10660) in relation to their office. Other offenses or felonies whether simple or complexed with other crimes committed by the public officials and employees mentioned above in relation to their office. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1,2 2,3 144 and 14-A,5 issued in 1986. 2. SUSPENSION OF THE ACCUSED GOVERNMENT OFFICIAL PENDENTE LITE “Any public officer against whom any criminal prosecution under a valid information under this Act or under the provisions of the Revised Penal Code on bribery is pending in court, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under any law, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension, unless in the meantime administrative proceedings have been filed against him.” --Sec 13, RA 3019 This is also called suspension pendente lite. If the accused can show that the information is not valid, he will not be suspended. The moment that the court finds that the information is valid, however, it becomes its ministerial duty to suspend the public officer for a period not exceeding 90 days. An indefinite suspension pendende lite is void. 3. TOPIC ON PREJUDICIAL QUESTION To review, the general rule is: the civil action arising from the offense should be suspended when the criminal action for said offense is filed later on. The exception is when there is a prejudicial question that must be adjudged in the civil action. In order for there to be a prejudicial question: (a) one case must be civil and the other criminal; and  (b) the civil case must be previously instituted. The requisites are: 1. that the previously instituted civil action involves an issue that is similar to or intimately connected to the issue raised in the subsequent criminal case; and 2. that the resolution of the issue will determine the guilt or innocence of the accused in the criminal case. “The elements of a prejudicial question 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.”--Sec 7, Rule 111 Dean’s example An example is when a case for the declaration of nullity of marriage is filed by a “second wife” and later on, a criminal case charging Bigamy is filed by the first wife against the husband and the second wife. On the part of the second wife, there is a prejudicial question because the validity of her marriage (the resolution of the issue in the civil case) will determine her guilt or innocence in the Bigamy case (criminal case). 4. CLARIFICATORY HEARING IN THE CONDUCT OF PRELIMINARY INVESTIGATION “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 6, Rule 111 Clarificatory Hearing - opportunity of the parties to be present but without the right to examine or cross-examine the party/witness being questioned. They may however, submit to the investigating officer questions which may be asked to the party or witness concerned. A formal-type hearing does not usually take place during a preliminary investigation but if the investigating officer deems that there are facts and issues to be clarified from a party or witness, a clarificatory hearing may be called. (g) During the clarificatory hearing, the investigating prosecutor may perform any or all of the following: (1) ask clarificatory questions; (2) have the case submitted for resolution; or (3) require the filling of a reply-affidavit and/or rejoiner-affidavit. The prosecutor may require the filling of a reply-affidavit if the counter-affidavit contains new issues of fact or questions of law which are material and substantial in nature. In such instances, respondent dhall have the opportunity to file his/her rejoiner-affidavit. --Sec. 10, DOJ Circular 015 5. SEARCH AS AN INCIDENT TO A VALID ARREST Definition A search warrant is an: a) Order in writing; b) In the name of the People of the Philippines;  c) Signed by the judge; d) Addressed to a peace officer; e) Commanding him to search a personal property described therein; and f) Bring it before the court. May a search warrant be oral? - No. It must be in writing. May a search warrant be issued in a civil case? - No because a search warrant is in the nature of a criminal process. May a search warrant be issued by the highest ranking PNP officer in the region? - No. It cannot be issued by the police. Not even the fiscal. It may only be issued by the court/judge. Suppose there is no particular or definite description in the search warrant. Is it valid? - No. A search warrant must describe the property to be searched in particular. A general search warrant is not a valid warrant. Can a search warrant be valid if it charges two or more offenses? - No, a scattershot warrant is not valid. Who files an application for a search warrant? - A peace officer will file an application for the issuance of a search warrant. Formal requirements - There is no need to accompany the application for a search warrant with a certificate of non-forum shopping because that only applies to civil cases. - Alternative answer: There is no need for a certificate of forum shopping because such is only required in initiatory pleadings. An application for search warrant is not an initiatory pleading. When or in what court should it be filed? 