PEOPLE OF THE PHILIPPINES and SPS. AMADO and TERESA RUBITE, petitioners, vs. HON. FILOMENO A.

VERGARA, PRESIDING JUDGE, RTC, BR. 51, PALAWAN, and LEONARDO SALDE, SR., LEONARDO SALDE, JR., FLORESITA SALDE, GLORIA SALDE-PANAGUITON, and JOJETA PANAGUITON, respondent. V. Dennis for petitioners. Perfecto delos Reyes and Roberto delos Reyes for private respondents. DECISION BELLOSILLO, J p: Jeopardy is the peril in which an accused is placed when put on trial before a court of competent jurisdiction upon an indictment or information which is sufficient in form and substance to sustain a conviction. No person can be twice put in this peril for the same offense. The Constitution prohibits it. Nemo debet bis puniri pro uno delicto. This is the defense raised by accused-private respondents after respondent Judge, upon motion of the Provincial Fiscal, ordered without notice and hearing the dismissal of Crim. Cases Nos. 7396 and 7397 both for frustrated murder, which thereafter were reinstated upon initiative of the Secretary of Justice and docketed anew as Crim: Cases Nos. 8572 and 8573. It appears that on 7 April 1988, 3rd Asst. Provincial Fiscal Luis E. Estiller of Puerto Princesa City filed Crim. Cases Nos. 7396 and 7397 for frustrated murder against accused Leonardo Salde, Sr., Leonardo Salde, Jr., Floresita Salde, Gloria Salde-Panaguiton and Jojeta Panaguiton for allegedly conspiring together in attacking and taking turns in assaulting complainants, the spouses Teresa and Amado Rubite, by throwing stones at Amado Rubite and hacking him with a bladed weapon, hitting him on the left fronto-parietal area which would have caused his death in Crim. Case No. 8572 (G.R. No. 101557), and by striking Teresa with wood and stones and hacking her with a bolo which would have caused her death in Crim. Case No. 8573 (G.R. No. 101558). On 3 June 1988, accused Leonardo Salde, Sr., Leonardo Salde, Jr., Floresita Salde and Gloria Salde-Panaguiton were arraigned. They all pleaded "not guilty." On 2 August 1988, accused Jojeta Panaguiton was also arraigned and likewise entered a plea of "not guilty." On 19 September 1988, when the cases were initially called for trial, the Prosecuting Fiscal together with counsel for accused jointly moved for the suspension of the hearing pending the outcome of the motion filed by the accused for reinvestigation of the cases against them, which Provincial Fiscal Eustaquio Z. Gacott, Jr., later resolved in their favor. On 12 December 1988, counsel for the offended parties gave, notice to the Provincial Fiscal of their intention to appeal the latter's resolution to the Department of Justice. On 2 February 1989, pending appeal to the Department of Justice, Provincial Fiscal Gacott, Jr., moved for the dismissal of the cases on the ground that the reinvestigation disclosed that petitioner-spouses Amado and Teresa Rubite were the real aggressors and that the accused only acted in self-defense. On 9 February 1989, acting on the motion of the Provincial Fiscal, the Regional Trial Court of Palawan, Br. 52, ordered the dismissal of Crim. Cases Nos. 7396 and 7397. Meanwhile, on 1 March 1990, the Secretary of Justice ordered the Provincial Prosecutor to refile the Informations. Hence, on 6 April 1990, two (2) new Informations for frustrated murder against the same accused were filed by Acting Provincial Prosecutor Clarito A. Demaala, docketed as Crim. Cases Nos. 8572 and 8573. On 13 May 1991, after pleading "not guilty" to the new Informations, the accused moved to quash on the ground of double jeopardy, which was opposed by the Office of the Provincial Prosecutor. On 10 July 1991, the trial court granted the motion and dismissed Crim. Cases Nos. 8572 and 8573. The motion to reconsider the order of 10 July 1991 filed by Acting Provincial Prosecutor Demaala was denied on 16 August 1991. Hence, this petition for certiorari filed by private petitioners Amado and Teresa Rubite, complainants in the court below. Petitioners contend that the filing of the two (2) new Informations did not place accused-private respondents in double jeopardy since the dismissal of the previous cases was made with the latter's express consent, which can be equated with

