PRESIDENTIAL DECREE No. 968 July 24, 1976 Section 3. Meaning of Terms.
 As used in this Decree, the
ESTABLISHING A PROBATION SYSTEM, APPROPRIATING
FUNDS THEREFOR AND FOR OTHER PURPOSES
WHEREAS, one of the major goals of the government is to
establish a more enlightened and humane correctional
systems that will promote the reformation of offenders and
thereby reduce the incidence of recidivism;
WHEREAS, the confinement of all offenders prisons and other
institutions with rehabilitation programs constitutes an
onerous drain on the financial resources of the country; and
WHEREAS, there is a need to provide a less costly alternative
to the imprisonment of offenders who are likely to respond to
individualized, community-based treatment programs;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby order and decree the following:
Section 1. Title and Scope of the Decree. This Decree shall be
known as the Probation Law of 1976. It shall apply to all
offenders except those entitled to the benefits under the
provisions of Presidential Decree numbered Six Hundred and
three and similar laws.
Section 2. Purpose. This Decree shall be interpreted so as to:
(a) promote the correction and rehabilitation of an
offender by providing him with individualized
treatment;
(b) provide an opportunity for the reformation of a
penitent offender which might be less probable if he
were to serve a prison sentence; and
(c) prevent the commission of offenses.
following shall, unless the context otherwise requires, be
construed thus:
(a) "Probation" is a disposition under which a
defendant, after conviction and sentence, is released
subject to conditions imposed by the court and to the
supervision of a probation officer.
(b) "Probationer" means a person placed on probation.
(c) "Probation Officer" means one who investigates for
the court a referral for probation or supervises a
probationer or both.
Section 4. Grant of Probation. Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and
place the defendant on probation for such period and upon
such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence
of conviction. The filing of the application shall be deemed a
waver of the right to appeal, or the automatic withdrawal of a
pending appeal.
An order granting or denying probation shall not be
appealable.
Section 5. Post-sentence Investigation. No person shall be
placed on probation except upon prior investigation by the
probation officer and a determination by the court that the
ends of justice and the best interest of the public as well as
that of the defendant will be served thereby.
Section 6. Form of Investigation Report. The investigation
report to be submitted by the probation officer under Section
5 hereof shall be in the form prescribed by the Probation
Administrator and approved by the Secretary of Justice.
Section 7. Period for Submission of Investigation Report. The
probation officer shall submit to the court the investigation
report on a defendant not later than sixty days from receipt of
the order of said court to conduct the investigation. The court
shall resolve the petition for probation not later than five days
after receipt of said report.
Pending submission of the investigation report and the
resolution of the petition, the defendant may be allowed on
temporary liberty under his bail filed in the criminal case;
Provided, That, in case where no bail was filed or that the
defendant is incapable of filing one, the court may allow the
release of the defendant on recognize the custody of a
responsible member of the community who shall guarantee
his appearance whenever required by the court.
Section 8. Criteria for Placing an Offender on Probation. In
determining whether an offender may be placed on probation,
the court shall consider all information relative, to the
character, antecedents, environment, mental and physical
condition of the offender, and available institutional and
community resources. Probation shall be denied if the court
finds that:
(a) the offender is in need of correctional treatment
that can be provided most effectively by his
commitment to an institution; or
(b) there is undue risk that during the period of
probation the offender will commit another crime; or
(c) probation will depreciate the seriousness of the
offense committed.
Section 9. Disqualified Offenders. The benefits of this Decree
shall not be extended to those:
(a) sentenced to serve a maximum term of
imprisonment of more than six years;
(b) convicted of any offense against the security of the
State;
(c) who have previously been convicted by final
judgment of an offense punished by imprisonment of
not less than one month and one day and/or a fine of
not less than Two Hundred Pesos;
(d) who have been once on probation under the
provisions of this Decree; and
(e) who are already serving sentence at the time the
substantive provisions of this Decree became
applicable pursuant to Section 33 hereof.
Section 10. Conditions of Probation. Every probation order
issued by the court shall contain conditions requiring that the
probationer shall:
(a) present himself to the probation officer designated
to undertake his supervision at such place as may be
specified in the order within seventy-two hours from
receipt of said order;
(b) report to the probation officer at least once a
month at such time and place as specified by said
officer.
The court may also require the probationer to:
(a) cooperate with a program of supervision;
(b) meet his family responsibilities;
 (c) devote himself to a specific employment and not to
change said employment without the prior written
approval of the probation officer;
(d) undergo medical, psychological or psychiatric
examination and treatment and enter and remain in a
specified institution, when required for that purpose;
(e) pursue a prescribed secular study or vocational
training;
(f) attend or reside in a facility established for
instruction, recreation or residence of persons on
probation;
(g) refrain from visiting houses of ill-repute;
(h) abstain from drinking intoxicating beverages to
excess;
(i) permit to probation officer or an authorized social
worker to visit his home and place or work;
(j) reside at premises approved by it and not to change
his residence without its prior written approval; or
(k) satisfy any other condition related to the
rehabilitation of the defendant and not unduly
restrictive of his liberty or incompatible with his
freedom of conscience.
Section 11. Effectivity of Probation Order. A probation order
shall take effect upon its issuance, at which time the court
shall inform the offender of the consequences thereof and
explain that upon his failure to comply with any of the
conditions prescribed in the said order or his commission of
another offense, he shall serve the penalty imposed for the
offense under which he was placed on probation.
Section 12. Modification of Condition of Probation. During the
period of probation, the court may, upon application of either
the probationer or the probation officer, revise or modify the
conditions or period of probation. The court shall notify either
the probationer or the probation officer of the filing such an
application so as to give both parties an opportunity to be
heard thereon.
The court shall inform in writing the probation officer and the
probationer of any change in the period or conditions of
probation.
Section 13. Control and Supervision of Probationer. The
probationer and his probation program shall be under the
control of the court who placed him on probation subject to
actual supervision and visitation by a probation officer.
Whenever a probationer is permitted to reside in a place
under the jurisdiction of another court, control over him shall
be transferred to the Executive Judge of the Court of First
Instance of that place, and in such a case, a copy of the
probation order, the investigation report and other pertinent
records shall be furnished said Executive Judge. Thereafter,
the Executive Judge to whom jurisdiction over the probationer
is transferred shall have the power with respect to him that
was previously possessed by the court which granted the
probation.
