Guidelines to be Observed by Public Attorneys in Handling Criminal Cases

April 4, 2008

PAO MEMORANDUM CIRCULAR NO. 03-08

GUIDELINES TO BE OBSERVED BY PUBLIC ATTORNEYS IN HANDLING CRIMINAL CASES PURSUANT TO THE PROVISIONS OF THE SPEEDY TRIAL ACT (R.A. 8493) AND ITS IMPLEMENTING RULES (S.C. CIRCULAR NO. 38-98)

ARTICLE 1

Purpose and Clientele

SECTION 1. Purpose. — This circular is issued for the purpose of defining and setting forth the guidelines to be observed by Public Attorneys in handling criminal cases pursuant to the provisions of the Speedy Trial Act of 1998 (R.A. 8493) and its implementing rules (Supreme Court Circular No. 38-98).

SECTION 2. Indigency Test. — For an accused person to avail of the services of the Office, he/she must pass the Indigency Test pursuant to Public Attorney's Office (PAO) Rules and Regulations.

ARTICLE 2

Arraignment and Pre-Trial

SECTION 1. Cases Covered by the Rules on Summary Procedures. — Upon learning of the filing of an Information against a client, the Public Attorney shall:

A. Motion to Quash/Dismiss. — File a motion to quash/dismiss the information against the accused within the ten-day (10) period for filing the counter-affidavit where appropriate and only on any of the following two (2) grounds:

a. lack of jurisdiction over the subject matter;

b. non-referral to the Barangay Conciliation process. TSEHcA

B. Counter-Affidavit. — File the requisite counter-affidavit of the accused and the affidavit/s of his/her witnesses, as well as documentary evidence in support thereof, if any, where none of the above grounds for Motion to Quash/Dismiss is present, within ten (10) days from the time that the accused received a copy of the subpoena/summons.

SECTION 2. Cases Under Regular Procedure. — When a walk-in-client/or a detained person avails of the services of the Office, or a Public Attorney is appointed counsel de oficio for the accused, the Public Attorney shall:

A. Immediately secure a copy of the information and affidavit of the complainant and his/her witnesses and other documentary evidence against the accused;

B. Interview the accused focusing on:

1. the legality of the arrest, the nature of the charge and his/her rights under existing laws including his/her right to demand trial;

2. his/her theory of defense, his/her witnesses, and his/her documentary evidence, if any;

3. the plea of the accused, or the possibility of plea bargaining.

C. Move for a preliminary investigation/reinvestigation within five (5) days from learning of the filing of the information, 1 if beneficial to the accused and if he/she is entitled thereto. In case of an adverse resolution, the Public Attorney may file a Motion for Reconsideration or appeal the same to the Regional State Prosecutor's Office/Secretary of Justice;

D. Determine the existence of a ground for a Motion to Quash or Dismiss, and where applicable, the Public Attorney shall file the same prior to arraignment, 2 except when to do so would not work to the advantage of the accused.

SECTION 3. Duties Where Accused is Detained. — If the Public Attorney knows that a person charged of a crime is detained, either because he/she is charged of a bailable crime but has no means to post bail, or is charged of a non-bailable crime, or is serving a term of imprisonment in any penal institution, the Public Attorney shall: EcaDCI

a. File a Motion manifesting that the detainee/prisoner demands arraignment/trial and, for this purpose, that the custodian of the detainee/prisoner be ordered to bring the detainee/prisoner to the court, from time to time as ordered;

b. Upon receipt of notice from the custodian that he/she has in his/her custody a detainee/prisoner who demands trial, the public attorney shall file a Motion that said detainee/prisoner be brought to the court for arraignment/trial.

SECTION 4. Duties on Arraignment. — The Public Attorney shall:

A. Ascertain the schedule for the arraignment of the accused. Should there be none, he/she shall immediately file a Motion to Set Case for Arraignment of the accused:

1. Within thirty (30) days from the time the court acquired jurisdiction over the person of the accused;

2. Within ten (10) days from the date of the raffle 3 or from receipt of the information when the accused is a detention prisoner.