their motion for reinvestigation of the cases, dismissal of the cases being their ultimate intention in moving for reinvestigation. It is the position of petitioners that when the dismissal is with the express consent of the accused, such dismissal cannot be the basis of a claim of double jeopardy. Petitioners further submit that the dismissal of the previous cases is null and void as the motion to dismiss filed by the Provincial Prosecutor which led to the dismissal of the cases did not contain a notice of hearing; hence, it was then a "mere scrap of paper" which the lower court should not even have entertained. Finally, petitioners maintain that where the prosecution has been deprived of a fair opportunity to prosecute and prove its case, its right to due process is violated. In this regard, the Solicitor General, interestingly, concurs with petitioners. Instead of filing a Comment as We required him to do, he filed a Manifestation, citing Gumabon v. Dir. of the Bureau of Prisons, and submitting that "[c]onsidering that the Order of respondent judge dated February 9, 1989 favorably granting the Motion to Dismiss without notice and hearing constituted a violation of basic constitutional rights, the respondent court was consequently ousted of its jurisdiction when its Order violated the right of the prosecution to due process." In effect, the first jeopardy never terminated as the respondent trial court was not competent to issue the 9 February 1989 Order. While the Solicitor General concedes that "[w]hat should have been done by the new Provincial Prosecutor was to refile the Informations in Crim. Cases Nos. 7396 and 7397 and not to file new Informations which were docketed as Crim. Cases Nos. 8572 and 8573," he nevertheless avers that the filing of the new Informations amounted merely to a continuation of the first jeopardy and did not expose the private respondents to a second jeopardy. People v. Bocar laid down the requisites of a valid defense of double jeopardy: (a) a first jeopardy must have attached prior to the second; (b) the first jeopardy must have been validly terminated; and, (c) the second jeopardy must be for the same offense as that in the first. Consequently, there being no valid termination of the first jeopardy, the defense of double jeopardy must fail. Private respondents on the other hand, invoking the now repealed Sec. 9, Rule 117, of the Rules of Court, asseverate that the "rules provide and speak of EXPRESS CONSENT" which cannot be equated with intention. Hence, while they may have intended to have their cases dismissed upon moving for reinvestigation, they never gave their express consent to the dismissal of the cases. In fact, they never sought the dismissal of the charges against them. Furthermore, private respondents, in response to the allegation that the orders of respondent judge dismissing the first two cases were null and void, argue that if indeed the dismissal orders were null and void, petitioners should not have waited for the filing of the new Informations and their subsequent quashal. They should have immediately challenged the dismissal order. After sleeping on their rights, they cannot belatedly say that they were denied due process. The cases at bar raise two (2) fundamental issues: (a) whether private respondents gave their express consent to the dismissal of the original Informations; and, (b) whether the first jeopardy was invalidly terminated. We answer both in the negative. Then, double jeopardy lies. The right against double jeopardy prohibits any subsequent prosecution of any person for a crime of which he has previously been acquitted or convicted. The objective is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the peril and anxiety of a second charge against him for the same offense. This Court, as early as ninety (90) years back, in Julia v. Sotto, said "Without the safeguard this article establishes in favor of the accused, his fortune, safety, and peace of mind would be entirely at the mercy of the complaining witness, who might repeat his accusation as often as dismissed by the court and whenever he might see fit, subject to no other limitation or restriction than his own will and pleasure. The accused would never be free from the cruel and constant menace of a never-ending charge, which the malice of the complaining witness might hold indefinitely suspended over his head . . ." Que v. Cosico enumerates the requisites which must concur for double jeopardy to attach: (a) a valid complaint or information; (b) a court of competent jurisdiction; (c) the accused has pleaded to the charge; and, (d) the accused has been convicted or acquitted or the case dismissed or terminated without the express consent of the accused.