Section 14. Period of Probation.
(a) The period of probation of a defendant sentenced
to a term of imprisonment of not more than one year
shall not exceed two years, and in all other cases, said
period shall not exceed six years.
(b) When the sentence imposes a fine only and the
offender is made to serve subsidiary imprisonment in
case of insolvency, the period of probation shall not be
less than nor to be more than twice the total number
 of days of subsidiary imprisonment as computed at the
rate established, in Article thirty-nine of the Revised
Penal Code, as amended.
Section 15. Arrest of Probationer; Subsequent Disposition. At
any time during probation, the court may issue a warrant for
the arrest of a probationer for violation of any of the
conditions of probation. The probationer, once arrested and
detained, shall immediately be brought before the court for a
hearing, which may be informal and summary, of the violation
charged. The defendant may be admitted to bail pending such
hearing. In such a case, the provisions regarding release on
bail of persons charged with a crime shall be applicable to
probationers arrested under this provision. If the violation is
established, the court may revoke or continue his probation
and modify the conditions thereof. If revoked, the court shall
order the probationer to serve the sentence originally
imposed. An order revoking the grant of probation or
modifying the terms and conditions thereof shall not be
appealable.
Section 16. Termination of Probation. After the period of
probation and upon consideration of the report and
recommendation of the probation officer, the court may order
the final discharge of the probationer upon finding that he has
fulfilled the terms and conditions of his probation and
thereupon the case is deemed terminated.
The final discharge of the probationer shall operate to restore
to him all civil rights lost or suspend as a result of his
conviction and to fully discharge his liability for any fine
imposed as to the offense for which probation was granted.
The probationer and the probation officer shall each be
furnished with a copy of such order.
Section 17. Confidentiality of Records. The investigation report
and the supervision history of a probationer obtained under
this Decree shall be privileged and shall not be disclosed
directly or indirectly to anyone other than the Probation
Administration or the court concerned, except that the court,
in its discretion, may permit the probationer of his attorney to
inspect the aforementioned documents or parts thereof
whenever the best interest of the probationer make such
disclosure desirable or helpful: Provided, Further, That, any
government office or agency engaged in the correction or
rehabilitation of offenders may, if necessary, obtain copies of
said documents for its official use from the proper court or the
Administration.
Section 18. The Probation Administration. There is hereby
created under the Department of Justice an agency to be
known as the Probation Administration herein referred to as
the Administration, which shall exercise general supervision
over all probationers.
The Administration shall have such staff, operating units and
personnel as may be necessary for the proper execution of its
functions.
Section 19. Probation Administration. The Administration shall
be headed by the Probation Administrator, hereinafter
referred to as the Administrator, who shall be appointed by
the President of the Philippines. He shall hold office during
good behavior and shall not be removed except for cause.
The Administrator shall receive an annual salary of at least
forty thousand pesos. His powers and duties shall be to:
(a) act as the executive officer of the Administration;
(b) exercise supervision and control over all probation
officers;
 (c) make annual reports to the Secretary of Justice, in
such form as the latter may prescribe, concerning the
operation, administration and improvement of the
probation system;
(d) promulgate, subject to the approval of the
Secretary of Justice, the necessary rules relative to the
methods and procedures of the probation process;
(e) recommend to the Secretary of Justice the
appointment of the subordinate personnel of his
Administration and other offices established in this
Decree; and
(f) generally, perform such duties and exercise such
powers as may be necessary or incidental to achieve
the objectives of this Decree.
Section 20. Assistant Probation Administrator. There shall be
an Assistant Probation Administrator who shall assist the
Administrator perform such duties as may be assigned to him
by the latter and as may be provided by law. In the absence of
the Administrator, he shall act as head of the Administration.
He shall be appointed by the President of the Philippines and
shall receive an annual salary of at least thirty-six thousand
pesos.
Section 21. Qualifications of the Administrator and Assistant
Probation Administrator. To be eligible for Appointment as
Administrator or Assistant Probation Administrator, a person
must be at least thirty-five years of age, holder of a master's
degree or its equivalent in either criminology, social work,
corrections, penology, psychology, sociology, public
administration, law, police science, police administration, or
related fields, and should have at least five years of
supervisory experience, or be a member of the Philippine Bar
with at least seven years of supervisory experience.
REPUBLIC ACT No. 10707
AN ACT AMENDING PRESIDENTIAL DECREE NO. 968,
OTHERWISE KNOWN AS THE “PROBATION LAW OF 1976”, AS
AMENDED
Be it enacted by the Senate and House of Representatives of
the Philippines in Congress assembled:
SECTION 1. Section 4 of Presidential Decree No. 968, as
amended, is hereby further amended to read as follows:
“SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant for a probationable penalty and upon
application by said defendant within the period for perfecting
an appeal, suspend the execution of the sentence and place
the defendant on probation for such period and upon such
terms and conditions as it may deem best. No application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction:
Provided, That when a judgment of conviction imposing a non-
probationable penalty is appealed or reviewed, and such
judgment is modified through the imposition of a
probationable penalty, the defendant shall be allowed to
apply for probation based on the modified decision before
such decision becomes final. The application for probation
based on the modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-
probationable penalty was rendered, or in the trial court
where such case has since been re-raffled. In a case involving
several defendants where some have taken further appeal,
the other defendants may apply for probation by submitting a
written application and attaching thereto a certified true copy
of the judgment of conviction.
“The trial court shall, upon receipt of the application filed,
suspend the execution of the sentence imposed in the
judgment.
“This notwithstanding, the accused shall lose the benefit of
probation should he seek a review of the modified decision
which already imposes a probationable penalty.
“Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. The filing of the
application shall be deemed a waiver of the right to
appeal.1âwphi1
“An order granting or denying probation shall not be
appealable.”