B. Immediately after arraignment, move either in open court or in writing that pre-trial be scheduled:

1. Within thirty (30) days from the time the court acquires jurisdiction over the person of the accused, 4 who is out on bail; or

2. Within ten (10) days after arraignment 5 when the accused is a detention prisoner.

SECTION 5. Duties on Pre-trial. — During Pre-trial, the Public Attorney shall:

A. Ensure that the agreements or admissions made or entered into during the preliminary and/or pre-trial conference are faithfully and accurately reflected in the written form before signing the transcription, to the end that the accused shall be bound only by the admission/s made by him/her, and by the agreement/s that he/she actually entered into; 6 HDATSI

B. To expedite the proceedings and if favorable to the accused, the Public Attorney may prepare judicial affidavits, subject to additional direct examination, in case of clear necessity and in the interest of speedy disposition of the case;

C. Determine if the Pre-trial Order is an accurate reflection of the actions taken, the facts stipulated and the pieces of evidence marked. Should there be errors or inaccuracies, move for the same to be rectified, prior to the agreed/scheduled initial presentation of evidence; 7

D. Thereafter, move for the setting of the case for trial to commence, with at least fifteen (15) days to prepare for trial, but to make sure that the initial presentation of evidence be set within thirty (30) days from receipt of the Pre-trial order; 8

E. In the event that the pre-trial has already been scheduled and the complainant fails to appear despite due notice, move for the termination of the pre-trial and the setting of the case for trial.

ARTICLE 3

Trial

SECTION 1. Time Limit for Trial. — When the case is set for trial by the Court, the Public Attorney shall take note and see to it that the case is set for continuous trial on a weekly or other short-term trial calendar at the earliest possible time, EXCEPT for cases falling under the rules on summary procedure. The entire trial period shall not exceed one hundred eighty (180) days from the first day of trial EXCEPT when the trial court is authorized in writing by the Chief Justice or by the Court Administrator.

SECTION 2. When the Accused Enters a Plea of Not Guilty. — If the accused enters a plea of not guilty, the Public Attorney has at least fifteen (15) days to prepare for trial, which shall commence within thirty (30) days from receipt of the pre-trial order.

SECTION 3. Exclusions. — The Public Attorney shall take note of the period set forth in R.A. 8493 for the Speedy Trial and/or Resolution of cases, and shall see to it that only the allowable periods of delay as provided in Section 10 thereof be excluded from computing the time within which trial must commence. 9 EHIcaT

Toward this end, the Public Attorney shall insist on the strict adherence to the period set forth in the law and shall be ready to move for the dismissal of the case, where there is delay or violation of the aforestated periods.

SECTION 4. Time Limit Following an Order for New Trial. — If there is an order for the accused to be tried again, the Public Attorney shall see to it that the trial shall commence within thirty (30) days from notice of the order; except when witnesses are unavailable, or other factors make trial within thirty (30) days impractical; in which case, the period may be extended, but such extension shall not exceed one hundred eighty (180) days from notice of the order for new trial. 10

SECTION 5. Remedy Where Accused is Not Brought to Trial Within the Time Limit. — If an accused is not brought to trial within the time limit required by Section 7 11 of R.A. 8493 as extended by Section 9 12 thereof, the Public Attorney shall move to dismiss the charge/information on the ground of the denial of his/her right to speedy trial. 13 The Public Attorney shall prove the violation of the time limits set by the Act, and rebut that the delay is attributable to any allowed exclusion from the period set by the law.

The Motion to Dismiss on grounds of the accused not having been brought to trial within the time limit, shall be filed by the Public Attorney prior to trial or entry of a plea of guilty, otherwise, the said failure to so move shall constitute a waiver of the right to dismissal under Section 13, R.A. 8493. 14

ARTICLE 4

Sanctions

SECTION 1. Sanctions. — Appropriate administrative sanctions in accordance with the Public Attorney's Office (PAO) and the Civil Service Commission (CSC) Rules and Regulations, after due notice and hearing, shall be imposed upon public attorneys who committed willful violations of this Memorandum Circular and neglect of duties and responsibilities stated hereof.

ARTICLE 5

Final Provisions

SECTION 1. Suppletory Application. — This Memorandum Circular shall apply suppletorily to Memorandum Circular No. 18, Series of 2002, as amended. aIEDAC

SECTION 2. Repealing Clause. — All other circulars, issuances and memoranda or any portion thereof inconsistent herewith are hereby repealed or modified accordingly.

SECTION 3. Effectivity. — This circular shall take effect immediately.

Quezon City, Metro Manila, April 4, 2008.

PERSIDA V. RUEDA-ACOSTAChief Public Attorney

Footnotes

1. Section 7, Rule 112, Rules of Court. When accused lawfully arrested without warrant. — . . . .

After the filing of the complaint or information in court without a preliminary investigation, the accused may within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule.

2. Section 1, Rule 117, Rules of Court. Time to move to quash. — At any time before entering his plea, the accused may move to quash the complaint or information.

3. Section 1 (e), Rule 116, Rules of Court. When the accused is under preventive detention. — . . . . The accused shall be arraigned within ten (10) days from the date of the raffle. The pre-trial conference of his case shall be held within ten (10) days from arraignment.

4. Section 1, Rule 118, Rules of Court. Pre-trial; mandatory in criminal cases. — In all criminal cases . . ., the court shall, after arraignment and within thirty (30) days from the date the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for . . . .

