When Can a Dismissed Criminal Case Be Refiled?

Double Jeopardy & Refiling Rules in the Philippines

TL;DR: A criminal case in the Philippines may be refiled if the earlier case was dismissed before arraignment, by a court without jurisdiction, upon a quashal that can be cured, or with the accused’s express consent (and not for reasons that amount to an acquittal). It cannot be refiled if double jeopardy has attached—i.e., there was a valid complaint/information, a court of competent jurisdiction, an arraignment and plea, and a termination without the accused’s express consent (or a conviction/acquittal). Special rules govern provisional dismissals (strict 1-year/2-year windows), demurrers, speedy-trial dismissals, and negligence cases under Article 365.

I. The Constitutional Bedrock

Double Jeopardy (Art. III, Sec. 21, 1987 Constitution). No person shall be twice put in jeopardy of punishment for the same offense.
When jeopardy attaches:
1. A valid complaint or information;
2. Court of competent jurisdiction;
3. The accused is arraigned and pleads; and
4. The case is dismissed/terminated or there is conviction/acquittal.
Effect: A second prosecution for the same offense, or one that necessarily includes or is necessarily included in the first, is barred.

Key tests

Same-elements test: If each offense requires proof of a fact which the other does not, they are not the same offense (e.g., estafa vs B.P. 22 may both proceed because they have distinct elements).
Included offenses: Prosecution is barred if the second charge is an offense necessarily included in (or that necessarily includes) the first.
Supervening facts doctrine: A later, graver offense that arises from facts that occur or become known only after the first prosecution (e.g., victim later dies) may be charged despite an earlier case.

II. Map of Dismissals: Can the Case Be Refiled?

A. Dismissals that generally ALLOW refiling

Before arraignment
- No plea yet → no jeopardy. Refiling is allowed (subject to prescription).
- Prosecutors often seek suspension of arraignment (e.g., pending petition for DOJ review) precisely to preserve refiling options.
Lack of jurisdiction
- If the first court lacked subject-matter or territorial jurisdiction, jeopardy does not attach. The case may be refiled in the proper court.
Quashal curable by amendment (Rule on Motions to Quash)
- If an information is quashed for defects that can be cured (e.g., insufficient factual averments, wrong designation of offense, officer without authority), the court may order refiling with a proper information.
- No refiling only if the quashal is based on double jeopardy, extinction of criminal liability (e.g., prescription, amnesty, death), or the dismissal is with prejudice.
Dismissal with the accused’s express consent
- As a rule, a dismissal upon the accused’s motion or express consent does not trigger double jeopardy, so refiling is possible.
- Important exception: If the ground amounts to an acquittal (e.g., speedy-trial violations or demurrer-type rulings on the merits), refiling is barred (see Part II-B).
Prosecutor-level dispositions (no court case yet)
- If the prosecutor dismisses or drops charges during preliminary investigation, there’s no jeopardy. A case may be refiled later (with new or stronger evidence) within the prescriptive period.

B. Dismissals that generally BAR refiling

Acquittal
- Absolute bar, save for extraordinary review on pure questions of law (e.g., grave abuse via certiorari) which is not the same as refiling.
Demurrer to evidence granted (after prosecution rests)
- Equivalent to acquittal. No refiling.
Dismissal without the accused’s express consent after arraignment
- Examples: Dismissal for failure to prosecute, nolle prosequi after plea, or prosecution’s non-appearance—if the accused did not expressly consent, the dismissal is tantamount to acquittal. No refiling.
Speedy-trial / speedy-disposition dismissals
- Dismissal with prejudice for violation of constitutional/statutory speedy-trial rights bars refiling—even when the motion came from the accused. It functions like an acquittal.
Provisional dismissal that becomes permanent (see Part III)
- Once the 1-year/2-year window lapses (with the rule’s conditions met), the bar becomes permanent. No refiling.
Extinction of criminal liability
- Prescription, amnesty, pardon (as applicable), or death of the accused. These foreclose refiling.

III. Provisional Dismissal (Rule 117, “Provisional Dismissal”)

What it is: A temporary, consensual dismissal used when the case cannot presently proceed (e.g., missing witness).

Prerequisites (conceptual):

Express consent of the accused; typically also at the instance or with conformity of the prosecutor;
Notice to the offended party; and
A court order stating the reasons for the provisional dismissal.

Strict time bars to revive/refile:

If the offense is punishable by imprisonment not exceeding 6 years → the prosecution must revive/refile within 1 year from the order.
If punishable by more than 6 years → within 2 years from the order.
If not revived within these periods (and all prerequisites were present), the provisional dismissal becomes permanent and refiling is barred, independent of longer statutory prescription.

Practical tips:

The clock runs from the date of the order of provisional dismissal.
Each new provisional dismissal triggers a new clock (the one that matters is the last valid provisional dismissal).
If the prerequisites were not complied with (e.g., no express consent or no notice), the special 1-/2-year bar does not kick in—ordinary prescription rules govern, but double jeopardy analysis may still bar refiling if the earlier dismissal operated as an acquittal.

