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What is Affidavit of Desistance?

affidavit of desistance


Affidavit of Desistance
It means the complainant states that he/she did not really intend to
institute the case and that he is no longer interested in testifying
or prosecuting.

      It is a ground for dismissing the case only if the prosecution
      can no longer prove the guilt of the accused beyond reasonable
      doubt without the testimony of the offended party.

      Related: Affidavit of Recantation

Recantation on the other hand means the witness who previously gave a
testimony subsequently declares that his/her statements were not true.


Effect of Affidavit of Desistance in Criminal Case
It does not bar the People from prosecuting the criminal action.

      But it does operate as a waiver of the right to pursue civil
      indemnity.

      Perez v. Hagonoy Rural Bank, Inc. 327 SCRA 588
      An offended party in a criminal case has sufficient personality
      to file a special civil action for certiorari, in  proper cases,
      even without the imprimatur of the  State. In so doing, the
      complainant should not bring  the action in the name of the
      People of the  Philippines. The action may be prosecuted in the
      name of the said complainant.

      Related: Some Actual Cases On Affidavit Of Desistance


Effect of Desistance By Offended Party in Criminal Case
It does not bar the People of the Philippines from prosecuting the
criminal action, but it operates as a waiver of the right to pursue
civil indemnity.

      An affidavit of desistance cannot justify dismissal of the
      complaint if made after (and not before) the institution of
      the criminal action.


Effect of Affidavit of Desistance in Civil Case
Where the criminal case was dismissed
before trial because the offended party executed an
affidavit of desistance, the civil action thereof is
similarly dismissed.


      Related: Sample Form Affidavit of Desistance


Bar Exam 2003
Before the arraignment for the crime of murder, the
private complainant executed an Affidavit of Desistance
stating that she was not sure if the accused was the man
who killed her husband. The public prosecutor filed a
Motion to Quash the Information on the ground that
with private complainant’s desistance, he did not have
evidence sufficient to convict the accused. On 02
January 2001, the court without further proceedings
granted the motion and provisionally dismissed the case.
The accused gave his express consent to the provisional
dismissal of the case. The offended party was notified of
the dismissal but she refused to give her consent.

Subsequently, the private complainant urged the public
prosecutor to refile the murder charge because the
accused failed to pay the consideration which he had
promised for the execution of the Affidavit of
Desistance. The public prosecutor obliged and refiled
the murder charge against the accused on 01 February
2003, the accused filed a Motion to Quash the
Information on the ground that the provisional
dismissal of the case had already become permanent.
(6%)

      a. Was the provisional dismissal of the case proper?
      b. Resolve the Motion to Quash.

SUGGESTED ANSWER:
a. The provisional dismissal of the case was proper because the
   accused gave his express consent thereto and the offended party
   was notified. It was not necessary for the offended party to give
   her consent thereto.(Sec.8 of Rule 117).

b. The motion to quash the information should be denied because,
   while the provisional dismissal had already become permanent, the
   prescriptive period for filing the murder charge had not
   prescribed. There was no double jeopardy because the first case
   was dismissed before the accused had pleaded to the charge.
   (Sec.7 of Rule 117).


Bar Exam 1993
Effect of Affidavit of Desistance in Rape Case
1. Ariel intimidated Rachel, a mental retarded, with a bolo into
   having sexual Intercourse with him. Rachel's mother immediately
   filed a complaint, supported by her sworn statement, before the
   City Prosecutor's Office. After the necessary preliminary
   investigation, an information was signed by the prosecutor but did
   not contain the signature of Rachel nor of her mother. Citing
   Art.344 of the RPC (prosecution of the crimes of rape), Ariel moves
   for the dismissal of the case. Resolve with reasons.

2. After the prosecution had rested its case, Ariel presented a sworn
   affidavit of desistance executed by Rachel and her mother stating
   that they are no longer interested in prosecuting the case and that
   they have pardoned Ariel. What effect would this affidavit of
   desistance have on the criminal and civil aspects of the case?
   Explain fully.

SUGGESTED ANSWER:
1. The case should not be dismissed.
2. The affidavit of desistance will only amount to the condonation
   of civil liability but not criminal liability hence the case should
   still proceed.


Bar Exam 2000
Lolita was employed in a finance company. Because she could not
account for the funds entrusted to her, she was charged with estafa
and ordered arrested. In order to secure her release from jail, her
parents executed a promissory note to pay the finance company the
amount allegedly misappropriated by their daughter. The finance
company then executed an affidavit of desistance which led to the
withdrawal of the information against Lolita and her release from
jail. The parents failed to comply with their promissory note and
the finance company sued them for specific performance. Will the
action prosper or not? (3%)


SUGGESTED ANSWER:
The action will prosper. The promissory note executed by Lolita's
parents is valid and binding, the consideration being the
extinguishment of Lolita's civil liability and not the stifling
of the criminal prosecution.

ALTERNATIVE ANSWER:
The action will not prosper because the consideration for the
promissory note was the non-prosecution of the criminal case for
estafa. This cannot be done anymore because the information has
already been filed in court and to do it is illegal. That the
consideration for the promissory note is the stifling of the
criminal prosecution is evident from the execution by the finance
company of the affidavit of desistance immediately after the
execution by Lolita's parents of the promissory note. The
consideration being illegal, the promissory note is invalid and
may not be enforced by court action.

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Bigwas

I'm Bigwas, It is just an Alias. I have a degree in Criminology. I'm a blogger who loves to write about anything that cross my mind. I hope you learn something from my blog.

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