SECTION 2. Section 9 of the same Decree, as amended, is
hereby further amended to read as follows:
“SEC. 9. Disqualified Offenders. — The benefits of this Decree
shall not be extended to those:
“a. sentenced to serve a maximum term of
imprisonment of more than six (6) years;
“b. convicted of any crime against the national
security;
“c. who have previously been convicted by final
judgment of an offense punished by imprisonment of
more than six (6) months and one (1) day and/or a fine
of more than one thousand pesos (P1,000.00);
“d. who have been once on probation under the
provisions of this Decree; and
“e. who are already serving sentence at the time the
substantive provisions of this Decree became
applicable pursuant to Section 33 hereof.”
SECTION 3. Section 16 of the same Decree, as amended, is
hereby further amended to read as follows:
“SEC. 16. Termination of Probation. — After the period
of probation and upon consideration of the report and
recommendation of the probation officer, the court
may order the final discharge of the probationer upon
finding that he has fulfilled the terms and conditions of
his probation and thereupon the case is deemed
terminated.
“The final discharge of the probationer shall operate to
restore to him all civil rights lost or suspended as a
result of his conviction and to totally extinguish his
criminal liability as to the offense for which probation
was granted.
“The probationer and the probation officer shall each
be furnished with a copy of such order.”
SECTION 4. Section 24 of the same Decree is hereby amended
to read as follows:
“SEC. 24. Miscellaneous Powers of Regional, Provincial
and City Probation Officers. — Regional, Provincial or
City Probation Officers shall have the authority within
their territorial jurisdiction to administer oaths and
acknowledgments and to take depositions in
connection with their duties and functions under this
Decree. They shall also have, with respect to
probationers under their care, the powers of a police
officer. They shall be considered as persons in
authority.”
SECTION 5. Section 27 of the same Decree is hereby amended
to read as follows:
“SEC. 27. Field Assistants, Subordinate Personnel. –
Regional, Provincial or City Probation Officers shall be
assisted by such field assistants and subordinate
personnel as may be necessary to enable them to carry
out their duties effectively.”
SECTION 6. Section 28 of the same Decree is hereby amended
to read as follows:
“SEC. 28. Volunteer Probation Assistants (VPAs). — To
assist the Chief Probation and Parole Officers in the
supervised treatment program of the probationers, the
Probation Administrator may appoint citizens of good
repute and probity, who have the willingness, aptitude,
and capability to act as VPAs.
“VPAs shall not receive any regular compensation
except for reasonable transportation and meal
allowances, as may be determined by the Probation
Administrator, for services rendered as VPAs.
“They shall hold office for a two (2)-year term which
may be renewed or recalled anytime for a just cause.
Their functions, qualifications, continuance in office
and maximum case loads shall be further prescribed
under the implementing rules and regulations of this
Act.
“There shall be a reasonable number of VPAs in every
regional, provincial, and city probation office. In order
to strengthen the functional relationship of VPAs and
the Probation Administrator, the latter shall encourage
and support the former to organize themselves in the
national, regional, provincial, and city levels for
effective utilization, coordination, and sustainability of
the volunteer program.”
SECTION 7. Separability Clause. — If any provision of this Act is
declared invalid, the provisions hereof not affected by such
declaration shall remain in full force and effect.
SECTION 8. Repealing Clause. — All laws, executive orders, or
administrative orders, rules and regulations or parts thereof
which are inconsistent with this Act are hereby amended,
repealed or modified accordingly.
SECTION 9. Appropriations Clause. — The amount necessary
to carry out the provisions of this Act shall be included in the
General Appropriations Act of the year following its
enactment into law.
SECTION 10. Implementing Rules and Regulations. — Within
sixty (60) days from the approval of this Act, the Department
of Justice shall promulgate such rules and regulations as may
be necessary to carry out the provisions of this Act.
SECTION 11. Effectivity. — This Act shall take effect
immediately after its publication in the Official Gazette or in
two (2) newspapers of general circulation.
Section 22. Regional Office; Regional Probation Officer. The
Administration shall have regional offices organized in
accordance with the field service area patterns established
under the Integrated Reorganization Plan.
Such regional offices shall be headed by a Regional Probation
Officer who shall be appointed by President of the Philippines
in accordance with the Integrated Reorganization Plan and
upon the recommendation of the Secretary of Justice.
The Regional Probation Officer shall exercise supervision and
control over all probation officer within his jurisdiction and
such duties as may assigned to him by the Administrator. He
shall have an annual salary of at least twenty-four thousand
pesos.
He shall, whenever necessary, be assisted by an Assistant
Regional Probation Officer who shall also be appointed by the
President of the Philippines, upon recommendation of the
Secretary of Justice, with an annual salary of at least twenty
thousand pesos.
Section 23. Provincial and City Probation Officers. There shall
be at least one probation officer in each province and city who
shall be appointed by the Secretary of Justice upon
recommendation of the Administrator and in accordance with
civil service law and rules.
The Provincial or City Probation Officer shall receive an annual
salary of at least eighteen thousand four hundred pesos.
His duties shall be to:
(a) investigate all persons referred to him for
investigation by the proper court or the Administrator;
(b) instruct all probationers under his supervision of
that of the probation aide on the terms and conditions
of their probations;
(c) keep himself informed of the conduct and condition
of probationers under his charge and use all suitable
methods to bring about an improvement in their
conduct and conditions;
(d) maintain a detailed record of his work and submit
such written reports as may be required by the
Administration or the court having jurisdiction over the
probationer under his supervision;
(e) prepare a list of qualified residents of the province
or city where he is assigned who are willing to act as
probation aides;
(f) supervise the training of probation aides and
oversee the latter's supervision of probationers;
(g) exercise supervision and control over all field
assistants, probation aides and other personnel; and
(h) perform such duties as may be assigned by the
court or the Administration.
Section 24. Miscellaneous Powers of Provincial and City
Probation Officers. Provincial or City Probation Officers shall
have the authority within their territorial jurisdiction to
administer oaths and acknowledgments and to take
depositions in connection with their duties and functions
under this Decree. They shall also have, with respect to
probationers under their care, the powers of police officer.
Section 25. Qualifications of Regional, Assistant Regional,
Provincial, and City Probation Officers. No person shall be
appointed Regional or Assistant Regional or Provincial or City
Probation Officer unless he possesses at least a bachelor's
degree with a major in social work, sociology, psychology,
criminology, penology, corrections, police science,
administration, or related fields and has at least three years of
experience in work requiring any of the abovementioned
disciplines, or is a member of the Philippine Bar with at least
three years of supervisory experience.
