What can the defense do?

1. Argue that in double jeopardy, it is required that the dismissal be made after the accused has
been arraigned or has entered a valid plea.

COUNTERARGUMENT

Speedy Trial Act

Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and
Trial. - The arraignment of an accused shall be held within thirty (30) days from the filing of the
information, or from the date the accused has appeared before the justice, judge or court in which the
charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty is entered, the
accused shall have at least fifteen (15) days to prepare for trial. Trial shall commence within thirty (30)
days from arraignment as fixed by the court.

If the accused pleads not guilty to the crime charged, he/she shall state whether he/she interposes a
negative or affirmative defense. A negative defense shall require the prosecution to prove the guilt of
the accused beyond reasonable doubt, while an affirmative defense may modify the order of trial and
require the accused to prove such defense by clear and convincing evidence.

GR No. 164953
Lumanlaw vs Peralta

Petitioner Lumanlaw was apprehended by the Western Police District near San Diego Street, Sampaloc,
Manila, on the evening of November 26, 2002, for illegal possession of a dangerous drug. He was
charged in an Information filed with Branch 13 of the Regional Trial Court (RTC) of Manila, as follows:

That on or about November 24, 2002, in the City of Manila, Philippines, the said accused, not being
lawfully authorized to possess any dangerous drug, did then and there willfully, unlawfully and
knowingly have in his possession, custody and control one (1) heat sealed transparent plastic sachet
containing zero point zero one one (0.011) grams of white crystalline substance known as SHABU
containing methamphetamine hydrochloride, a dangerous drug.

A Commitment Order was consequently issued by Presiding Judge Luis J. Arranz directing the detention
of petitioner in the Manila City Jail and setting the latters arraignment on January 8, 2003. On even date,
petitioners counsel manifested his intention to file a motion for preliminary investigation. Because of
the Manifestation, the arraignment was deferred to February 21, 2003. The aforesaid Motion was filed
together with a Petition to Reduce Bail on January 17, 2003.

The resolution of these matters was overtaken by Judge Arranzs retirement from public service. Thus,
the arraignment scheduled for February 21, 2003, had to be postponed. This Court designated herein
respondent, Judge Eduardo B. Peralta, Jr., as acting presiding judge of Branch 13, Regional Trial Court,
Manila, in Administrative Order No. 27-2003 issued on February 18, 2003.

On March 26, 2003, the newly designated acting presiding judge issued an Order setting the
arraignment of petitioner on April 23, 2003. On the latter date, the arraignment was reset to June 25,
2003, due to the public prosecutors absence.
On June 25, 2003, petitioners counsel received the lower courts Order granting Lumanlaws Petition to
Reduce Bail and denying his Motion for Preliminary Investigation for having been filed beyond the
reglementary period. In the same Order, the trial court set petitioners arraignment on August 6, 2003.

The arraignment was postponed again, this time due to the absence of petitioners counsel. According to
him, he requested the court to proceed with the arraignment, with the public defender assisting the
accused, but that respondent judge denied the request on the ground that petitioner was already
represented by a counsel de parte. The trial court then re-scheduled the arraignment on September 24,
2003.

In what was beginning to be a pattern of laxity, the September 24 arraignment was likewise postponed
in view of the scheduled meeting of presiding judges with accredited newspaper publishers and was
thus reset to October 1, 2003.

On the latter date, respondent judge issued the following Order:

In view of the draft Order dated August 6, 2003 which impeded the Produce Order for the arraignment
and pre-trial conference this afternoon of defendant John Joseph Lumanlaw in relation to Criminal Case
No. 02-208426, the arraignment and pre-trial conference are hereby reset on December 10, 2003 at
2:00 oclock in the afternoon, on the date amenable to Atty. Ernesto Delfin, as well as the defendant.

Again, the arraignment did not occur on December 10, 2003, because petitioner had not been brought
to the court by the wardens of the Manila City Jail. According to the trial courts Order, there was no
proof of service on the Manila City Jail. The arraignment was thus reset to March 1, 2004.

Notably, a year had passed since the filing of the Information, yet Lumanlaw remained uninformed of
the charges against him, while continuing to be in detention and despair all throughout that period of
limbo. Owing to this insufferable state of affairs, petitioners counsel manifested his intention to file a
motion to dismiss on account of the violation of his clients right to a speedy trial. Accordingly, an Urgent
Motion to Dismiss was filed on December 19, 2003. The Motion was heard on February 20, 2004, but
was promptly denied by the trial court. The arraignment was reset yet again to March 17, 2004.

The arraignment did not take place, however, because the accused was not produced in court by the jail
wardens concerned. It turned out that the trial court had not issued a produce order to the Manila City
Jail. Another resetting was ordered for April 16, 2004.

Now frustrated with the repeated postponements, petitioner filed a Second Urgent Motion to Dismiss
on March 22, 2004. Relying on the provisions of the Revised Rules of Criminal Procedure, mandating
that arraignment should be held within thirty (30) days from the date the court acquired jurisdiction
over the accused, petitioner argued that the protracted delay of his arraignment violated his
constitutional right to speedy trial.

