I. Motion to Quash (Rule 117)

I. Motion to Quash Information (Rule 117)

• Grounds – Sections 3 and 9
• Double Jeopardy – Section 7
• Provisional Dismissal – Section 8

> 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. (1)

Section 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. (2a)

Section 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. (3a)

Section 4. Amendment of the 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. (4a)

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. (n)

Section 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 for another charge. (5a)

Section 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. (6a)

Section 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 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. (7a)

Section 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. (n)

Section 9. Failure to move to quash or to allege any ground therefor. — 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 based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8)

Definition

It is a special pleading filed by the defendant before entering his plea, which hypothetically admits the truth of the facts spelled out in the complaint or information at the same time that it sets up a matter which, if duly proved, would preclude further proceedings. By a motion to quash, the defendant assumes the facts alleged in the information to be true. (People v. Odtuhan, G.R. No. 191566, 2013)

An order denying a motion to quash is interlocutory in character and absent a clear showing that the judge has committed a grave abuse of discretion or acted in excess of jurisdiction, the order is not appealable (Santos v. People, G.R. No. 173176, August 26, 2008).

NOTE: A motion to quash based on double jeopardy or extinction of the criminal action may, by their nature, be based on matters outside of the allegation of the information or complaint.

Time to move to quash

May be filed only before the accused has entered his plea to the accusatory pleading (Rule 117, Sec. 1)

Exceptions

• When the same does not charge an offense;
• Where the court has no jurisdiction over the case;
• When the offense or penalty had already been extinguished; or
• When further prosecuting the accused would thereby place him in double jeopardy.

NOTE: The court is not authorized to motu propio initiate a motion to quash. The right to file a motion to quash belongs only to the accused.

GROUNDS

The grounds to quash the information are:

• Facts charged do not constitute an offense
• Court has no jurisdiction over offense charged
• Court has no jurisdiction over the person of the accused
• Officer who filed the information had no authority to do so
• Does not conform substantially to the prescribed form
• More than one offense is charged except when a single punishment for various offense is prescribed by law
• Criminal action or liability has been extinguished by prescription
• Contains averments which, if true, would constitute a legal excuse or justification
• Accused has been previously convicted or acquitted of offense charged, or case has been dismissed or otherwise terminated without the express consent of the accused (double jeopardy) (Rule 117, Sec. 3)

An affidavit of desistance or pardon is not a ground for the dismissal of an action, once it has been instituted in court. (People v. Salazar, G.R. No. 181900, 2010)

The absence of probable cause for the issuance of a warrant of arrest is not a ground for quashal of the information, but is a ground of the dismissal of the case (People v. Sandiganbayan, G.R. No. 144159, 2004)

Matters of defense cannot be raised in a motion to quash (Antone v. Beronilla, G.R. No. 183824, 2010).

Omnibus Motion Rule

The court shall not consider any other ground other than those specifically stated in the motion to quash, except (1) lack of jurisdiction over the offense charged; and (2) the information does not charge an offense (Sec. 2, Rule 117).

Grounds to Quash a Subpoena Duces Tecum UPON MOTION Promptly Made

• It is unreasonable and oppressive
• Relevancy of the books, documents or things does not appear
• If the person in whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof.

NOTE: These grounds are not exclusive.

Forms and Contents

• In writing
• Signed by the accused or his counsel
• Distinctly specify the factual and legal grounds of the motion (Rule 117, Sec. 2)

Effect of Failure to Assert Any Ground of a Motion To Quash Before Pleading to a Complaint or Information

This failure to assert a ground may either be because:

• Accused did not file a motion to quash
• Accused filed a motion to quash but failed to allege the ground in said motion

General Rule: Failure to assert or timely assert a motion to quash shall be deemed a waiver of any objections (Rule 117, Sec. 9)

When the accused fails, before arraignment, to move for the quashal of such information and goes to trial thereunder, he thereby waives the objection and may be found guilty of as many offenses as those charged in the information and proved during trial. (Escandor v. People, G.R. No. 211962, 2020)

Where, in a motion to quash an information for libel, the prosecution objected to evidence showing the privileged nature of the communication, the court cannot quash the case as such defense must be raised at the trial. (Duque, et al. v. Santiago, etc. et al., G.R. No. L-16916, 1962).

But where the prosecution failed to object and such proof of privilege was admitted into the record, quashal was proper. (People v. Balao, G.R. No. L22250, 1968)

If the accused had already entered his plea, it is discretionary on the part of the court to permit him to withdraw that plea in order to file a motion to quash. (Mill v. People, et al., G.R. No. L-10427, 1957)

EFFECTS OF SUSTAINING THE MOTION TO QUASH

Note: The fundamental test in determining whether a motion to quash may be sustained based on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law. Extrinsic matters or evidence aliunde are not considered. (Herminio Disini v. Sandiganbayan, G.R. Nos. 169823-24, 2013)

Granting A Motion To Quash Appealable

An order granting a motion to quash is appealable, and the accused cannot claim double jeopardy if the dismissal is procured not only with his consent but at his own instance (Rule 117, Sec. 7)

Denial of a Motion to Quash

A petition for certiorari is not the proper remedy absent any showing of arbitrariness. The remedy is for the movant to go to trial without prejudice to reiterating the defenses invoked in the motion to quash (Acharon v. Purisima, G.R. No. 83754 February 18, 1991)

EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION IS NOT A BAR TO ANOTHER PROSECUTION

General Rule: When a motion to quash is sustained, the court may order that another complaint or information be filed (Rule 117, Sec. 6).

Exception/s: When the ground relied upon is:

• Extinction of criminal action or liability
• Double Jeopardy
• Accused has been previously convicted or acquitted of the offense charged
• Case against him was dismissed or otherwise terminated without the accused’s express consent (Rule 117, Sec. 6).

When Court Shall Order the Amendment of the Information or Complaint

General Rule: If the motion to quash is based on a defect which can be cured (ex. Allegations in the information do not constitute an offense, information does not conform substantially to the prescribed form), the court shall not immediately grant the motion but order that an amendment be made. (Rule 117, Sec. 4)

Exception/s: The motion shall be granted if despite such opportunity, the prosecution:

• Fails to make an amendment
• If despite the amendment, the complaint or information still suffers from the same defect (Rule 117, Sec. 4).

Order Denying Motion to Quash versus Order Sustaining Motion to Quash