Whenever practicable, the Provincial or City Probation Officer
shall be appointed from among qualified residents of the
province or city where he will be assigned to work.
Section 26. Organization. Within twelve months from the
approval of this Decree, the Secretary of Justice shall organize
the administrative structure of the Administration and the
other agencies created herein. During said period, he shall also
determine the staffing patterns of the regional, provincial and
city probation offices with the end in view of achieving Section 31. Repealing Clause. All provisions of existing laws,
maximum efficiency and economy in the operations of the orders and regulations contrary to or inconsistent with this
probation system. Decree are hereby repealed or modified accordingly.
Section 27. Field Assistants, Subordinate Personnel, Provincial Section 32. Separability of Provisions. If any part, section or
or City Probation Officers shall be assisted by such field provision of this Decree shall be held invalid or
assistants and subordinate personnel as may be necessary to unconstitutional, no other parts, sections or provisions hereof
enable them to carry out their duties effectively. shall be affected thereby.
Section 28. Probation Aides. To assist the Provincial or City Section 33. Effectivity. This Decree shall take effect upon its
Probation Officers in the supervision of probationers, the approval: Provided, However, That, the application of its
Probation Administrator may appoint citizens of good repute substantive provisions concerning the grant of probation shall
and probity to act as probation aides. only take effect twelve months after the certification by the
Probation Aides shall not receive any regular compensation Secretary of Justice to the Chief Justice of the Supreme Court
for services except for reasonable travel allowance. They shall that the administrative structure of the Probation
hold office for such period as may be determined by the Administration and of the other agencies has been organized.
Probation Administrator. Their qualifications and maximum DONE in the City of Manila, this 24th day of July in the year of
case loads shall be provided in the rules promulgated pursuant Our Lord, nineteen hundred and seventy-six.
to this Decree.
Section 29. Violation of Confidential Nature of Probation
Records. The penalty of imprisonment ranging from six
months and one day to six years and a fine ranging from
hundred to six thousand pesos shall be imposed upon any
person who violates Section 17 hereof.
Section 30. Appropriations. There is hereby authorized the
appropriation of the sum of Six Million Five Hundred Thousand
Pesos or so much as may be necessary, out of any funds in the
National Treasury not otherwise appropriated, to carry out the
purposes of this Decree. Thereafter, the amount of at least
Ten Million Five Hundred Thousand Pesos or so much as may
be necessary shall be included in the annual appropriations of
the national government.

G.R. No. 206513
MUSTAPHA DIMAKUTA MARUHOM, Petitioner
vs.
PEOPLE OF THE PHIILPPINES, Respondent
DECISION
PERALTA, J.:
The Court is now faced with one of the predicaments I
discussed in my Dissenting and Concurring Opinion
in Colinares v. People.1 The question regarding the application
of the Probation Law is again inescapably intertwined with the
present petition. Consequently, I must reiterate my assertions
and arguments in Colinares to the case at bar.
In the present controversy, petitioner Mustapha Dimakuta y
Maruhom alias Boyet was indicted for Violation of Section 5
Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the
Special Protection of Children Against Abuse, Exploitation and
Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City
of Las Piñas, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with lewd
designs, did then and there willfully, unlawfully and
feloniously commit a lascivious conduct upon the person of
one AAA, who was then a sixteen (16) year old minor, by then
and there embracing her, touching her breast and private part
against her will and without her consent and the act
complained of is prejudicial to the physical and psychological
development of the complainant.2
After trial, the RTC promulgated its Decision 3 which convicted
petitioner of the crime charged and sentenced him to suffer
an indeterminate penalty of imprisonment ranging from ten
(10) years of prision mayor, as minimum, to seventeen (17)
years, four (4) months and one (1) day of reclusion temporal,
as maximum, with the accessory penalty of perpetual absolute
disqualification. In addition, he was directed to pay a fine of
₱20,000.00, civil indemnity of ₱25,000.00, and moral damages
of ₱25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of
Appeals (CA) arguing, among other things, that even assuming
he committed the acts imputed, still there is no evidence
showing that the same were done without the victim’s
consent or through force, duress, intimidation or violence
upon her. Surprisingly, when asked to comment on the appeal,
the Office of the Solicitor General (OSG), relying heavily
on People v. Abello,5 opined that petitioner should have been
convicted only of Acts of Lasciviousness under Article 336 of
the Revised Penal Code (RPC) in view of the prosecution’s
failure to establish that the lascivious acts were attended by
force or coercion because the victim was asleep at the time
the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision 6 adopting the
recommendation of the OSG. In modifying the RTC Decision,
petitioner was found guilty of Acts of Lasciviousness under
Article 336 of the RPC and was sentenced to suffer the
indeterminate penalty of six (6) months of arresto mayor, as
minimum, to four (4) years and two (2) months of prision
correccional, as maximum. Likewise, he was ordered to pay
₱20,000.00 as civil indemnity and ₱30,000.00 as moral
damages.
Petitioner received a copy of CA Decision on July 6,
2012.7 Instead of further appealing the case, he filed on July
23, 2012 before the CA a manifestation with motion to allow
him to apply for probation upon remand of the case to the
RTC.8 Petitioner invoked the case of Colinares v. People9 which
allowed petitioner therein to apply for probation after his
sentence was later reduced on appeal by the Supreme Court.
The CA issued a Resolution on September 3, 2012 denying
petitioner’s manifestation with motion.10 It was ruled that
Colinares is inapplicable since petitioner therein raised as sole
issue the correctness of the penalty imposed and claimed that
the evidence presented warranted only a conviction for the
lesser offense.1âwphi1 Instead, the appellate court viewed as
appropriate the case of Lagrosa v. People,11 wherein the
application for probation was denied because petitioners
therein put in issue on appeal the merits of their conviction
and did not simply assail the propriety of the penalties
imposed.
Petitioner filed a motion for reconsideration,12 but it was
denied in a Resolution13 dated March 13, 2013; hence, this
petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation
Law is warranted in order to better understand and apply the
wisdom of its framers to cases invoking its application.