IV. Prescription & Interruption

Revised Penal Code (Art. 90–91) and special laws govern prescriptive periods (e.g., 20/15/10/5 years, or special periods under special laws).
Filing a complaint or information (including a complaint for preliminary investigation in proper venues) interrupts prescription; it typically resumes running upon final termination of the case if refiled is still legally possible.
Even if prescription hasn’t run, refiling is still barred if double jeopardy applies or a permanent provisional dismissal has occurred.

V. Special Topics & Common Pitfalls

Same act, different offenses
- Not automatically barred. Use the same-elements analysis.
- Classic pairs: Estafa vs B.P. 22 (different elements); Illegal possession of firearm vs homicide/murder (different elements).
- BUT if one offense necessarily includes the other, the second is barred after jeopardy.
Reckless imprudence (Art. 365, RPC)
- Treated as a single quasi-offense of negligence; you cannot split one negligent act into multiple prosecutions for its various consequences. A conviction/acquittal for the negligent act bars another case from the same negligent act (even if different victims or injuries later surface), subject to the supervening event doctrine.
Dismissal “for lack of interest” of the private complainant
- Criminal actions are People of the Philippines vs. Accused; the State, not the private complainant, controls prosecution. A dismissal after arraignment without the accused’s express consent can bar refiling. Before plea, refiling is generally allowed.
Desistance or settlement
- Generally does not by itself extinguish criminal liability (except in offenses that are essentially private and require a complaint to begin with). Whether the case can be refiled depends on double jeopardy, provisional dismissal, and prescription rules—not on the private settlement.
Appeal vs. Refile
- The People cannot refile after an acquittal or a dismissal equivalent to acquittal. The remedy (if any) is a petition on pure questions of law (e.g., grave abuse), not a second prosecution.
Amendment vs. Substitution (Rule on Informations)
- Before plea: amendments (even substantial) are allowed; substitution is possible if the correct offense is different but based on the same act and no double jeopardy issues arise.
- After plea: only formal amendments that do not prejudice rights are permitted. A new, different offense after plea risks double jeopardy.

VI. Quick Decision Guide (Refiling?)

Was the accused arraigned and did they plead?
- No → Refiling generally OK (watch prescription).
- Yes → Go to next checks.
Was the first court competent?
- No → OK to refile in the proper court.
- Yes → Next.
How did the first case end?
- Acquittal or demurrer granted → No refiling.
- Dismissed without accused’s express consent (after plea) → No refiling (tantamount to acquittal).
- Dismissed upon accused’s motion/express consent → Usually refiling OK, unless ground = speedy-trial/merits → No refiling.
- Provisional dismissal → Check 1-year/2-year windows and prerequisites; if lapsed and valid → No refiling.
- Quashal for curable defects → OK to refile with proper information.
- Extinction (prescription, amnesty, death) → No refiling.

VII. Practical Pointers

Preserve options: If the prosecution needs time (e.g., for DOJ review), consider suspending arraignment rather than proceeding to plea, to avoid jeopardy.
Be precise about consent: Express consent is an affirmative act (e.g., filing or joining a motion). Mere silence is not express consent.
Document Rule 117 Sec. 8 prerequisites for provisional dismissal; defects there can decide whether the 1-/2-year bar applies.
Track clocks: Know both the statutory prescription and the provisional-dismissal window—the shorter one may control.
Negligence cases: Consolidate consequences of the same negligent act; avoid multiple filings that risk a later double-jeopardy bar.

VIII. Illustrative Scenarios

Information quashed for lacking essential facts; court allows refiling. → Prosecutor may refile a corrected information (no double jeopardy).
After arraignment, prosecutor moves to dismiss due to absent witness; accused objects; court dismisses. → Dismissal without accused’s express consent post-plea → bar to refiling.
Provisional dismissal of qualified theft (penalty >6 years), with express accused consent and notice; not revived within 2 years. → Becomes permanent; no refiling.
Case dismissed before arraignment after DOJ review says no probable cause. → Refiling allowed if new evidence emerges within prescription.
Accused acquitted on demurrer after the prosecution rests. → No refiling (equivalent to acquittal).
Convicted of slight physical injuries; victim later dies from the same act. → Supervening event may allow prosecution for homicide despite earlier case.

IX. Bottom Line

A prosecutor may refile only when jeopardy has not attached (or the first termination does not legally function as an acquittal), the court’s defect can be cured, and time bars (prescription or the 1-/2-year window for valid provisional dismissals) have not lapsed. Once there’s an acquittal, a demurrer granted, a post-plea dismissal without express consent, a speedy-trial dismissal with prejudice, or a permanent provisional dismissal, refiling is out.

This article is for general information on Philippine criminal procedure. For a specific case, consult counsel—small factual differences (timing of arraignment, wording of the dismissal order, penalty level, or notice/consent issues) can flip the outcome.