Dear PAO,

My brother, who worked as a family driver, was accused of the crime of Qualified Theft, for allegedly stealing a set of gold cufflinks worth P25,000. He was tried in court, but the case was eventually dismissed provisionally due to the continued absence of his boss.

Upon checking my brother’s records, we discovered that the court ordered the provisional dismissal of his case back in 2017, which was certainly more than five years ago. May we ask that my brother’s case be permanently dismissed?

Xelena

Dear Xelena,

You are correct. Your brother may pray for the permanent dismissal of his criminal case. Indeed, Rule 117 of the Rules of Court states the following:

“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.”

Furthermore, Qualified Theft is punishable by reclusion temporal, a penalty that exceeds six (6) years of imprisonment, according to the Revised Penal Code, to wit:

“Art. 309. Penalties. — Any person guilty of theft shall be punished by:xxx

“3. The penalty of prision correccional in its minimum and medium periods, if the value of the property stolen is more than 200 pesos but does not exceed 6,000 pesos.xxx

“Art. 310. Qualified theft. — The crime of theft shall be punished by the penalties next higher by two degrees than those respectively specified in the next preceding article, if committed by a domestic servant, or with grave abuse of confidence, or if the property stolen is motor vehicle, mail matter or large cattle or consists of coconuts taken from the premises of the plantation or fish taken from a fishpond or fishery, or if property is taken on the occasion of fire, earthquake, typhoon, volcanic eruption, or any other calamity, vehicular accident or civil disturbance.” (As amended by R.A. 120 and B.P. Blg. 71. May 1, 1980)

Considering that the provisional dismissal was ordered over two (2) years ago, you may ask the court to make it permanent in accordance with the Rules of Court. Kindly coordinate this with your brother’s defense counsel.

We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]