In this jurisdiction, the concept of probation was introduced
during the American colonial period.14 For juvenile
delinquents, Act No. 320315 was enacted on December 3,
1924. It was later amended by Act Nos. 3309, 16 3559,17 and
3725.18 As to offenders who are eighteen years old and above,
Act No. 422119 was passed by the legislature and took effect
on August 7, 1935. Said Act allowed defendants who are
convicted and sentenced by a Court of First Instance or by the
Supreme Court on appeal, except those who are convicted of
offenses enumerated in Section 8 thereof, 20 to be placed on
probation upon application after the sentence has become
final and before its service has begun.21 However, We declared
in People v. Vera22 that Act No. 4221 is unconstitutional and
void as it constitutes an improper and unlawful delegation of
legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E.
Marcos issued Presidential Decree (P.D.) No. 968 23 on July 24,
1976. Originally, P.D. No. 968 allowed the filing of an
application for probation at any time after the defendant had
been convicted and sentenced. Section 4 of which provides:
SEC. 4. Grant of Probation. – Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and
place the defendant on probation for such period and upon
such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence
of conviction. The filing of the application shall be deemed a
waiver of the right to appeal, or the automatic withdrawal of a
pending appeal. An order granting or denying probation shall
not be appealable.24
Later, the filing of an application for probation pending appeal
was still allowed when Section 4 of P.D. No. 968 was amended
by P.D. No. 125725 on December 1, 1977 by providing that
such application may be made after the defendant had been
convicted and sentenced but before he begins to serve his
sentence. Thus:
SEC. 4. Grant of Probation. – Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of
said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem
best.
The prosecuting officer concerned shall be notified by the
court of the filing of the application for probation and he may
submit his comment on such application within ten days from
receipt of the notification.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine with subsidiary imprisonment
in case of insolvency. An application for probation shall be
filed with the trial court, with notice to the appellate court if
an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending
appeal. In the latter case, however, if the application is filed on
or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis
of the judgment of the appellate court.
An order granting or denying probation shall not be
appealable.26
On October 5, 1985, Section 4 was subsequently amended by
P.D. No. 1990.27 Henceforth, the policy has been to allow
convicted and sentenced defendant to apply for probation
within the 15-day period for perfecting an appeal. As
modified, Section 4 of the Probation Law now reads:
SEC. 4. Grant of Probation. – Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal,
suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms
and conditions as it may deem best; Provided, that no
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable.28
The reason for the disallowance may be inferred from the
preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who
are convicted of offenses and who may be entitled to
probation still appeal the judgment of conviction even up to
the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to
mention the huge expenses of litigation, on the part of the
State;
WHEREAS, the time, effort and expenses of the Government
in investigating and prosecuting accused persons from the
lower courts up to the Supreme Court, are oftentimes
rendered nugatory when, after the appellate Court finally
affirms the judgment of conviction, the defendant applies for
and is granted probation;
WHEREAS, probation was not intended as an escape hatch
and should not be used to obstruct and delay the
administration of justice, but should be availed of at the first
opportunity by offenders who are willing to be reformed and
rehabilitated;
WHEREAS, it becomes imperative to remedy the problems
abovementioned confronting our probation
system[.]
Observing the developments in our Probation Law, the Court
settled in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No.
1257, reveals that it had established a prolonged but definite
period during which an application for probation may be
granted by the trial court. That period was: "After [the trial
court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence." Clearly, the cut-off
time – commencement of service of sentence – takes
place not only after an appeal has been taken from the
sentence of conviction, but even after judgment has been
rendered by the appellate court and after judgment has
become final. Indeed, in this last situation, Section 4, as
amended by P.D. No. 1257 provides that "the application [for
probation] shall be acted upon by the trial court on the basis
of the judgment of the appellate court"; for the appellate
court might have increased or reduced the original penalty
imposed by the trial court. x x x
xxxx
In sharp contrast with Section 4 as amended by PD No. 1257,
in its present form, Section 4 establishes a much narrower
period during which an application for probation may be filed
with the trial court: "after [the trial court] shall have convicted
and sentenced a defendant and – within the period for
perfecting an appeal –." As if to provide emphasis, a
new proviso was appended to the first paragraph of Section 4
that expressly prohibits the grant of an application for
probation "if the defendant has perfected an appeal from the
judgment of conviction." It is worthy of note too that Section 4
in its present form has dropped the phrase which said that the
filing of an application for probation means "the
automatic withdrawal of a pending appeal." The deletion is
quite logical since an application for probation can no longer
be filed once an appeal is perfected; there can, therefore, be
no pending appeal that would have to be withdrawn.
xxxx
We find ourselves unable to accept the eloquently stated
arguments of petitioner's counsel and the dissenting opinion.
We are unable to persuade ourselves that Section 4 as it now
stands, in authorizing the trial court to grant probation "upon
application by [the] defendant within the period for perfecting
an appeal" and in reiterating in the proviso that
"no application for probation shall be entertained or granted
if the defendant has perfected an appeal from the judgment of
conviction."
did not really mean to refer to the fifteen-day period
established, as indicated above, by B.P. Blg. 129, the Interim
Rules and Guidelines Implementing B.P. Blg. 129 and the 1985
Rules on Criminal Procedure, but rather to some vague and
undefined time, i.e., "the earliest opportunity" to withdraw
the defendant's appeal. The whereas clauses invoked by
petitioner did not, of course, refer to the fifteen-day period.
