The other controversial and important issue discussed and apparently settled is the effect of Section 8, Rule 117 vis a vis the prescriptive period of offenses provided for in Article 90 and 91 of the Revised Penal Code(RPC).Eight of the ten in the majority and the four dissenters led by Justice Reynato Puno agree that the time bar in the new rule does not unduly shorten the prescriptive periods of offenses under the Revised Penal Code.The new rule merely regulates the time when the State must complete the prosecution of a pending case after a provisional dismissal, and provides the consequence when the State sleeps on its duty to revive it.After a case is filed in court, its conduct by the prosecution can be regulated by rules of procedure which the SC has the exclusive power to promulgate. Justice Bellosillo, with Justice Quisumbing concurring, however said that the permanent dismissal of the case arising from a provisional dismissal does not affect the right of the State to prosecute within the periods provided by Art. 90 of the RPC for said prescriptive periods cannot be affected directly or indirectly by any agreement or consent of the parties, much less held hostage by any procedural limitations.
Another issue where the majority of eight and the four dissenters seem to concur is the effect of the non revival of the provisionally dismissed cases after the lapse of the one or two year period. They are of the opinion that the dismissal becomes ipso facto permanent and the accused can no longer be charged anew for the same crime or another crime necessarily included therein. Such non-revival creates a disputable presumption of inexcusable delay on the part of the State in prosecuting the case. So the only way the State could revive the case beyond the time bar is to rebut this presumption by proof of compelling reasons justifying the delay.Of course the other opinion of the two other justices is that the permanency of the dismissal does not prevent the State from filing informations separate and distinct from those in the previously dismissed cases as long as they are within the prescriptive period provided by the RPC.
The other significant issue in a Section 8,Rule 117 situation is the stage of the proceedings when the case is provisionally dismissed.Is it before or after the accused has entered a plea? Justice Puno, with Justice Ynares- Santiago concurring, opines that it is not proper to require the element of prior plea because Section 8 is a new rule complete by itself and should not be construed with the rule on double jeopardy. Justices Bellosillo and Quisumbing on the other hand say that an accused cannot avail of the rule if he has yet to enter his plea to the charges or that trial on the merits has as yet to commence. The majority is not so clear on this point. While they speak of provisional dismissal "after the information has been filed" it can be implied that the provisional dismissal they refer to is one issued after the plea. This can be gleaned from the "raison d’etre" they cite for requiring the accused’s express consent to the provisional dismissal which is to bar him from invoking double jeopardy that arises only after the plea.
I support the view that the rule should be applied only to a provisional dismissal after the accused has entered his plea.It is simply not quite proper and just, and even disquieting to say the least, for an accused to be relieved of the burdens of criminal litigation by provisionally dismissing his case and fixing a time bar for its revival when he has not as much as openly denied his guilt or formally avowed that he is not guilty of the charges against him.
E-mail josesison@edsamail.com.ph