The concurrence of all these circumstances constitutes a bar to a second prosecution for the same offense, an attempt to commit the said offense, a frustration of the said offense, or any offense which necessarily includes or is necessarily included in the first offense charged. In the cases before Us, it is undisputed that valid Informations for frustrated murder, i.e., Crim. Cases Nos. 7396 and 7397 were filed against private respondents before the Regional Trial Court of Palawan, a court of competent jurisdiction. It is likewise admitted that private respondents, after being properly arraigned, entered a plea of not guilty. The only question then remaining is whether the cases against them were dismissed with their express consent. Express consent has been defined as that which is directly given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. This is hardly what private respondents gave. What they did was merely to move for reinvestigation of the case before the prosecutor. To equate this with express consent of the accused to the dismissal of the case in the lower court is to strain the meaning of "express consent" too far. Simply, there was no express consent of the accused when the prosecutor moved for the dismissal of the original Informations. The Solicitor General then claims that there can be no valid defense of double jeopardy since one of the requisites for its valid defense, i.e., that there be a valid termination of the first jeopardy, is unavailing. He further argues that the motion to dismiss filed by the public prosecutor should not have been entertained, much less granted, since there was no notice of hearing, nor was it actually set for hearing. We do not agree. While it may be true that, as a general rule, all motions should contain a notice of hearing under Rule 15 of the Rules of Court, these cases present an unusual situation where the motion to dismiss filed negates the necessity of a hearing. Here, it was the public prosecutor himself who after instituting Crim. Cases Nos. 7396 and 7397 filed a motion to dismiss on the ground that after a reinvestigation it was found that ". . . the evidence in these cases clearly tilts in favor of both accused. The spouses Amado and Teresa Rubite were the aggressors and the accused Salde, Sr. and his co-accused merely defended themselves from the attack of the Rubites. Consequently, it would be unfair, arbitrary and unjustified to prosecute the accused in the above-entitled case." Besides, who should invoke "lack of notice" but the party deprived of due notice or due process. And when the Provincial Prosecutor moved to dismiss on the ground that the complaining witnesses were instead the aggressors and the accused simply acted in self-defense, would the accused have opposed the motion as to require that he be first notified before the cases against him be dismissed? Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides that "[a]ll criminal actions either commenced by complaint or by information shall be under the direction and control of the fiscal." It must be remembered that as public prosecutor he is the "representative not of the ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such , he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." Hence, the fiscal or public prosecutor always assumes and retains full direction and control of the prosecution. The institution of a criminal action depends upon his sound discretion. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court; whether a prima facie case exists to sustain the filing of an Information; whether to include in the charge those who appear to be responsible for the crime; whether to present such evidence which he may consider necessary; whether to call such witnesses he may consider material; whether to move for dismissal of the case for insufficiency of evidence. As in the case at bar, he may move for the dismissal of the case if he believes that there is no cause of action to sustain its prosecution, which was what in fact he did after being convinced that it would be "unfair, arbitrary and unjustified to prosecute the accused" who were really the victims, as the reinvestigation showed.

Since it was the prosecuting officer who instituted the cases, and who thereafter moved for their dismissal, a hearing on his motion to dismiss was not necessary at all. It is axiomatic that a hearing is necessary only in cases of contentious motions. The motion filed in this case has ceased to be contentious. Definitely, it would be to his best interest if the accused did not oppose the motion. The private complainants, on the other hand, are precluded from questioning the discretion of the fiscal in moving for the dismissal of the criminal action. Hence, a hearing on the motion to dismiss would be useless and futile. On the other hand, the order of the court granting the motion to dismiss, notwithstanding the absence of a notice and hearing on the motion, cannot be challenged in this petition for certiorari which assails the dismissal of the two (2) cases on the ground of double jeopardy. Petitioners can no longer question the dismissal of the previous cases as the order has already become final there being no appeal therefrom. It has been repeatedly held that once an Information is filed with the court, it acquires jurisdiction over the case, and the consequent discretion to dismiss it. While the prosecutor retains full control over the prosecution, he loses jurisdiction over the entire proceedings. Hence, what petitioners should have done was to appeal the dismissal of the cases on the ground that the said motion failed to include a notice of hearing, and should not have waited for the dismissal of the subsequent cases on the ground of double jeopardy, and thereafter question the first dismissal, which by then had already become final, erroneous though it may be. The order of the court granting the motion to dismiss despite absence of a notice of hearing, or proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a competent court of jurisdiction over the case. The court still retains its authority to pass on the merits of the motion. The remedy of the aggrieved party in such cases is either to have the order set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to appeal from the dismissal order, and not certiorari. It must be stressed that after a court has obtained jurisdiction over the case, the failure to give notice of a subsequent step in the proceedings does not deprive the court of jurisdiction. If substantial injury results from failure of notice and complaint is duly made thereof, the act of the court may be held to be erroneous and will be corrected in the proper proceeding, but it is not an act without or in excess of jurisdiction and is not void. There is a great difference in the results which follow the failure to give the notice, which is necessary to confer on the court jurisdiction over the person and the subject matter of the action, and that which follows a failure to give notice of a step taken after the court has obtained such jurisdiction and is proceeding with the action. Hence, the conditions for a valid defense of double jeopardy, i.e., (a) a first jeopardy must have attached prior to the second; (b) the first jeopardy must have been validly terminated; and, (c) the second jeopardy must be for the same offense as that of the first, all being present in these cases, the defense of double jeopardy must prevail. WHEREFORE, finding no abuse of discretion, much less grave, committed by public respondent, and, for lack of merit, the instant petition is DISMISSED.