1) It should be filed with the court within whose territory the crime is committed. Note: There must be a crime. Otherwise, there will be no basis. It is the territory, not the jurisdiction, because this is not a criminal action. It is a separate proceeding. 2) If there is a compelling reason, the application may be filed with the court within the juridical region where the crime is committed, if the place of commission is known, or with the court where the search warrant is to be enforced. 3) If the criminal action has already been instituted, the application may be filed only with that court. What is the lifetime of a search warrant? - The lifetime of a search warrant is 10 days from the date it was issued. After that, it automatically becomes void and may no longer be extended What’s the effect of a void search warrant? - If the search warrant is void, the evidence obtained by means of that search warrant is not admissible. What is the remedy against a search warrant? 1) Motion to quash the search warrant; or 2) Motion to suppress illegally-obtained evidence.  - The remedies are in the alternate. If you file a motion to quash and the court denies it, a motion to suppress is no longer available. This is because you will be litigating the same issues. In what court may the motions be filed? The motion to quash the search warrant or motion to suppress may be filed with, and be acted upon by: 1) The court where the criminal action is pending; 2) If there is no criminal action yet, the court that issued the search warrant; 3) If the motion has not been resolved, and a criminal action is subsequently filed in another court, then the motion must be resolved by the latter court. Suppose the search warrant was issued by the RTC. When the criminal action was instituted, it was filed with the MTC because of the penalty involved. Where will the motion to quash or suppress evidence be filed? It should be filed with the MTC where the criminal action is pending. The supplication for search warrant may be filed: (a) as an incident to a pending criminal case; or (b) as an independent proceeding. Suppose a motion to quash is filed and granted. What is the remedy against an order quashing the search warrant? If the application is filed as an incident, the order quashing the search warrant is interlocutory (it doesn’t put an end to the case) and the remedy is a petition for certiorari. If the application is filed as an independent proceeding, the order quashing the search warrant is a final order (it terminates the case), and the remedy is an appeal. 6. THE CHARGE IS MURDER BUT THE EVIDENCE SHOWS THAT THE CRIME COMMITTED IS HOMICIDE, THE ACCUSED WANTS TO FILE BAIL A person charged with a criminal offense is not entitled to bail even before conviction if the charge against him is a capital offense and the evidence of guilt is strong. However, if it seems obvious that the evidence submitted by the prosecution for the purpose of showing that the evidence is insufficient to establish the charge of murder, then the accused is entitled to apply for bail. Murder (reclusion perpetua) = not bailable. Homicide: Before Conviction - the accused may be entitled to bail as a matter of right (may be denied if aggravating circumstances are present, potentially increasing the penalty beyond reclusion temporal) After Conviction - the right to bail becomes discretionary After Finality of Conviction - bail is no longer available. The accused will serve his sentence. Y was charged with Murder. No bail was recommended. What is the remedy of Y? - Y may file a Motion for Bail. - The motion will be set for summary hearing of which the prosecution will present evidence to prove that the evidence of guilt is strong.  - The accused may or may not present evidence. What happens after a bail hearing? - When the hearing is over, and the motion is submitted to the court for resolution, the court will summarize the evidence and make a conclusion as to whether the evidence of guilt is strong or not. - The court has 48 hours to resolve the motion. - If the evidence of guilt is not strong, bail becomes a matter of right. But if the evidence is strong, bail becomes neither a matter of right or discretion, and bail will be denied. - 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 8, Rule 114 When is bail neither a matter of right or discretion? 1. Before judgment of conviction by the RTC of an offense punishable by death, reclusion perpetua or life imprisonment, and the evidence of guilt is strong. 