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.

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Amendment 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. xxx (Rule 110, Revised Rules of Criminal Procedure)

Kinds of Amendment:

1. BEFORE PLEA – covers both substantial and formal amendment, WITHOUT leave of court.

2. AFTER PLEA – covers only formal amendment provided:

        a)  leave of court is obtained

        b)  such amendment is not prejudicial to the rights of the accused.

EXCEPT when a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another arraignment of the accused under the amended information.

PLEA

                 Formal                                              Formal

                 Substantial

                 Without leave                                    With leave

                                                                        Not prejudicial

What kind of amendment of the complaint/information can be made before arraignment?

As a rule, both formal and substantial amendments are allowed before arraignment even without leave of court. By way of exception, an amendment before plea which downgrades the nature of the offense charged 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. (Section 14, Rule 110, Rules of Criminal Procedure)

What kind of amendment of the complaint/information can be made after arraignment?

After arraignment, only formal amendments may be made only with leave of court and when it can be done without causing prejudice to the rights of the accused.

Distinguish substantial from formal amendment.

A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. (Ricarze v. Court of Appeals, G.R. No.160451, February 9, 2007)

What are some examples of formal amendments?

The following have been held to be mere formal amendments: 

1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 

2) an amendment which does not charge another offense different or distinct from that charged in the original one; 

3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; 

4) an amendment which does not adversely affect any substantial right of the accused; and 

5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged. (Leviste vs. Almeda, G.R. No. 182677, August3, 2010) 

When are the rights of the accused prejudiced by an amendment?

1. When a defense which he had under the original information would no longer be available

2. When any evidence which he had under the original information would no longer be available 

3. When any evidence which he had under the original information would not longer be applicable to the amended information.

What is the test whether the amendment is substantial or merely formal? 

The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance. (Ricarze v. Court of Appeals, ibid.)

According to the case of Ricarse, the test as to whether a defendant is prejudiced by the amendment, is whether a defense under the original information would be available after the amendment is made. If the answer is yes, it is only a formal amendment that will not prejudice the rights of the accused.

What are the distinctions between amendment and substitution?

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change.

2. Amendment before plea can be effected without leave of court, but substitution is always done with leave of court since it involves the dismissal of the original complaint or information.

3.  Where the amendment is only as to form, there is no need for a new preliminary investigation or plea;  in substitution, another preliminary investigation and plea is required.

4.  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. Substitution requires or presupposes that the new information involves different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy (Teehankee vs. Madayag, 207 SCRA 685)

Before arraignment, can amendment of the complaint/information be allowed to cure any and all defects thereof?

No. It must be clarified that not all defects in the information are curable by amendment prior to entry of plea. An information which is void ab initio cannot be amended to obviate a ground for quashal. An amendment which operates to vest jurisdiction upon the trial court is likewise impermissible. (Leviste vs. Almeda, G.R.No. 182677, August 3, 2010)

After the accused entered his plea, may the Information for homicide be still amended to charge the more serious offense of murder?

No, because such amendment upgrading the charge from homicide to murder is a substantial amendment. The amendment of the Information from homicide to murder is "one of substance with very serious consequences. In keeping with Section 14, Rule 110 of the Rules of Criminal Procedure, only formal amendment can be allowed after arraignment but it is always upon leave of court and provided no prejudice can be made on the rights of the accused. After the accused is arraigned, substantial amendment is proscribed except if the same is beneficial to the accused. (Fronda-Baggaov. People, G.R. No. 151785, December 10, 2007)

The original Information alleged that on October 16, 1992, petitioner Danilo Buhat, armed with a knife, unlawfully attacked and killed one Ramon George Yu while the said two unknown assailants held his arms, "using superior strength, inflicting . . . mortal wounds which were . . . the direct . . . cause of his death." In filing the information, the prosecutor expressly designated it as one for homicide. After arraignment, the prosecution moves to amend the original Information by changing the express designation of the crime charged from homicide to murder. Can this be allowed?

Yes. The original information already contains the allegation that the killing was done with the “use of superior strength”. This allegation already qualified the killing as murder regardless of how such killing is technically designated in the information filed by the public prosecutor.

When the appellation of the crime charged as determined by the public prosecutor does not exactly correspond to the actual crime constituted by the criminal acts described in the information to have been committed by the accused, what controls is the description of the said criminal acts and not the technical name of the crime supplied by the public prosecutor. In other words, the real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of the law alleged to have been violated, they being conclusions of law which in no way affect the legal aspects of the information, but from the actual recital of facts as alleged in the body of the information.

Under these circumstances, the amendment of the Information by merely changing its express designation from homicide to murder is only a formal amendment and no prejudice can be made against the rights of the accused. (Buhat vs. Court of Appeals, G.R. No. 119601 December 17, 1996)

Is an additional allegation of habitual delinquency and recidivism a substantial amendment?

No.  These allegations only relate to the range of the imposable penalty but not the nature of the offense.

Is an additional allegation of conspiracy a substantial amendment?

Yes because it changes the theory of the defense.  It makes the accused liable not only for his own acts but also for those of his co-conspirators. (Old J. Sabio answer)

The new answer is: No, it is not a substantial amendment in the following example: X is charged with murder as principal.  Later, the complaint is amended to include two other persons who allegedly conspired with X.  Can X invoke double jeopardy on the ground that the amendment is substantial? No. The amendment is merely a formal amendment because it does not prejudice the rights of X, who was charged as a principal to begin with.

Is a change in the items stolen by the accused a substantial amendment?

Yes, because it affects the essence of the imputed crime and would deprive the accused of the opportunity to meet all the allegations in preparation of his defense.

Is a change in the nature of the offense due to supervening event a substantial amendment?

No, it is merely a formal amendment.

Can the court order an amendment without a motion to amend? Enumerate instances where the court can order an amendment.

In criminal cases, if there is a motion to quash on the ground that the information does not constitute an offense or is defective, the court instead of dismissing it, will order the amendment. Only when you fail to amend, will the court order the dismissal of the case. (See Rule 117)

In a civil case, can a court order an amendment without a motion to amend or notice to amend under Rule 10? 

Yes.

1. If there is a motion for Bill of Particulars, instead of denying or granting it the court can order an amendment.

2. If there is a motion to dismiss, the court can either grant or deny the motion or order an amendment of the pleading (Sec. 3, Rule 16, Rules of Court)

Section 3. Resolution of Motion. — After the hearing, the court may dismiss the action or claim, deny the motion, or order the amendment of the pleading.

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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, (n)

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. (Rules of Court, Rule 110, Section 14)

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