JOEY POTOT y SURIO, petitioner, vs. PEOPLE OF THE PHILIPPINES and LOLITO DAPULAG, respondents. DECISION
SANDOVAL-GUTIERREZ, J.:

After the accused has filed with the trial court a manifestation that he is not appealing its Decision convicting him of homicide and that he is ready to serve his sentence, can the same court, upon motion by the private complainant with the conformity of the public prosecutor, set aside the said judgment and remand the records of the case to the Office of the Provincial Prosecutor for re-evaluation of the evidence and the filing of the corresponding charge? This is the issue raised in the instant petition for review on certiorari.

Joey S. Potot, petitioner, was charged with homicide in Criminal Case No. 2739 before the Regional Trial Court (RTC), Branch 19, Catarman, Northern Samar. The information against him, filed on December 12, 1999, alleges: That on or about the 2nd day of November, 1999, at about 3:00 oclock in the early morning in the public cemetery of the Municipality of Mondragon, Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a knife locally called dipang, with deliberate intent to kill and without justifiable cause, did then and there wifully, unlawfully and feloniously attack, assault and stab RODOLFO DAPULAG @ PILI with the use of said weapon which the accused had provided himself for the purpose, thereby inflicting upon said Rodolfo Dapulag @ Pili a mortal wound which caused the death of said victim. CONTRARY TO LAW. i[1] Upon arraignment on February 1, 2000, wherein the information was read to him in his own dialect, petitioner, assisted by counsel, pleaded guilty to the charge.ii[2] Forthwith, he invoked not only the mitigating circumstance of plea of guilty, but also the circumstance of voluntary surrender since, as shown in the records, he surrendered voluntarily to the Philippine National Police (PNP) Headquarters immediately after the commission of the crime. The public prosecutor did not raise any objection. Instead, he manifested that there is no aggravating circumstance which attended the commission of the crime. Thereupon, the trial court, after being satisfied that petitioner understood the meaning and consequences of his plea of guilty, rendered and promulgated its Decisioniii[3] in open court convicting him of homicide, with the mitigating circumstances of plea of guilty and voluntary surrender appreciated in his favor. The dispositive portion of the Decision reads: WHEREFORE, the Court accepts the plea of guilty of Joey Potot y Sorio, and finds him guilty beyond reasonable doubt of the crime of homicide, and appreciating in his favor the mitigating circumstances of plea of guilty and voluntary surrender, with no aggravating circumstance in attendance, and applying the Indeterminate Sentence Law, sentences him to suffer an imprisonment ranging from two (2) years four (4) months and one (1) day of prision correccional, as minimum, to eight (8) years and one (1) day of prision mayor, as maximum; to indemnify the heirs of Rodolfo Dapulag y Conge, also known as Pili, in the amount of P50,000.00; and to pay the costs. The period during which the accused has undergone preventive imprisonment shall be deducted in full from the foregoing sentences involving deprivation of liberty should the records reveal that he expressly agreed in writing to abide by the same rules and regulations governing convicted prisoner during his entire detention period and if the records show that he is entitled to the privilege under the law. SO ORDERED.iv[4] On February 3, 2000, petitioner, through counsel, filed a manifestation with motionv[5] informing the trial court that he is not appealing from the Decision and praying that a commitment order be issued so he could immediately serve his sentence. Attached to the motion is petitioner's letter to the court stating that he does not intend to appeal from its Decision.vi[6] However, on February 11, 2000, the private complainant, Rosalie Dapulag (wife of the victim), filed through counsel, a motion for reconsideration/retrialvii[7] praying that the Decision be set aside and that the case be heard again because there were irregularities committed before and during the trial which caused miscarriage of justice. The motion, which bears the conformity of the public prosecutor, alleges, among others, that:
