Substitution of Complaint or Information

Section 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. 

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. 

● The first paragraph provides the rules for amendment of the information or complaint, while the third paragraph refers to the substitution of the information or complaint.

When can a complaint or information be substituted?

A complaint or information may be substituted if:  

1. At any time before judgment it appears that a mistake has been made in charging the proper offense, and

2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein

3. Provided that he will not be placed in double jeopardy.

Limitation to the rule on substitution: 

1. No judgment has yet been rendered

2. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein.

3. The accused would not be placed in double jeopardy.

Can the court order the dismissal of the original complaint before a new one is filed in substitution?

No.  The court will not order the dismissal until the new information is filed.

Amendment vs. Substitution

AMENDMENT	SUBSTITUTION OF INFORMATION OR COMPLAINT
May involve either formal or substantial changes	Involves substantial change from the original charge
Amendment before the plea has been entered can be effected without leave of court.	Substitution of information must be with leave of court as the original information has to be dismissed.
Amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused.	Another preliminary investigation is entailed and the accused has to plead anew to the new information
An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy.	Requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

What  is  the  test  to  determine  if  what  is  needed  is amendment or substitution?

In determining, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. (Pacoy vs. Cajigal, G.R. No. 157472, September 28, 2007 citing Teehankee v. Madayag, G.R. No. 103102, March 6, 1992)

When is there identity between the two offenses?

There is identity between the two offenses:

1. when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or 

2. when the second offense is exactly the same as the first, or 

3. when the second offense is an attempt to commit or a frustration of, or 

4. when it necessarily includes or is necessarily included in, the offense charged in the first information. 

In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter.  And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. (Pacoy vs. Cajigal, ibid.)

Variance between indictment and proof 

1. When the offense proved is less serious than, and is necessarily included in, the offense charged, in which case the defendant shall be convicted of the offense proved.

2. When the offense proved is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged.

3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of a new information charging the proper offense.

The third situation set forth above is substitution of information under Section 14, Rule 110.