There was absolutely no reason why they should have so
referred to that period for the operative words of Section 4
already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly
speaking; they are not part of the operative language of the
statute. Nonetheless, whereas clauses may be helpful to the
extent they articulate the general purpose or reason
underlying a new enactment, in the present case, an
enactment which drastically but clearly changed the
substantive content of Section 4 existing before the
promulgation of P.D. No. 1990. Whereas clauses, however,
cannot control the specific terms of the statute; in the instant
case, the whereas clauses of P.D. No. 1990 do not purport to
control or modify the terms of Section 4 as amended. Upon
the other hand, the term "period for perfecting an appeal"
used in Section 4 may be seen to furnish specification for the
loose language "first opportunity" employed in the fourth
whereas clause. "Perfection of an appeal" is, of course, a term
of art but it is a term of art widely understood by lawyers and
judges and Section 4 of the Probation Law addresses itself
essentially to judges and lawyers. "Perfecting an appeal" has
no sensible meaning apart from the meaning given to those
words in our procedural law and so the law-making agency
could only have intended to refer the law-making agency
could only have intended to refer to the meaning of those
words in the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of
the Probation Law was amended precisely to put a stop to the
practice of appealing from judgments of conviction even if the
sentence is probationable, for the purpose of securing an
acquittal and applying for the probation only if the accused
fails in his bid.32 The Probation Law "expressly requires that an
accused must not have appealed his conviction before he can
avail himself of probation. This outlaws the element of
speculation on the part of the accused – to wager on the
result of his appeal – that when his conviction is finally
affirmed on appeal, the moment of truth well nigh at hand
and the service of his sentence inevitable, he now applies for
probation as an ‘escape hatch,’ thus rendering nugatory the
appellate court's affirmance of his conviction."33
Verily, Section 4 of the Probation Law provides that the
application for probation must be filed with the trial court
within the 15-day period for perfecting an appeal. The need to
file it within such period is intended to encourage offenders,
who are willing to be reformed and rehabilitated, to avail
themselves of probation at the first opportunity. 34 If the
application for probation is filed beyond the 15-day period,
then the judgment becomes final and executory and the lower
court can no longer act on the application for probation. On
the other hand, if a notice of appeal is perfected, the trial
court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the
judgment when it has become final and executory.
In view of the latest amendment to Section 4 of the Probation
Law that "no application for probation shall be entertained or
granted if the defendant has perfected an appeal from the
judgment of conviction," prevailing jurisprudence35 treats
appeal and probation as mutually exclusive remedies because
the law is unmistakable about it.36 Indeed, the law is very clear
and a contrary interpretation would counter its envisioned
mandate. Courts have no authority to invoke "liberal
interpretation" or "the spirit of the law" where the words of
the statute themselves, and as illuminated by the history of
that statute, leave no room for doubt or interpretation. 37 To
be sure, the remedy of convicted felons who want to avail of
the benefits of probation even after the remedy of an appeal
is to go to the Congress and ask for the amendment of the
law. To surmise a converse construal of the provision would
be dangerously encroaching on the power of the legislature to
enact laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority
opinion in Colinares,38 the application of the Probation Law in
the said case deserves a second hard look so as to correct the
mistake in the application of the law in that particular case
and in similar cases which will be filed before the courts and
inevitably elevated to Us like this petition.
To refresh, Colinares concluded that since the trial court
imposed a penalty beyond what is allowed by the Probation
Law, albeit erroneously, the accused was deprived of his
choice to apply for probation and instead was compelled to
appeal the case. The reprehensible practice intended to be
avoided by the law was, therefore, not present when he
appealed the trial court’s decision. Taking into account that
the accused argued in his appeal that the evidence presented
against him warranted his conviction only for attempted, not
frustrated, homicide, the majority of the Court opined that the
accused had purposely sought to bring down the impossible
penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused
in Colinares should not have been allowed the benefit of
probation. As I have previously stated and insisted upon,
probation is not a right granted to a convicted offender; it is a
special privilege granted by the State to a penitent qualified
offender,39 who does not possess the disqualifications under
Section 9 of P.D. No. 968, as amended. 40 Likewise, the
Probation Law is not a penal law for it to be liberally construed
to favor the accused.41
In the American law paradigm, probation is considered as an
act of clemency and grace, not a matter of right. 42 It is a
privilege granted by the State, not a right to which a criminal
defendant is entitled.43 In City of Aberdeen v. Regan,44 it was
pronounced that:
The granting of a deferred sentence and probation, following a
plea or verdict of guilty, is a rehabilitative measure and, as
such, is not a matter of right but is a matter of grace, privilege,
or clemency granted to the deserving.
As such, even in the American criminal justice model,
probation should be granted only to the deserving or, in our
system, only to qualified "penitent offenders" who are willing
to be reformed and rehabilitated. Corollarily, in this
jurisdiction, the wisdom behind the Probation Law is outlined
in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender
by providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a
prison sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will
adopt as jurisprudential doctrine the opinion that an accused
may still be allowed to apply for probation even if he has filed
a notice of appeal, it must be categorically stated that such
appeal must be limited to the following grounds:
1. When the appeal is merely intended for the correction of
the penalty imposed by the lower court, which when corrected
would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for
which the accused was convicted and that the accused should
only be liable to the lesser offense which is necessarily
included in the crime for which he was originally convicted
and the proper penalty imposable is within the probationable
period.
In both instances, the penalty imposed by the trial court for
the crime committed by the accused is more than six years;
hence, the sentence disqualifies the accused from applying for
probation. The accused should then be allowed to file an
appeal under the afore-stated grounds to seek a review of the
crime and/or penalty imposed by the trial court. If, on appeal,
the appellate court finds it proper to modify the crime and/or
the penalty imposed, and the penalty finally imposed is within
the probationable period, the accused should still be allowed
to apply for probation.
In addition, before an appeal is filed based on the grounds
enumerated above, the accused should first file a motion for
reconsideration of the decision of the trial court anchored on
the above-stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for
reconsideration will give the trial court an opportunity to
review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is
agreeable to the judgment of conviction and does not intend
to appeal from it, but he only seeks a review of the crime
and/or penalty imposed, so that in the event that the penalty
will be modified within the probationable limit, he will
immediately apply for probation. Without such motion for
reconsideration, the notice of appeal should be denied
outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but
was denied by the trial court;
(2) that the appeal is only for reviewing the penalty imposed
by the lower court or the conviction should only be for a lesser
crime necessarily included in the crime charged in the
information; and
(3) that the accused-appellant is not seeking acquittal of the
conviction.