2. After judgment of conviction by the RTC of an offense punishable by death, reclusion perpetua or life imprisonment. No bail shall be allowed after the judgment of conviction has become final. If before such finality, the accused has applied 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. --Sec 24, Rule 114 3. After judgment of conviction by the RTC and the penalty imposed is imprisonment exceeding 6 years but less than death, reclusion perpetua or life imprisonment, and any of the following bail-negating circumstances is present: RPERF (a) The accused is a recidivist, quasi-recidivist, habitual delinquent, or he has committed an offense with the aggravating circumstance of reiteration; (b) The accused committed the offense while on parole, probation, or conditional pardon; (c) The accused evaded service of sentence, escaped legal confinement, or violated the conditions of his bail without valid justification; (d) There is undue risk that he will commit another crime during the pendency of his appeal; or (e) There is a probability of flight. --Sec 5, Rule 114 4. After the finality of judgment of conviction. - The accused cannot post bail anymore and can only apply for probation. - Promulgation of judgment becomes final after 15 days (period of taking up an appeal) or after the filing of an application for probation. - Appeal and probation are mutually exclusive remedies, such that if you appeal, you cannot file an application for probation and vice versa. - Note: One can file an application for probation if the penalty doesn't exceed 6 years imprisonment. 7. IN WHAT FORM MAY BAIL BE FILED; WHERE DO YOU FILE BAIL? In what form may bail be given? (What are the kinds of bail?) 1. Cash deposit - The accused or any person on his behalf posts bail in cash. After depositing the  amount required in court, a receipt will be issued. - The accused may file a Motion to Reduce Bail. - If acquitted, the accused gets back what he deposited. - The accused or any person acting in his behalf may deposit in cash with the nearest collector or 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. --Sec 14, Rule 114 - Upon submission of a proper certificate of deposit and a written undertaking showing compliance with the requirements of the conditions of bail, 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 14, Rule 114 2. Property bond - Any property owner can post bail for the accused. - If the assessed value is equal to or more than the amount of bail, it can be used to post bail. - A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. - Within 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 Register of Deeds if the land is registered, or if unregistered, in the Registration Book, 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 11, Rule 114 - The qualification 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/her real estate must be worth at least the amount of the 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 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 12, Rule 114 3. Corporate surety - The bonding company will post bail for the accused. The accused will pay the bonding company. - 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 10, Rule 114 4. Recognizance - It is a written undertaking to appear in court. - Whenever allowed by law or these Rules, the court may release a person in custody to his own recognizance or that of a responsible person. --Sec 15, Rule 114 Amount of bail - 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 ability of the accused to give bail;  (b) Nature and circumstances 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 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 9, Rule 114 SECTION 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, or 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, whether on preliminary investigation, 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. (17a) In what court may bail be filed? 1. (a) In the court where the case is pending; (b) but if the judge of that court is absent or unavailable, bail may be filed in the RTC or MTC of the same province, city, municipality where the case is filed; or (c) If the accused is arrested in a place other than where it was filed, then bail may be filed in the RTC of that place, and if there is no RTC, in the MTC of the same place. 2. If bail is a matter of discretion, or the accused desires to be released on recognizance, the application may only be filed with the court where the case is pending, and not in any other court. 3. If the accused has been convicted by the RTC and bail is a matter of discretion, the application for bail may be filed with the same RTC notwithstanding that a notice of appeal has already been filed (meaning, the said RTC has already lost jurisdiction over the case), provided that the record of the case has not yet been transmitted to the appellate court. Otherwise, it should be filed with the CA. 4. If the judgment of conviction by the RTC changed the nature of the offense from non-bailable to bailable, the application for bail may only be filed with, and be acted upon by, the appellate court. Note: Where the nature of the offense is changed from bailable to non-bailable, the question is wrong because this cannot happen (such judgment is void for violating the right of the accused to be informed of the nature and cause of the accusation against him). 