5. Rule 116, Section 1 (e). Ibid.

6. R.A. 8493, Section 3. Pre-trial Agreement. — All agreements or admissions made or entered into during the pre-trial conference shall be reduced to writing and signed by the accused and counsel, otherwise the same shall not be used in evidence against the accused. . . . .

7. Section 5, RA 8493. Pre-Trial Order. — After the pre-trial conference, the court shall issue an order reciting the actions taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice.

8. Section 6, S.C. Circular No. 38-98. Pre-Trial Order. — . . . .

Thereafter, where a plea of not guilty is entered, the accused shall have at least fifteen (15) days to prepare for trial which shall commence within thirty (30) days from receipt of the pre-trial order.

9. RA 8493, Section 10. Exclusions. — The following periods of delay shall be excluded in computing the time within which trial must commence:

(a) Any period of delay resulting from other proceedings concerning the accused, including but not limited to the following:

(1) delay resulting from an examination of the accused, and hearing on his/her mental competency, or physical incapacity;

(2) delay resulting from trials with respect to charges against the accused;

(3) delay resulting from interlocutory appeals;

(4) delay resulting from hearings on pre-trial motions: Provided, that the delay does not exceed thirty (30) days;

(5) delay resulting from orders of inhibition, or proceedings relating to change of venue of cases or transfer from other courts;

(6) delay resulting from a finding of the existence of a valid prejudicial question; and

(7) delay reasonably attributable to any period, not to exceed thirty (30) days, during which any proceeding concerning the accused is actually under advisement.

(b) Any period of delay resulting from the absence or unavailability of the accused or an essential witness.

For purposes of this subparagraph, an accused or an essential witness shall be considered absent when his/her whereabouts are unknown and, in addition, he/she is attempting to avoid apprehension or prosecution or his/her whereabouts cannot be determined by due diligence. An accused or an essential witness shall be considered unavailable whenever his/her whereabouts are known but his/her presence for trial cannot be obtained by due diligence or he/she resists appearing at or being returned for trial.

(c) Any period of delay resulting from the fact that the accused is mentally incompetent or physically unable to stand trial.

(d) If the information is dismissed upon motion of the prosecution and thereafter a charge is filed against the accused for the same offense, or any offense required to be joined with that offense, any period of delay from the date the charge was dismissed to the date the time limitation would commence to run as to the subsequent charge had there been no previous charge.

(e) A reasonable period of delay when the accused is joined for trial with a co-accused over whom the court has not acquired jurisdiction, or as to whom the time for trial has not run and no motion for severance has been granted.

(f) Any period of delay resulting from a continuance granted by any justice or judge motu proprio or on motion of the accused or his/her counsel or at the request of the public prosecutor, if the justice or judge granted such continuance on the basis of his/her findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this subparagraph shall be includable under this section unless the court sets forth, in the record of the case, either orally or in writing, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public in a speedy trial.

10. Section 11, S.C. Circular No. 38-98. Time Limit Following an Order for New Trial. — If the accused is to be tried again pursuant to an order of a court for a new trial, the trial shall commence within thirty (30) days from notice of that order, except that the court retrying the case may extend such period but not to exceed one hundred eighty (180) days from notice of said order for a new trial if unavailability of witnesses or other factors make trial within thirty (30) days impractical.

11. Section 7, RA 8493. 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. . . .

12. Section 9, RA 8493. Extended Time Limit. — Notwithstanding the provisions of Section 7 of this Act for the first twelve-calendar-month period following its effectivity, the time limit with respect to the period from arraignment to trial imposed by Section 7 of this Act shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month period, the time limit with respect to the period from arraignment to trial shall be eighty (80) days.

13. Section 14, S.C. Circular No. 38-98. Remedy Where Accused is Not Brought to Trial Within the Time Limit. — If the accused is not brought to trial within the time limit . . ., the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 9 hereof. The dismissal shall be subject to the rules on double jeopardy.

14. Section 13, RA 8493. Remedy Where Accused is Not Brought to Trial Within the Time Limit. — If an accused is not brought to trial within the time limit required by Section 7 of this Act . . ., the information shall be dismissed on motion of the accused. The accused shall have the burden of proof of supporting such motion but the prosecution shall have the burden of going forward with the evidence in connection with the exclusion of time under Section 10 of this Act.

. . . . Failure of the accused to move for dismissal prior to trial or entry of a plea of guilty shall constitute a waiver of the right to dismissal under this section.

<http://www.pao.gov.ph/UserFiles/Public_Attorney%27s_Office/file/PAO-MC-SPEEDY-TRIAL.pdf> last visited on July 7, 2012.