Esmeña vs. Pogoy

A provisional dismissal of a criminal case after the accused has been arraigned and has pleaded, entered without the express consent of the accused, is a dismissal equivalent to acquittal and bars any subsequent prosecution for the same offense under the double jeopardy clause.

Petitioners Generoso Esmeña and Alberto Alba, together with three co-accused, were charged with grave coercion before the City Court of Cebu City. The information alleged that they forced a priest, Father Tomas Tibudan, to withdraw P5,000 from a bank and hand over the money because he had lost it to them in a card game. The case suffered repeated postponements attributable to the complainant’s requests and the fiscal’s loss of records.

• Charge and Arraignment: Petitioners Generoso Esmeña and Alberto Alba, together with Genaro Alipio, Vicente Encabo, and Bernardo Villamira, were charged with grave coercion. They allegedly forced Reverend Father Tomas Tibudan to withdraw P5,000 and deliver it to them after he lost the money in a card game. The case was calendared for October 4, 1978 but moved to December 13, 1978 at the complainant’s telegraphic request. Petitioners were not duly notified of the December setting and did not appear. They were arraigned on January 23, 1979 and pleaded not guilty. No trial followed because complainant desired another postponement.

• Postponements and Speedy Trial Invocation: The fiscal lost his case record, causing the cancellation of the June 18, 1979 hearing. Respondent judge then set trial “for the last time on August 16, 1979.” When the case was called on that date, the fiscal informed the court that the private prosecutor had received a telegram from Father Tibudan stating he was sick. No medical certificate was presented. Petitioners’ counsel opposed any postponement and invoked the constitutional right to a speedy trial, demanding that the case be heard that day or dismissed.

• Provisional Dismissal: Respondent judge provisionally dismissed the case as to the four accused present, noting that the case had been dragging, the accused were ready for trial, but the fiscal had no witness. The judge observed that no medical certificate supported the claim of illness. The order was issued without securing the express consent of petitioners.

• Revival and Double Jeopardy Motion: On September 12, 1979—twenty-seven days later—the fiscal moved to revive the case, attaching a belated medical certificate attesting to complainant’s influenza on August 16. The fiscal invoked Lauchengco vs. Alejandro for the proposition that a provisional dismissal with the conformity of the accused lacks finality and may be revived. Petitioners did not oppose that motion, but on October 24, 1979 they moved to dismiss on the ground of double jeopardy, arguing that they never consented to the provisional dismissal. The trial court denied the motion, prompting the certiorari petition. The Solicitor General agreed with petitioners that revival would violate double jeopardy.

• Double Jeopardy: Petitioners argued that the provisional dismissal was entered without their express consent and over their objection invoking the right to speedy trial. They maintained that because they did not agree to the dismissal, it amounted to an acquittal under Rule 117, Section 9 of the Rules of Court, and that any revival would place them in double jeopardy.

• Non-finality of Provisional Dismissal: Respondent fiscal contended that a provisional dismissal made with the conformity of the accused does not have the character of finality and may be revived without filing a new information, citing Lauchengco vs. Alejandro. The trial court, in granting the revival, appeared to adopt this view, noting that the accused did not initially oppose the fiscal’s motion for revival.

• Double Jeopardy: Whether the revival of a criminal case that was provisionally dismissed after the accused had been arraigned, without their express consent, violates the constitutional prohibition against double jeopardy.

• Double Jeopardy: The provisional dismissal placed petitioners in former jeopardy because it was issued without their express consent. Under Section 22, Article IV of the 1973 Constitution and Rule 117, Section 9 of the Rules of Court, a dismissal or termination of a case after arraignment and plea operates as an acquittal unless the accused expressly assented to it. In this case, petitioners did not consent; they insisted on trial and invoked speedy trial. The trial judge acted on his own volition in dismissing the case. The use of the word “provisional” did not alter the dismissal’s legal effect. Even if petitioners, after invoking their right to speedy trial, had moved for dismissal themselves, the dismissal would still constitute an acquittal barring further prosecution, because it would have resulted from the prosecution’s failure to present evidence after their motion for postponement was denied. Since the requisites of former jeopardy—valid complaint, competent court, and arraignment with plea—were present, the revival order of October 8, 1979 and the order denying the motion to dismiss were invalid.

• Requisites of Double Jeopardy — For legal jeopardy to attach, there must be (a) a valid complaint or information, (b) before a court of competent jurisdiction, and (c) the accused has been arraigned and has pleaded. When these conditions are present, an acquittal, conviction, or dismissal without the express consent of the accused constitutes res judicata and bars another prosecution for the same offense.

• Dismissal Without Express Consent as Acquittal — A provisional dismissal entered after the accused has pleaded, without the accused’s express consent, is a dismissal equivalent to an acquittal under Rule 117, Section 9. The label “provisional” does not remove the jeopardy that has attached.

• Effect of Invoking Speedy Trial — If the accused wishes to exercise the constitutional right to a speedy trial, the proper course is to demand trial, not dismissal. When the prosecution’s motion for postponement is denied and the prosecution cannot or does not present evidence, a dismissal upon the accused’s motion amounts to an acquittal and bars further prosecution. (Gandicela vs. Lutero, 88 Phil. 299; People vs. Diaz, 94 Phil. 714-717)

• Best Practice for Provisional Dismissals — To avoid double jeopardy issues, trial judges should require the accused and counsel to sign the minutes or a portion of the record signifying conformity to a provisional dismissal, and the order itself should explicitly state that consent was given.

• “If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant.” — This passage encapsulates the rule that a dismissal precipitated by the prosecution’s failure to proceed after denial of postponement is an acquittal.

• Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA 175 — Cited by the fiscal for the rule that a provisional dismissal with the conformity of the accused lacks finality and may be revived. Distinguished: here, the accused did not give their conformity, rendering the rule inapplicable.
• Gandicela vs. Lutero, 88 Phil. 299 — Controlling precedent establishing that a dismissal upon the accused’s motion after the prosecution cannot produce evidence following denial of a postponement is an acquittal.
• Esguerra vs. De la Costa, 66 Phil. 134 — Authority for the proposition that the word “provisional” does not change the legal effect of a dismissal that places the accused in jeopardy.
• Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811 — Reiterated that dismissal of a criminal case on motion of the accused due to the prosecution’s unpreparedness because the complainant and witnesses did not appear is equivalent to an acquittal barring further prosecution.

• Section 22, Article IV (Bill of Rights), 1973 Constitution — “No person shall be twice put in jeopardy of punishment for the same offense.” Applied as the constitutional foundation for barring the revival of the provisionally dismissed case.
• Section 9, Rule 117, Rules of Court — Defines former conviction or acquittal and former jeopardy, specifying that dismissal or termination of a case without the express consent of the accused after a plea is a bar to another prosecution. Applied to treat the provisional dismissal without consent as an acquittal.

Barredo (Chairman), Concepcion Jr., Abad Santos, and De Castro, JJ., concurred.