5. Any person in custody but who hasn't been charged yet in any court may apply for bail in any court of the province, city, or municipality where he is held. --Sec 17, Rule 114 8. MOTION TO QUASH; IF THE COURT GRANTS A MOTION TO QUASH SHOULD THEY DISMISS THE CASE? Definition - A motion to quash is a special pleading filed by the accused before entering his plea, which hypothetically admits the truth of the facts in the complaint or information, and sets up a matter which, if proven, would preclude further proceedings. - A Motion to Quash is a hypothetical admission of the facts alleged in the information. The court, in resolving the motion, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information, except those admitted by the prosecution. When may a motion to quash be filed? - The accused may move to quash the complaint or information at any time before entering his plea. --Sec 1, Rule 117 What are the requisites of a valid motion to quash? --Sec 2, Rule 117 1. It must be in writing. 2. It must be signed by the accused or his/her counsel. 3. It must distinctly specify the factual and legal grounds. Note: The court will only consider the grounds stated in the motion filed. But Section 2 also states one exception—lack of jurisdiction over the offense charged. Thus, the court may consider this ground even if it is not stated in the motion. What are the grounds for Quashal? The nine grounds for the quashal of a complaint or information are: 1. that the facts charged do not constitute an offense; 2. that the court trying the case has no jurisdiction over the offense charged; 3. that the court trying the case has no jurisdiction over the person of the accused; 4. that the officer who filed the information had no authority to do so; Note: Section 4, Rule 112 requires that for a complaint or information to be valid, the investigating prosecutor who files it must have a prior written authority or approval of the provincial or city prosecutor, or chief state prosecutor, or the Ombudsman or his deputy, as the case may be. - People vs Garfin (2004): Without the approval of the city/provincial prosecutor, the information is void. Hence, the court never acquired jurisdiction. This defect cannot be cured even by the silence of the accused—he may invoke this ground at any time. - Quisay vs People (2016): There must be a showing that there was a prior approval of the city/provincial prosecutor. Merely stating such fact in a certification, especially one that is self-serving, is not good enough. 5. that it does not conform substantially to the prescribed form; 6. that more than one offense is charged, except when a single punishment for various offenses is prescribed by law; Note: This is also called “duplicitous” or “multiplicitous” charge. 7. that the criminal action or liability has been extinguished; Note: Criminal liability is totally extinguished by: (a) death of the convict (b) service of sentence (c) amnesty (d) absolute pardon (e) prescription of the crime (f) prescription of the penalty (g) marriage of the offended woman in applicable cases under Article 344 of the RPC. 8. that it contains averments which, if true, would constitute a legal excuse or justification; and  Note: Only exempting circumstances constitute a legal excuse. Justifying factors, like self-defense, must be proven. 9. double jeopardy. Note: There is double jeopardy when the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or terminated without his express consent. FJJOCMELD --Sec 3, Rule 117 Can there be other grounds? - No. The grounds for a motion to quash is sui generis or a class of its own. No other grounds may be considered by the court except for the nine grounds enumerated in Section 3, Rule 117. - The Revised Rules on Continuous Trial (AM-15-06-10-SC) also state lists “motion to quash information when the ground is not one of those stated in Sec. 3, Rule 117” as one of the prohibited motions. - People vs. Yutila: Lack of preliminary investigation is not a valid ground for a motion to quash, not only because it is not in Section 3, Rule 117, but because it does not impair the validity of the information or render it defective. It also doesn't affect the jurisdiction of the court over the case. Result of granting a Motion to Quash: Dismissal with consent of the accused unless the ground can be cured with an amendment e.g. the facts charged does not constitute an offense. The court, guided by the provisions of Sections 4 and 5, Rule 117 of the Revised Rules of Criminal Procedure, is more inclined to give the prosecution an opportunity to correct or cure the defect in the information by way of an amendment thereto (it appearing that the defects thereof can be cured by amendment). 