3. Provisional Dismissal

Requisites before trial can be suspended on account of absence of witness

• Witness is essential
• The party who applies has been guilty of no neglect
• The witnesses can be had at the time to which the trial is deferred and incidentally that no similar evidence could be obtained
• An affidavit showing the existence of the above circumstances must be filed.

NOTE: This has been qualified by the aforementioned rules on provisional dismissal.

PROVISIONAL DISMISSAL

Contemplates that the dismissal of the criminal action is not permanent and can be revived within the period set by the Rules of Court.

Requisites of a Provisional Dismissal

• Consent of the prosecutor
• Consent of the accused;
• Notice to the offended party; and
• Public prosecutor is served with a copy of the order of provisional dismissal (Rule 117, Sec. 8).

Examples on Grounds on Which Provisional Dismissal May Be Granted

• Prosecution was not prepared for trial
• Repeated absences in court
• Witness did not appear at the trial

When Provisional Dismissal Becomes Permanent (Rule 117, Sec. 6)

The provisional dismissal shall become permanent if not revived within:

One year shall start from the receipt of the prosecutor of the order of provisional dismissal

Rule 117, Sec. 8 provides that, “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.”

However, the provision should be construed to mean that the order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has control of the prosecution without the criminal case having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is served with a copy of the order of dismissal. (Co v. New Prosperity Plastic Products, G.R. No. 183994, 2014).

Note: When a criminal case is provisionally dismissed with the express consent of the accused, the case may be revived by the State within the time prescribed by the rules. There is no violation of due process as long as the revival of a provisionally dismissed complaint was made within the time-bar provided under the law. (Saldariega v. Panganiban, GR Nos. 211933 & 211960, 2015)

Time-Bar Rule on Provisional Dismissal

A motion to withdraw information differs from a motion to dismiss. While both put an end to an action filed in court, their legal effect varies.

Motion to Withdraw Information falls within the ambit of Section 8, Rule 117 of the Revised Rules of Criminal Procedure which provides that the law on provisional dismissal becomes operative once the judge dismisses, with the express consent of the accused and with notice to the offended party (Torres, Jr. vs. Aguinaldo, G.R. No. 164268, 2005).

Quashal vs. Provisional Dismissal

If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117. All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal. (Los Baños v. Pedro, G.R No. 173588, 2009)

Additional Rules on Provisional Dismissal (Sec. 10, A.M. No. 12-11-2-SC, 2014)

• When the delays are due to the absence of an essential witness whose whereabouts are unknown or cannot be determined and, therefore, are subject to exclusion in determining compliance with the prescribed time limits which caused the trial to exceed one hundred eighty (180) days, the court shall provisionally dismiss the action with the express consent of the detained accused.
• When the delays are due to the absence of an essential witness whose presence cannot be obtained by due diligence though his whereabouts are known, the court shall provisionally dismiss the action with the express consent of the detained accused provided:
• the hearing in the case has been previously twice postponed due to the non-appearance of the essential witness and both the witness and the offended party, if they are two different persons, have been given notice of the setting of the case for third hearing, which notice contains a warning that the case would be dismissed if the essential witness continues to be absent; and
• there is proof of service of the pertinent notices of hearings or subpoenas upon the essential witness and the offended party at their last known postal or e-mail addresses or mobile phone numbers.
• For the above purpose, the public or private prosecutor shall first present during the trial the essential witness or witnesses to the case before anyone else. An essential witness is one whose testimony dwells on the presence of some or all of the elements of the crime and whose testimony is indispensable to the conviction of the accused.