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The true facts surrounding the commission of the crime as revealed by the eyewitnesses, EDUARDO BOYSON and JIMUEL MARQUITA, on December 8, 1999 is that RODOLFO DAPULAG, private offended partys deceased husband, was killed on that fateful morning by accused JOEY POTOT with the aid of DOMING JARILLA and MARLITO NAZAM who respectively held the right and left arm of Rodolfo Dapulag to ensure the commission of the crime by accused Joey Potot. This information was deliberately withheld by the said eyewitnesses, especially EDUARDO BOYSON, during the investigation conducted by the police and the preliminary investigations conducted by the presiding judge of MCTC of Mondragon-San Roque and the Office of the Provincial Prosecutor upon the solicitations of Mayor Elito Dapulag, who in good faith believed that the inclusion of Doming Jarilla and Marlito Nazam would make the prosecution of the case more difficult. The eyewitnesses, who are likewise in the belief that indeed the inclusion of the above-named persons would complicate the case, withheld the said information until witness Jimuel Marquita revealed the same to the private offended party on December 8, 1999. xxx xxx xxx

The private offended party (not in her capacity as such, but as a citizen) has the right to demand from the State the punishment of heinous crimes in accordance with law. And such right is now in jeopardy of being lost for some causes not attributable to her. xxx xxx xxx

Hereto attached and made integral parts hereof are the affidavits of eyewitnesses JIMUEL MARQUITA and EDUARDO BOYSON. (Emphasis supplied) Petitioner opposedviii[8] the motion, asserting that there was no irregularity in the preliminary investigation of the case and in the proceedings before the trial court; and that the decision can no longer be modified or set aside because it became final when he formally waived his right to appeal. The trial court, in its order dated May 3, 2000,ix[9] granted private complainant's motion and set aside its February 1, 2000 Decision as proceeding from a rigged, hence, sham hearing. It likewise ordered that the records of the case be remanded to the Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the corresponding charge, thus: From the records are gathered that the case, as originally referred to the Municipal Circuit Trial Court, was for murder. In the conduct of the preliminary investigation, said court determined that a prima facie case exists and recommended the accused be held for trial on the charge. In his resolution reviewing the records of the preliminary investigation conducted by the municipal court, the prosecutor entirely missed discussion of the participation of two others allegedly in conspiracy with the accused. The exclusion of the two others identified as Doming Jarilla and Marlito Nazam was orchestrated by the Municipal Mayor who, in good faith, prevailed upon the witnesses not to implicate them. To these foregoing, the Provincial Prosecutor is in conformity. Accordingly, the Branch Clerk of Court shall remand the records hereof to the Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the corresponding charge supported by the same. The motion or manifestation requesting for the issuance of a commitment order filed by the defense is DENIED. SO ORDERED.
