People v. Ortiz Díaz

95 P.R. 237

• Court: Supreme Court of Puerto Rico
• Decided: July 14, 1967
• Docket: No. CR-65-399
• Status: Published

Opinions

Mr. Justice Santana Becerra

delivered the opinion of the Court.

Appellant assigns as the sole error in this appeal the refusal of the trial court to order that the preliminary hearing be again held before the magistrate, after having decreed the dismissal of the information and ordered the filing of the same again.

It appears from the record that on April 6, 1965, an information was filed against appellant charging him with having committed a crime against nature on or about November 19, 1964. On the back of the information it is stated that defendant was put in jail on said day, November 19, 1964. On April 13, 1965, defendant was arraigned and he pleaded not guilty. In the record there appears the following order of the trial court dated the same day, April 13:

“The court understands that the preliminary hearing of this case had already been held. There was a technical error and a new filing was ordered, for which reason the court dismissed it. The facts are the same and the preliminary hearing was held. Should a preliminary hearing be held the witnesses would be the same and the judge would have the same evidence to determine probable cause.”

The case was heard on May 11, 1965, appellant was convicted and ordered to serve 5 to 10 years in the penitentiary.

In the order of April 25, 1966, the trial court explains that the district judge had timely found probable cause in the preliminary hearing; that the information had been filed untimely; that defendant had requested the dismissal of the case for said reason; that the court sustained the petition and decreed the dismissal without prejudice, and ordered the prosecuting attorney to file a new information and that the hearing for the arraignment be set. At that time the defense raised the question that by reason of having failed to hold the preliminary hearing, this new information should be suspended or dismissed, or the case be sent to the District Court for the holding of said hearing and probable cause, to which the court did not consent. That is the error assigned.

The philosophy of the present Rules of Criminal Procedure and the great advancement worked by them in the former legislation and jurisprudence is that no one shall be submitted to the rigors of an adversative trial where his guilt or innocence of the commission of an offense shall be determined without the Judicial Power itself having previously determined probable cause for said prosecution. Rules 22(c), 23(c), 24(a) (b), 24(c), 35(a), and see Rule 38(c).

This last rule permits in the District Court, before the commencement of the trial, the addition of new counts to the complaint as well as the addition of new defendants “against whom the preliminary proceedings provided in Rules 6, 7, and 22 have been held.” Logically, the foregoing implies that before attempting to add new counts to the complaint or new defendants, it is necessary to go through said preliminary proceedings for the purposes of such new counts or new defendants. As far as we know that is the only express situation in which after the proceeding has passed the stage before the magistrate and is already in court, it must return to that stage.

Rule 64 (n) (2) provides for the dismissal of the information or complaint where, without just cause, the latter is not filed within 60 days of defendant’s arrest or summons. Rule 67 establishes that the motion to dismiss is no bar to another prosecution for the same felony where the dismissal is decreed on the grounds of Rule 64 (n). In this case the trial court dismissed the information, without prejudice, on the ground that the latter had not been filed within the 90-day period fixed by Rule 64 (n) (2)' and ordered'that it "be filed again. We conceive that the order or leave for a new information was not indispensable in the light' of the text of Rule 67.

It is true that the information constitutes the first allegation on the part of The People in a prosecution in-the Superior Court — Rule 34 (a) — and that the trial for the final détermination of the innocence or guilt of a person cannot be carried through until the information is filed. But the filing of the information is only one stage in the whole criminal procedure to prosecute the offense, like the other separate stages of arraignment, trial and verdict, and the judgment. The proceeding to prosecute the offense does not commence with the filing of the information. By express provision of the rules in force it commences with the detérmination of probable cause and the subsequent arrest or summons, which is when the citizen is held responsible to answer, in an adversative trial in court,- for the commission of an offense. Cf. People v. Superior Court; Figueroa, Intervener, 81 P.R.R. 445 (1959); cf. Martínez v. Superior Court, 81 P.R.R. 913 (1960). Otherwise the rule already established that formerly the arrest, and presently, the determination of probable cause and arrest or summons interrupt the prescriptive period of §§ 78 and 79 of the Penal Code, for the prosecution of the offense would.be incorrect. See-: People v. Rivera et al., 9 P.R.R. 363 (1905); People v. Capestany et al., 37 P.R.R. 547 (1928); People v. Báez, 40 P.R.R. 13 (1929); People v. Lugo, 58 P.R.R. 185 (1941).

We agree with the trial court that under the circumstances of this case it was unnecessary and inofficious to- return to the preliminary proceedings for the determination of probable cause when it ordered a new filing. This is not a new information containing different or additional charges or including other defendants. Rather than a new information, in its legal effect, this is the filing of the information anew..

It may be true that the information newly filed was subject to a motion of dismissal under Rule 64, hut Rule 66 provides that . . . “If the court should grant a motion [to dismiss] based on a defect in the institution, of the prosecution or in the information or complaint, it may also order the defendant to be held in custody or that his bail be continued for a specific time, pending the filing of a new information or complaint. Nothing contained herein can affect the provisions for prescription terms.” This Rule 66, in the light of Rule 67, which permits another prosecution for the same offense in case of felony, rejects any attack under Rule 64 (n) to. the new information filed in this case.

It must be explained that this case does not' raise any problem on the right of a defendant to the prescription of his offense. The facts, as charged, occurred on November 19, 1964. According to the evidence, they could have occurred, maybe, days or weeks before. Even so this offense would not prescribe until a date close to November 19, 1967. It cannot be conceived that the dismissal of the first information and the filing of the other, which occurred on April 6, 1965, could have affected defendant’s right of prescription. Even more, final judgment of conviction was pronounced on May 11, 1965, before one year after the commission of the offense.

The philosophy of the Rules was accomplished by the new filing of the information ordered, which submitted defendant to a trial, because the Judicial Power had already determined probable cause against him for those facts. For the reasons stated the judgment will be affirmed. Because of circumstances which appear from the record the minimum of 5 years imposed will be reduced to two years, and thus, the purpose of the indeterminate sentence will be best served.

Mr. Justice Ramirez Bages dissented in a separate opinion.