To note, what Section 4 of the Probation Law prohibits is an
appeal from the judgment of conviction, which involves a
review of the merits of the case and the determination of
whether the accused is entitled to acquittal. However, under
the recommended grounds for appeal which were
enumerated earlier, the purpose of the appeal is not to assail
the judgment of conviction but to question only the propriety
of the sentence, particularly the penalty imposed or the crime
for which the accused was convicted, as the accused intends
to apply for probation upon correction of the penalty or
conviction for the lesser offense. If the CA finds it proper to
modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, or the
crime for which the accused is eventually convicted imposes a
probationable penalty, application for probation after the case
is remanded to the trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do
not contravene Section 4 of the Probation Law, which
expressly prohibits only an appeal from the judgment of
conviction. In such instances, the ultimate reason of the
accused for filing the appeal based on the afore-stated
grounds is to determine whether he may avail of probation
based on the review by the appellate court of the crime
and/or penalty imposed by the trial court. Allowing the afore-
stated grounds for appeal would give an accused the
opportunity to apply for probation if his ground for appeal is
found to be meritorious by the appellate court, thus, serving
the purpose of the Probation Law to promote the reformation
of a penitent offender outside of prison.
On the other hand, probation should not be granted to the
accused in the following instances:
1. When the accused is convicted by the trial court of a
crime where the penalty imposed is within the probationable
period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the
merits of his conviction in issue, even if there is an alternative
prayer for the correction of the penalty imposed by the trial
court or for a conviction to a lesser crime, which is necessarily
included in the crime in which he was convicted where the
penalty is within the probationable period.
Both instances violate the spirit and letter of the law, as
Section 4 of the Probation Law prohibits granting an
application for probation if an appeal from the sentence of
conviction has been perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of
conviction before the CA alleging that it was error on the part
of the RTC to have found him guilty of violating Section 5(b),
Article III of R.A. No. 7610. He argued that the RTC should not
have given much faith and credence to the testimony of the
victim because it was tainted with inconsistencies. Moreover,
he went on to assert that even assuming he committed the
acts imputed on him, still there was no evidence showing that
the lascivious acts were committed without consent or
through force, duress, intimidation or violence because the
victim at that time was in deep slumber. It is apparent that
petitioner anchored his appeal on a claim of innocence and/or
lack of sufficient evidence to support his conviction of the
offense charged, which is clearly inconsistent with the tenor of
the Probation Law that only qualified penitent offender are
allowed to apply for probation. The CA, therefore, did not err
in applying the similar case of Lagrosa v. People46 wherein the
protestations of petitioners therein did not simply assail the
propriety of the penalties imposed but meant a profession of
guiltlessness, if not complete innocence.
To be sure, if petitioner intended in the first instance to be
entitled to apply for probation he should have admitted his
guilt and buttressed his appeal on a claim that the penalty
imposed by the RTC was erroneous or that he is only guilty of
a lesser offense necessarily included in the crime for which he
was originally convicted. Unfortunately for him, he already
perfected his appeal and it is late in the day to avail the
benefits of probation despite the imposition of the CA of a
probationable penalty.
As regards the CA Decision convicting petitioner of the crime
of Acts of Lasciviousness under Article 336 of the RPC, such
conclusion clearly contravenes the law and existing
jurisprudence.
Petitioner was charged and convicted by the trial court with
violation of Section 5(b), Article III of R.A. No. 7610 based on
the complaint of a sixteen (16)-year-old girl for allegedly
molesting her by touching her breast and vagina while she was
sleeping. The provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse
or lascivious conduct, are deemed to be children exploited in
prostitution and other sexual abuse.
The penalty of reclusion temporal in its medium period
to reclusion perpetua shall be imposed upon the following:
xxxx
(b) Those who commit the act of sexual intercourse
or lascivious conduct with a child exploited in prostitution or
subject to other sexual abus; Provided, That when the victim is
under twelve (12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape and
Article 336 of Act No. 3815, as amended, the Revised Penal
Code, for rape or lascivious conduct, as the case may
be: Provided, That the penalty for lasciviousconduct when the
victim is under twelve (12) years of age shall be reclusion
temporal I its medium period; x x x(Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or
lascivious conduct.
2. The said act is performed with a child exploited in
prostitution or subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of
age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed
subjected to other sexual abuse when he or she indulges in
lascivious conduct under the coercion or influence of any
adult.48 This statutory provision must be distinguished from
Acts of Lasciviousness under Articles 336 and 339 of the RPC.
As defined in Article 336 of the RPC, Acts of Lasciviousness has
the following elements:
(1) That the offender commits any act of lasciviousness or
lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived or reason or otherwise
unconscious; or
c. When the offended party os under 12 years of age; and
That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness
committed with the consent of the offended party done by
the same persons and under the same circumstances
mentioned in Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under
eighteen years of age by any person in public authority, priest,
home-servant, domestic, guardian, teacher, or any person
who, in any capacity, shall be entrusted with the education or
custody of the woman; or
2. if committed by means of deceit against a woman who is
single or a widow of good reputation, over twelve but under
eighteen years of age.
Therefore, if the victim of the lascivious acts or conduct is over
12 years of age and under eighteen (18) years of age shall be
liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC,
where the victim is a virgin and consents to the lascivious acts
through abuse of confidence or when the victim is single or
a widow of good reputation and consents to the lascivious
acts through deceit, or;
2. Acts of lasciviousness is not covered by lascivious conduct
as defined in R.A. No. 7610. In case the acts of lasciviousness is
covered by lascivious conduct under R.A. No. 7610 and it is
done through coercion or influence, which established
absences or lack of consent, the Art.336 of the RPC is no
longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no
consent on the part of the victim to the lascivious conduct,
which was done through the employment of coercion or
influence. The offender may likewise be liable for sexual abuse
under R.A. No. 7610 if the victim is at least eighteen (18) years
and she is unable to fully take care of herself or protect herself
from abuse, neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of
the penis into another person's mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another
person if the victim did not consent either it was done through
force, threat or intimidation; or when the victim is deprived of
reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a
form of rape. However, in instances where the lascivious
conduct is covered by the definition under R.A. No 7610,
where the penalty is reclusion temporal medium, and the act
is likewise covered by sexual assault under Article 266-A,
paragraph 2 of the RPC, which is punishable by prision mayor,
the offender should be liable for violation of Section 5(b),
Article III of R.A. No. 7610, where the law provides for the
higher penalty of reclusion temporal medium, if the offended
party is a child victim. But if the victim is at least eighteen (18)
years of age, the offender should be liable under Art. 266-A,
par. 2 of the RPC and not R.A. No. 7610, unless the victim is at
least eighteen (18) years and she is unable to fully take care of
herself or protect herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental
disability or condition, in which case, the offender may still be
held liable for sexual abuse under R.A. No. 7610.