9. THE EFFECT OF ABSENCE OF THE ACCUSED AND THE OFFENDED PARTY AT PRE-TRIAL Right to be present at all stages - All stages of the proceedings means from arraignment to promulgation of judgment. - “In all criminal prosecutions, the accused shall be entitled to the following rights: xxx (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 right without the assistance of counsel.” --Sec 1(c), Rule 115 When the accused is notified of the trial date but despite notice, he fails to appear on that day, may he be tried in absentia? - Yes. The absence of the accused without justifiable cause at the trial, when he had been given notice, shall be considered a waiver of his or her right to be present. Dean’s Examples: 1. PP vs. A – The accused was out on bail. Trial was set on July 16. However, it was not finished, so it was reset to another date (August 15), but the accused did not have notice of this date. May he be tried in absentia?  - No. The accused may only be tried in absentia if he had notice of the trial date. 2. PP vs. X – The accused X was a detention prisoner. He was notified of the trial date on July 16. On July 14, two days before trial, he escaped from detention. (a) Can X be tried in absentia on July 16? - Yes, because he had notice of the trial date. (b) Suppose the trial was not finished on that date (July 16) as the prosecution still had other witnesses to present, and the case was reset on August 15. Can X be tried in absentia on August 15? - Yes, notwithstanding the lack of notice. Being a detention prisoner who escaped, he may be tried in absentia on all the dates, regardless of whether he had notice or not. The Rules also state that when an accused under custody escapes, he or she shall be deemed to have waived his or her right to be present on all subsequent trial dates until custody over him or her is regained. Rights related to Due Process - “In all criminal prosecutions, the accused shall be entitled to the following rights: xxx (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. - (h) To have speedy, impartial and public trial. - (i) To appeal in all cases allowed and in the manner prescribed by law.” --Sec 1, Rule 115 May the pretrial be conducted even if the accused is absent? Yes May the pretrial be conducted even if the offended party is absent? Yes Provided, the prosecutor and the defense counsel are present and that the accused or the offended party were notified. 10. THE DISTINCTIONS BETWEEN RA 6981 AND RULE 119 REGARDING STATE WITNESS What are the differences between Discharge of an Accused under Rule 119 and Admission to the Witness Protection Program? 1) The Witness Protection Program (WPP) applies only to a grave felony or its equivalent under a special law. Rule 119 can apply to any offense. 2) The WPP requires that the witness or a member of his family within the second degree of consanguinity or affinity (like a brother or mother-in-law) is subjected to threat to life or bodily injuries. In Rule 119, there is no such requirement. 3) The WPP doesn’t apply to a member of a law enforcement body. In Rule 119, there is no such limitation. 4) In order to be qualified for the WPP, the witness need not be charged of any offense. In Rule 119, he must’ve been already charged. 5) In the WPP, the witness enjoys benefits like Cost of Living Allowance, housing, assistance from the DOJ, and change of identity. Rule 119 does not mention such benefits. 6) In the WPP, the immunity is granted by the DOJ, which has the prerogative to approve/admit or not to admit a witness into the program. The immunity granted in  Rule 119 comes from the court. Sample case: W applied for admission to the WPP. His application was approved by the DOJ, which is the sole authority to approve or not approve any application for admission to the WPP. For a person like W, should there be a criminal case against him pending in court? No, unlike in a discharge under Rule 119 where there must be a case filed in court. Sample case 2: People vs XYZ X, Y, and Z were arraigned. While the case was undergoing trial, the DOJ issued to X a certificate of admission to the WPP, so that X may testify as a state witness. Y and Z opposed the presentation of X as a witness against them. They alleged that there was non-compliance to the requirement of a sworn statement, and that there was no motion for the discharge of X. Can X testify as a state witness? Is this procedurally correct? Yes, because this is admission to the WPP. The law that applies is RA 698, not Rule 119. X can testify, provided that: a. There is a grave felony or its equivalent under a special law. b. The witness or a family member within the second degree is subjected to life threat or bodily injuries. c. The witness is not a member of any law enforcement agency. Witness Protection Program (RA 6981) State Witness (Rule 119) 1. Applies only to grave felonies or their Applies to all offenses equivalent under special laws 2. Witness or relatives within the second degree No such requirement of consanguinity or affinity is subjected to threat to life or bodily injuries 3. Applicant should not be a law enforcing officer No such requirement 4. Applicant may not be charged elsewhere Must be charged of the same offense 5. Witness need not an accused himself He must be one of the accused 6. Enjoys certain benefits and privileges e.g. Immunity is granted by the court housing, relocation, allowance, etc. 7. Immunity is granted by the DOJ 11. PROMULGATION OF JUDGMENT IN THE ABSENCE OF A DEFENSE COUNSEL Section 6, Rule 120 of the Rules of Court is likewise of no help to the respondent. It does not require the presence of the counsel during the promulgation of a judgment, viz: 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 is outside the province or city, the judgment may be promulgated by the clerk of court. 