Dear Atty. Shalie,

I was charged with the crime of serious physical injuries in an information filed by the City Prosecutor three years ago. When the trial was set, the prosecution could not present their evidence, for various reasons, the last of which was the absence of private prosecutor, which the private complainants hired to handle the case. After several postponements, and upon motion of my lawyer, the Judge dismissed the case against me, but without prejudice on the part of the Public Prosecutor to file another information.

If the Public Prosecutor decides to re-file the case against me, will it not constitute or violate my constitutional right against double jeopardy?

Deo

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Dear Deo,

Under the rules, if a criminal case is dismissed other than upon the merits at any stage before judgment, without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information, and after defendant has pleaded to the charge, the dismissal of the case shall be definite a bar to another prosecution for the same offense; but if it is dismissed upon the petition or with the express consent of the defendant, then the order of dismissal will be without prejudice or not a bar to another prosecution for the same offense.

In dismissing your case without prejudice on the part of the public prosecutor, to file another information, the judge acted correctly, because the case was dismissed with your express consent, when you moved for the said dismissal. If on the other hand, you did not move for the dismissal and the judge dismissed the case, such dismissal would be a bar to another prosecution for the same offense. The public prosecutor cannot file another information, because of the nature and legal effects of such dismissal.

Your action in moving to dismiss the case other than demurrer to evidence, constitutes a waiver of your constitutional right not be prosecuted again for the same offense. There will not be double jeopardy should the Public Prosecutor file another information against you.

Atty. Shalie Obinque