Dear PAO,

Two years ago, the trial court granted my motion for the provisional dismissal of the case filed against me for Less Serious Physical Injuries. Up to now, I have not received any notice regarding the case. In relation thereto, I want to know when and how my case will be permanently dismissed. Thank you very much.

Dominador

Dear Dominador,

The dismissal of the case filed against you had become permanent one year after the issuance of the order of provisional dismissal. The provisional dismissal of criminal cases is governed by Section 8, Rule 117 of the Revised Rules of Criminal Procedure, which provides that:

“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 years or a fine of any amount, or both, shall become permanent one year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six years, their provisional dismissal shall become permanent two years after issuance of the order without the case having been revived.”

Considering that the penalty for Less Serious Physical Injuries constitutes imprisonment for a maximum period of six months, it will only take one year without the case having been revived for the provisional dismissal to become permanent.

The fact that you have not received any notice or order from the trial court since the provisional dismissal of your case is indicative that no action has been taken to revive it. However, to be certain that no revival of the case was made, you should check with the trial court about the status of your case and verify the date when the order was served on the public prosecutor to reckon the start of the one year period, following the pronouncement of the Supreme Court in People of the Philippines vs. Panfilo M. Lacson, GR 149452, April 01, 2003, penned by Associate Justice Romeo Callejo Sr., viz.:

“Although the second paragraph of the new rule states that the order of dismissal shall become permanent one year after the issuance thereof without the case having been revived, 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.”

Assuming that a proper provisional dismissal of your case was made, its non-revival within the one year period turned the dismissal into a permanent one. This permanent dismissal would constitute a bar to further prosecution of the case. If charges were later on filed for the same acts, you can invoke your right against double jeopardy because the permanent dismissal of your case is with prejudice to further prosecution.

We hope that we were able to answer your queries. This advice was based solely 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].