12. THE REMEDY OF THE ACCUSED IF THE JUDGEMENT IS PROMULGATED IN HIS/HER ABSENCE Sample case: Suppose that on July 16, at 8:30 in the morning, the accused was notified of the promulgation, but later on did not appear in court for it. The judgment was recorded in the criminal docket and the accused received a copy of it on July 19. When he opened the envelope, he was not surprised that he lost because his lawyer has an untarnished record of losing. So he decided to appeal. He was told that he has 15 days to do so. When will he start counting the 15 days? Until when can he appeal? The question is misleading because the accused cannot appeal in this case. By failing to appear despite notice, the accused loses all remedies against the judgment. Is there anything that the accused can do to regain the remedies he has lost when he failed to appear despite notice? Yes. Within 15 days from promulgation of judgment, the accused must (a) surrender himself to the court; and (b) file a motion for leave to avail the remedies. He must do both things to regain the remedies. In his motion, he must explain why he failed to appear on the date of promulgation. If the court finds the explanation meritorious, the motion will be granted, the court will issue an order to the effect, and a copy of the order will be served to the accused. Then the accused will have 15 days from the service of the copy of the order to avail himself of the remedies he has lost. An example of a meritorious reason is hospital confinement, if the accused can show evidence of it. Sample case: The accused failed to appear during the promulgation. The judgment was promulgated in his absence. Within 15 days, the accused was arrested. While in jail, he filed a motion for leave to avail of the remedies. He mentioned the reason why he failed to appear, and the court found it to be meritorious. The prosecution opposed the motion for leave, arguing that here, the accused did not surrender himself—he was, in fact, arrested. If you were the judge, would you grant the motion for leave? Yes. Technicalities should be set aside in order to better serve the interests of justice. After all, the reason was meritorious. 13. THE EFFECT OF APPLICATION FOR PROBATION ON THE JUDGMENT The trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. When a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. --R.A. 10707 14. IF ALLOWED SUSPENSION OF SENTENCE WHEN THE ACCUSED IS MINOR If the accused is a youthful offender when he committed the crime and the judgement is a judgement of conviction, the court will issue an order for a suspension of judgement automatically. *Youthful Offender - over 15 but less than 18 at the time of the commission of the crime. *Under the law, suspension of sentence does not apply in offenses where the penalty prescribed is death, reclusion perpetua or life imprisonment = 1 or 2 degrees lower (privileged mitigating circumstance of minority). Suppose because of a delay in the trial, the judgement was promulgated when the accused is already 20 years old, is he entitled? YES. Suppose he is already 76 when the judgement is promulgated, is he still entitled? YES. The accused will be endorsed to the DSWD where he will serve his sentence. If he is shown to be incorrigible, he will be returned to the court for sentencing. 15. THE EFFECT OF THE JUDGEMENT OF AN APPELATE COURT IN AN APPEALED CASE ON THE ACCUSED WHO FILED THE APPEAL The judgement which is the subject of the appeal shall stay (suspended) for those who appealed. Because it is stayed, it will not lapse into finality. On the other hand, The judgment will become final for those who do not appeal and they shall start serving their sentence. The judgment from the appellate court will not affect those who do not appeal unless the judgment is favorable and applicable to them. --Section 11, Rule 122 16. MODES OF APPEAL (a) Ordinary appeal. — The appeal 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 serving a copy thereof upon the adverse party. No record on appeal shall be required except in special proceedings and other cases of multiple or separate appeals where law on these Rules so require. In such cases, the record on appeal shall be filed and served in like manner. (b) Petition for review. — 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 in accordance with Rule 42. (c) Appeal by certiorari. — In all cases where only questions of law are raised or involved, the appeal shall be to the Supreme Court by petition for review on certiorari in accordance with the Rule 45. (n) --Section 2, Rule 41 17.ABOUT THE CONDUCTING OF SEARCH IN THE ABSENCE OF A HOUSE OCCUPANT 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. (7a) --Section 8, Rule 126