APOLINARIO GONZALES vs. THE HONORABLE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and IMELDA CARATAO G.R. No. 108811 May 31, 1994 THIRD DIVISION VITUG, J.: petition for review on certiorari

APOLINARIO GONZALES vs. THE HONORABLE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and IMELDA CARATAO
G.R. No. 108811   May 31, 1994
THIRD DIVISION VITUG, J.:
petition for review on certiorari

Facts:
          A criminal complaint for qualified seduction following a preliminary investigation, was filed the Municipal Trial Court of Obando, Bulacan, against herein petitioner Apolinario Gonzales. The latter, upon arraignment, pleaded "not guilty" to the charge. The presentation of evidence by the prosecution started in May 1983 and was concluded in November 1988. Thereafter, the defense took its turn. When the defense was about to rest its case, the prosecution filed a motion to instead commit the accused to answer to a charge for rape since the evidence submitted indicated that rape, not qualified seduction, was evidently committed.
          Following the dismissal of Criminal Case, the prosecution filed six (6) separate informations for rape, alleged to have been committed on 15, 16, 17, 18, 19 and 20 November 1982, before different branches of the Regional Trial Court (RTC) of Malolos, Bulacan. These cases were later consolidated.
When arraigned, Gonzales pleaded "not guilty" to the charges. In the hearing of 01 July 1991, the prosecution presented its first witness, a brother of private complainant. On 23 March 1992, the private complainant and her counsel not having appeared, the public prosecutor requested a postponement of the hearing. Petitioner did not object to the postponement. On 30 March 1992, the public prosecutor again requested that the hearing be postponed on the same ground. This time, the defense objected and moved for the dismissal of the cases, claiming that the delay would violate petitioner's right to a speedy trial. The trial court issued an order that the above-entitled case is hereby DISMISSED PROVISIONALLY with the express consent of the accused and with costs de oficio.
On the very same day, private counsel for private complainant filed a motion for the reconsideration of the court's order, alleging that they (the complainant and private counsel) "were already within the Court premises but complainant was afraid to enter the courtroom in the absence of counsel who was then attending a hearing before another branch of the Court." On 15 June 1992, the trial court, finding the motion for reconsideration to be impressed with merit, issued an order lifting and setting aside the 30 March 1992 order of dismissal.

Issue:
          Whether or not the dismissal of the criminal action in the MTC and the subsequent filing of the case in the RTC constitute double jeopardy

Ruling:
          The Supreme Court held that the accused cannot invoke double jeopardy; for that kind of jeopardy to arise, the following requisites must be extant:
(1)      The previous complaint or information or other formal charge is sufficient in form and substance to sustain a conviction;
(2)      The court has jurisdiction to try the case;
(3)      The accused has been arraigned and has pleaded to the charge; and
(4)      The accused is convicted or acquitted or the case is dismissed without his express consent.
When all the above elements concur, a second prosecution for (a) the same offense, or (b) an attempt to commit the said offense, or (c) a frustration of the said offense, or (d) any offense which necessarily includes, or is necessarily included in, the first offense charged, can be rightly barred.
Here, there is no question that the Municipal Trial Court did not have the requisite jurisdiction to try the offense of rape, a crime that lies instead within the province of the Regional Trial Court to take cognizance of. Moreover, the dismissal of Criminal Case for qualified seduction by the Municipal Trial Court not only was provisional but likewise with the express consent of the accused (herein petitioner). Then, too, rape and qualified seduction are not identical offenses.

Adjudication:

WHEREFORE, the appealed decision of respondent appellate court is AFFIRMED

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