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Petitioner filed a motion for reconsiderationx[10] contending that the trial court has no jurisdiction to issue the February 1, 2000 order as the Decision had become final, and that the said order would place the accused in double jeopardy. In the order of May 26, 2000,xi[11] the trial court denied the motion for reconsideration for the reason that the State is not bound by the error or negligence of its prosecuting officers, hence, jeopardy does not attach. Petitioner now assails the orders of May 3 and 26, 2000. The Solicitor General agrees with the petitioner that the challenged orders should be set aside and that the February 1, 2000 Decision should be reinstated.xii[12] We find the petition meritorious. Section 7, Rule 120 of the Revised Rules on Criminal Procedure, as amended, provides: SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a) (Emphasis ours) It is thus clear that only the accused may ask for a modification or setting aside of a judgment of conviction. And this he must do before the said judgment becomes final or before he perfects his appeal. Such judgment becomes final in any of the following ways: (a) when no appeal is seasonably filed by the accused, except in case of automatic review of the decision imposing the capital penalty;xiii[13] (b) when he has partially or totally served his sentence; (c) when he expressly waives his right to appeal the judgment, except when the death penalty is imposed; or (d) when he applies for probation. When one of these circumstances is present, the trial court which rendered the judgment of conviction loses jurisdiction to alter, modify or revoke it.xiv[14] It is an undisputed fact that on February 3, 2000, or three days after the promulgation of the judgment of conviction, petitioner filed a manifestation expressly waiving his right to appeal therefrom. His intention not to appeal is further indicated by his prayer in the same manifestation for the immediate issuance of a commitment order so he could serve his sentence. Such waiver has the effect of causing the judgment to become final and unalterable.xv[15] Thus, it was beyond the authority of the trial court to issue the order of May 3, 2000 setting aside its February 3, 2000 Decision which had attained finality. In Calalang vs. Register of Deeds of Quezon Cityxvi[16] and in a long line of cases, this Court (En Banc) held that a judgment which has acquired the status of finality becomes immutable. Any error, assuming one was committed in the judgment, will not justify its amendment except only to correct clerical errors or mistakes. It is likewise procedurally impermissible for the trial court to grant private complainant's motion for reconsideration of its Decision. Section 1, Rule 121 of the same Rules provides: SECTION 1. New trial or reconsideration. - At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) (Emphasis ours) Since the motion for reconsideration of the judgment of conviction was not initiated by the accused (petitioner) or at the instance of the trial court with his consent, the same should have been denied outright as being violative of the above provision.
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At any rate, the records do not show any irregularity in the preliminary investigation of the case before the Provincial Prosecutors Office. The motion for reconsideration filed by the private complainant questions the (1) alleged failure of the Provincial Prosecutor to appreciate the sworn statements of two prosecution witnesses implicating two other individuals in the commission of the crime; and the (2) downgrading by the Provincial Prosecutor of the initial charge of murder to homicide. But the motion for reconsideration itself reveals that the supposed vital information from two witnesses implicating two other persons in the crime was deliberately withheld by the said witnesses during the police investigation and the preliminary investigation conducted by the MCTC Judge and the Office of the Provincial Prosecutor. Hence, the Provincial Prosecutor who reviewed the records could not have possibly appreciated the alleged vital facts. Besides, the complainant did not appeal from the Provincial Prosecutors finding of probable cause for the crime of homicide against petitioner. It bears stressing at this point that the public prosecutor has the quasijudicial prerogative to determine what crime should be filed in court and who should be charged therefor. He always assumes and retains full discretion and control of the prosecution of all criminal actions.xvii[17] As held by this Court in People vs. Vergara:xviii[18] Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides that [a]ll criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the fiscal. It must be remembered that as public prosecutor he is the representative not of the ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. Hence, the fiscal or public prosecutor always assumes and retains full direction and control of the prosecution of the case. The institution of a criminal action depends upon his sound discretion. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court; whether a prima facie case exists to sustain the filing of an Information; whether to include in the charge those who appear to be responsible for the crime; whether to present such evidence which he may consider necessary. (Emphasis ours) Finally, we agree with the petitioner that the assailed orders would violate his constitutional right against double jeopardy.xix[19] Such right prohibits any subsequent prosecution of any person for a crime of which he has previously been acquitted or convicted. The objective is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the peril and anxiety of a second charge against him for the same offense.xx[20] To invoke the defense of double jeopardy, the following requisites must be present: (1) a valid complaint or information; (2) the court has jurisdiction to try the case; (3) the accused has pleaded to the charge; and (4) he has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent.xxi[21] These requisites have been established. Records show that petitioner was charged with homicide in Criminal Case No. 2739 under a valid information before the trial court which has jurisdiction over it. He was arraigned and pleaded guilty to the charge. On the basis of his plea, petitioner was convicted and meted the corresponding penalty. As petitioner has been placed in jeopardy for the crime of homicide, he cannot be prosecuted anew for the same offense, or any offense which necessarily includes or is necessarily included in the first offense charged.xxii[22] WHEREFORE, the instant petition is hereby GRANTED. The assailed orders dated May 3, 2000 and May 26, 2000 issued in Criminal Case No. 2739 by the trial court are SET ASIDE. Its Decision dated February 1, 2000 is REINSTATED.
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SO ORDERED.

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