Time To Move To Quash
Motion to Quash
Motion to Quash - formerly called a demurrer, it is a special pleading, filed by the accused which hypothetically admits the truth of the facts spelled out in the complaint or information and sets up a matter, which, if duly proved, would preclude further proceedings.
Section 1. Time to move to quash
QUASHAL VS. NOLLE PROSEQUI:
- The quashal of the complaint or information is different from a nolle prosequi, although both have one result, which is the dismissal of the case.
A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused.
A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of
its judicial discretion. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution.
It is not an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense.
GENERAL RULE:
- A motion to quash (MTQ) may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court.
EXCEPTION:
- Under Sec. 9, Rule 117, which adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground (1) that the facts alleged in the information charge no offense, (2) that the court has no jurisdiction over the offense charged, (3) that the offense or penalty has prescribed, or (4) that the doctrine of double jeopardy precludes the filing of the information.
Right to File MTQ Belongs Only to the Accused.
- There is nothing in the rules which authorizes the court or judge to motu proprio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in said order.
Section 2. Form and contents
REQUIRED FORM OF MTQ
1. It must be in writing
2. It must be signed by the accused OR his counsel
3. It must specify the factual and legal grounds on which it is based.
NOTE: Generally, the court cannot consider any other ground other than those specifically stated in the motion to quash, EXCEPT when the ground for quashal is lack of jurisdiction over the offense
charged. If this is the ground for dismissing the case, it need not be alleged in the MTQ because it goes into the very competence of the court to pass upon the case.
Motion to Quash - formerly called a demurrer, it is a special pleading, filed by the accused which hypothetically admits the truth of the facts spelled out in the complaint or information and sets up a matter, which, if duly proved, would preclude further proceedings.
Section 1. Time to move to quash
QUASHAL VS. NOLLE PROSEQUI:
- The quashal of the complaint or information is different from a nolle prosequi, although both have one result, which is the dismissal of the case.
A nolle prosequi is initiated by the prosecutor while a quashal of information is upon motion to quash filed by the accused.
A nolle prosequi is a dismissal of the criminal case by the government before the accused is placed on trial and before he is called to plead, with the approval of the court in the exercise of
its judicial discretion. It partakes of the nature of a nonuser or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution.
It is not an acquittal; it is not a final disposition of the case; and it does not bar a subsequent prosecution for the same offense.
GENERAL RULE:
- A motion to quash (MTQ) may be filed by the accused at any time before the accused enters his plea. Thereafter, no MTQ can be entertained by the court.
EXCEPTION:
- Under Sec. 9, Rule 117, which adopts the omnibus motion rule. This means that a MTQ may still be filed after arraignment on the ground (1) that the facts alleged in the information charge no offense, (2) that the court has no jurisdiction over the offense charged, (3) that the offense or penalty has prescribed, or (4) that the doctrine of double jeopardy precludes the filing of the information.
Right to File MTQ Belongs Only to the Accused.
- There is nothing in the rules which authorizes the court or judge to motu proprio initiate a MTQ by issuing an order requiring why the information may not be quashed on the ground stated in said order.
Section 2. Form and contents
REQUIRED FORM OF MTQ
1. It must be in writing
2. It must be signed by the accused OR his counsel
3. It must specify the factual and legal grounds on which it is based.
NOTE: Generally, the court cannot consider any other ground other than those specifically stated in the motion to quash, EXCEPT when the ground for quashal is lack of jurisdiction over the offense
charged. If this is the ground for dismissing the case, it need not be alleged in the MTQ because it goes into the very competence of the court to pass upon the case.
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