affidavit of desistance


Affidavit of Desistance Meaning
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 condemnation 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.