On April 16, 2004, the RTC could not proceed with the arraignment. What transpired on that date is
evident from its Order:

Inasmuch as the Trial Prosecutor has just furnished a copy of her Comment dated April 12, 2004 to the
defense counsel, as prayed for by Atty. Ernesto Delfin, counsel for accused John Joseph Lumanlaw in
Criminal Case No. 02-208426, he is GRANTED five (5) days from today to submit his Reply. After which,
the pending Second Urgent Motion to Dismiss dated March 21, 2004 filed on March 22, 2004 (page 33,
Record in Criminal Case No. 02-208426) will be deemed submitted for resolution.

Meanwhile, without prejudice to the resolution of the pending motion, the arraignment and pre-trial
conference of John Joseph Lumanlaw are hereby tentatively scheduled on May 26, 2004 at 2:00 oclock
in the afternoon.

On May 26, 2004, the arraignment could not be conducted, again because of the Manila City Jails failure
to bring petitioner to the court despite notice.[24] On the same day, his counsel received[25] the trial
courts Order dated May 3, 2004, denying his Second Urgent Motion to Dismiss. The arraignment was
reset to June 16, 2004.

On this date, it was respondent judges absence that caused the postponement of the arraignment,
which was reset to July 21, 2004. But on that date, no hearing was conducted in Branch 13 because of
the ongoing semestral inventory of cases in respondent judges regular sala, Branch 17.

Given the length and the unreasonableness of the majority of the delays, a violation of the right of
petitioner to speedy trial becomes manifest. Almost two years elapsed from the filing of the Information
against him until the filing of this Petition; incredibly, he has not been arraigned. An arraignment takes,
at most, ten minutes of the courts business and does not normally entail legal gymnastics. It consists
simply of reading to the accused the charges leveled against them, ensuring their understanding of
those charges, and obtaining their plea to the charges. A prudent and resolute judge can conduct an
arraignment as soon as the accused are presented before the court.

2. Argue that dismissal is not final if upon motion of the accused

COUNTERARGUMENT

G.R. No. 172777

Bangayan Jr. vs Bangayan

Double jeopardy attaches if the following elements are present: (1) a valid complaint or information; (2)
a court of competent jurisdiction; (3) the defendant had pleaded to the charge; and (4) the defendant
was acquitted, or convicted or the case against him was dismissed or otherwise terminated without his
express consent. However, jurisprudence allows for certain exceptions when the dismissal is considered
final even if it was made on motion of the accused, to wit:

(1) Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution
has rested, which has the effect of a judgment on the merits and operates as an acquittal.

(2) Where the dismissal is made, also on motion of the accused, because of the denial of his right to a
speedy trial which is in effect a failure to prosecute.

3. File for Rule 65, not an MR or Appeal

GR No. 154218 & 154372

People of Philippines v.s. Hon Judge Jose Hernandez
Petitioner contends that its petition for certiorari under Rule 65 with the CA was the proper remedy
since respondent Judge committed grave abuse of discretion amounting to lack or excess of jurisdiction
when he consolidated the 321 criminal cases into one information and dismissed the "criminal case" on
the ground of the denial of private respondents' right to speedy trial, without giving the prosecution the
chance to present evidence. Citing People v. Velasco, petitioner contends that the dismissal of the
"criminal case" against private respondents is tantamount to their acquittal which, as a general rule, the
prosecution cannot appeal from in the absence of a statute clearly conferring that right. In any case, the
alleged existence of the remedy of appeal does not always foreclose the remedy of a petition for
certiorari under Rule 65.

Petitioner's remedy with the CA was correct.

Section 1, Rule 122 of the Revised Rules of Criminal Procedure provides that [a]ny party may appeal
from a judgment or final order, unless the accused will be placed in double jeopardy.

As a general rule, the prosecution cannot appeal or bring error proceedings from a judgment in favor of
the defendant in a criminal case in the absence of a statute clearly conferring that right. Thus, errors of
judgment are not appealable by the prosecution. Appeal by the prosecution from the order of dismissal
of the criminal case by the trial court may be allowed only on errors of jurisdiction when there was
denial of due process resulting in loss or lack of jurisdiction. This is so as while it is true that double
jeopardy will attach in case the prosecution appeals a decision acquitting the accused, an acquittal
rendered in grave abuse of discretion amounting to lack or excess of jurisdiction does not really
"acquit" and therefore does not terminate the case as there can be no double jeopardy based on a
void indictment.

In the case at bar, the trial court dismissed the cases against private respondents for the denial of their
right to speedy trial. In a long line of cases, we have held that a dismissal on the ground of the denial of
the accused's right to a speedy trial will have the effect of acquittal that would bar further
prosecution of the accused for the same offense. Thus, we have held that where after such dismissal
the prosecution moved for the reconsideration of the order of dismissal and the court re-set the case
for trial, the accused can successfully claim double jeopardy as the said order was actually an
acquittal, was final and cannot be reconsidered. Hence, petitioner was correct in filing a petition for
certiorari under Rule 65, alleging that "respondent judge committed grave abuse of discretion and/or
acted without or in excess of jurisdiction in issuing the order of dismissal dated November 23, 2001
allegedly on account of the speedy trial rule" as an appeal was not available to it. Where the dismissal
of the case was allegedly capricious, certiorari lies from such order of dismissal and does not involve
double jeopardy, as the petition challenges not the correctness but the validity of the order of dismissal
and such grave abuse of discretion amounts to lack of jurisdiction which prevents double jeopardy from
attaching.