Remedial Law, Legal and Judicial Ethics, with Practical Exercises › Criminal Procedure › Preliminary Investigation (Rule 112, partly repealed by AM 24- 02-09-SC; Department of Justice [DOJ] DC 15 and 28, s. 2024) › Remedies from Investigator’s Action

b. Appeal (See also DOJ DC 70 and 70-A, s. 2000, and DC 27, s. 2022)

Permissible appeal by the People

  • When the right of the offended parties to appeal an order of the trial court which deprives them of due process;
  • Where the information was quashed prior to arraignment, the prosecution may appeal the order sustaining the motion to quash because before a plea is entered, no jeopardy attaches;
  • When the case was provisionally dismissed with the express consent of the accused, the same may be refilled by the fiscal without violating the right against double jeopardy; or
  • When the trial court gravely abused its discretion, as when it dismissed the case due to non-appearance of a vital witness who was not properly notified of the date of trial, certiorari will lie because such a grave abuse of discretion is tantamount to lack or excess of jurisdiction.

Role of Secretary of Justice

The Secretary of Justice is not prevented from entertaining an appeal from the accused or from the offended party even after the information has been filed and the trial court has arraigned the accused. Section 4 of DOJ 223 should be construed as merely enjoining the Secretary of Justice to refrain, as far as practicable, from entertaining a petition for review or appeal from the action of the prosecutor once the complaint or information is filed in court.

What is the mode of appeal

Within fifteen (15) days from the date of notice of the adverse judgment or denial of motion for reconsideration, any party may appeal to the Supreme Court under Rule 45 of the Rules of Court. The appeal may raise questions of fact (R7, S16)

WRIT OF KALIKASAN WRIT OF CONTINUING MANDAMUS
Subject Matter
Available against an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health, or property of inhabitants in two or more cities or provinces.Magnitude of environmental damage is a condition sine qua non in a petition for the issuance of a writ of Kalikasan and must be contained in the verified petition. Directed against:The unlawful neglect in the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein; orThe unlawfully exclusion of another from the use or enjoyment of such right and in both instances, there is no other plain, speedy and adequate remedy in the ordinary course of law.
Who may file
Natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose right to a balanced and health ecology is violated or threatened to be violated. Only the one who is personally aggrieved by the unlawful act or omission.
Respondent
May be a private individual or entity. Only the government or its officers.
Exemption from docket fees
Supreme Court or Any of the stations of the Court of Appeals The Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred; The Court of Appeals; or The Supreme Court
Discovery measures
Incorporates the procedural environmental right of access to information through the use of discovery measures such as ocular inspection order and production order. Does not contain any provision for discovery measures
Damages for personal injury
No damages may be awarded.A party who avails of this petition but who also wishes to be indemnified for injuries suffered may file another suit for the recovery of damages since the Rule on Writ of Kalikasan allows for the institution of separate actions. Allows damages for the malicious neglect of the performance of the legal duty of the respondent, identical to R65, RoC.

Requisites:

  • Offense involved is punishable by reclusion perpetua to death
  • New and material issues are raised which were not previously presented before the Department of Justice and were not ruled upon
  • Prescription of the offense is not due to lapse within 6 months from notice of questioned resolution
  • Appeal or petition for review is filed within 30 days from notice (Memorandum Circular No. 58, June 30, 1993)

APPEAL IN ADMINISTRATIVE CASES

APPEALS FROM RESOLUTIONS OF THE OFFICE OF THE CITY PROSECUTOR

Where to appeal

For appeals from resolutions of the the Chief State Prosecutor, Regional State Prosecutors and Provincial/City Prosecutors in cases subject of preliminary investigation or reinvestigation, an appeal may be brought to the Secretary of Justice within the period and manner provided in this Circular. (Secs. 1 & 2, DOJ Department Circular No. 70)

Appeal to the Office of the President

Appeals from or petition for review of decisions or resolutions of the Secretary of Justice on preliminary investigations of criminal cases are entertained by the Office of the President under the following conditions which have to be established as jurisdictional facts:

  • The offense involved is punishable by reclusion perpetua to death;
  • New and material issues are raised which were not previously presented before the Secretary of Justice;
  • The prescription of offense is not due to lapse within six (6) months from notice of the questioned resolution;
  • The appeal or petition for review is filed within thirty (30) days from notice. (Memorandum Circular No. 58, s. 1993)

Note: If the appeal does not clearly fall within the jurisdiction of the Office of the President, the appeal shall be dismissed outright.

Authorities

  • DOJ Department Circular No. 70, Sec. 1
  • Memorandum Circular No. 58
  • Memorandum Circular No. 58, Sec. 1993
  • Rule on Writ of Continuing Mandamus (special procedural rule)
  • Rule on Writ of Kalikasan (Rules of Court / special procedural rule)
  • Rules of Court, Sec. 45
  • Rules of Court, Sec. 65
  • Rules of Court, Sec. 7