There could be no other conclusion, a child is presumed by law
to be incapable of giving rational consent to any lascivious act,
taking into account the constitutionally enshrined State policy
to promote the physical, moral, spiritual, intellectual and
social well-being of the youth, as well as, in harmony with the
foremost consideration of the child’s best interests in all
actions concerning him or her.51 This is equally consistent with
the with the declared policy of the State to provide special
protection to children from all forms of abuse, neglect,
cruelty, exploitation and discrimination, and other conditions
prejudicial to their development; provide sanctions for their
commission and carry out a program for prevention and
deterrence of and crisis intervention in situations of child
abuse, exploitation, and discrimination.52 Besides, if it was the
intention of the framers of the law to make child offenders
liable only of Article 266-A of the RPC, which provides for a
lower penalty than R.A. No. 7610, the law could have
expressly made such statements.
As correctly found by the trial court, all the elements of sexual
abuse under Section 5(b), Article III of R.A. No. 7610 are
present in the case at bar.1âwphi1
First, petitioner’s lewd advances of touching the breasts and
vagina of his hapless victim constitute lascivious conduct as
defined in Section 32, Article XIII of the Implementing Rules
and Regulations (IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks, or
the introduction of any object into the genitalia, anus or
mouth, of any person, whether of the same or opposite sex,
with an intent to abuse, humiliate, harass, degrade, or arouse
or gratify the sexual desire of any person, bestiality,
masturbation, lascivious exhibition of the genitals or pubic
area of a person.53
Second, petitioner clearly has moral ascendancy over the
minor victim not just because of his relative seniority but more
importantly due to the presumed presence of mutual trust
and confidence between them by virtue of an existing
employment relationship, AAA being a domestic helper in
petitioner’s household. Notably, a child is considered as
sexually abused under Section 5(b) of R.A. No. 7610 when he
or she is subjected to lascivious conduct under the coercion or
influence of any adult. Intimidation need not necessarily be
irresistible. It is sufficient that some compulsion equivalent to
intimidation annuls or subdues the free exercise of the will of
the offended party.54 The law does not require physical
violence on the person of the victim; moral coercion or
ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610
provides that when a child indulges in sexual intercourse or
any lascivious conduct due to the coercion or influence of
any adult, the child is deemed to be a "child exploited in
prostitution and other sexual abuse." In this manner, the law
is able to act as an effective deterrent to quell all forms of
abuse, neglect, cruelty, exploitation and discrimination against
children, prejudicial as they are to their development.
In this relation, case law further clarifies that sexual
intercourse or lascivious conduct under the coercion or
influence of any adult exists when there is some form of
compulsion equivalent to intimidation which subdues the
free exercise of the offended party’s free will. Corollary
thereto, Section 2(g) of the Rules on Child Abuse Cases
conveys that sexual abuse involves the element of influence
which manifests in a variety of forms. It is defined as:
The employment, use, persuasion, inducement, enticement or
coercion of a child to engage in, or assist another person to
engage in, sexual intercourse or lascivious conduct or the
molestation, prostitution, or incest with children.
To note, the term "influence" means the "improper use of
power or trust in any way that deprives a person of free will
and substitutes another’s objective." Meanwhile, "coercion" is
the "improper use of x x x power to compel another to submit
to the wishes of one who wields it."57
Finally, the victim is 16 years of age at the time of the
commission of the offense. Under Section 3 (a) of R.A. No.
7610, "children" refers to "persons below eighteen (18) years
of age or those over but unable to fully take care of
themselves or protect themselves from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
mental disability or condition."
The decision of the trial court finding the petitioner guilty of
Violation of Section 5(b), Article III R.A. No. 7610 should have
been upheld by the CA instead of erroneously adopting the
recommendation of the OSG, which inaccurately relied
on People v. Abello.58 In said case, the decisive factor for the
acquittal of the accused was not the absence of coercion or
intimidation on the offended party, who was then sleeping at
the time the lascivious act was committed, but the fact that
the victim could not be considered as a "child" under R.A. No.
7610. This Court held that while the twenty-one year old
woman has polio as a physical disability that rendered her
incapable of normal function, the prosecution did not present
any testimonial or documentary evidence - any medical
evaluation or finding from a qualified physician, psychologist
or psychiatrist - attesting that the physical condition rendered
her incapable of fully taking care of herself or of protecting
herself against sexual abuse.
Thus, it is clear that petitioner could not have been entitled to
apply for probation in the first place. Regrettably, since neither
the accused nor the OSG questioned the CA Decision, it has
attained finality and to correct the error at this stage is already
barred by the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be
denied the benefit of the Probation Law and that the Court
should adopt the recommendations above-stated in situations
where an accused files an appeal for the sole purpose of
correcting the penalty imposed to qualify him for probation or
where he files an appeal specifically claiming that he should be
found guilty of a lesser offense necessarily included with the
crime originally filed with a prescribed penalty which is
probationable.
SO ORDERED.
G.R. No. 182748               December 13, 2011
 ARNEL COLINARES, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
ABAD, J.:
This case is about a) the need, when invoking self-defense, to
prove all that it takes; b) what distinguishes frustrated
homicide from attempted homicide; and c) when an accused
who appeals may still apply for probation on remand of the
case to the trial court.
The Facts and the Case
The public prosecutor of Camarines Sur charged the accused
Arnel Colinares (Arnel) with frustrated homicide before the
Regional Trial Court (RTC) of San Jose, Camarines Sur, in
Criminal Case T-2213.1
Complainant Rufino P. Buena (Rufino) testified that at around
7:00 in the evening on June 25, 2000, he and Jesus Paulite
(Jesus) went out to buy cigarettes at a nearby store. On their
way, Jesus took a leak by the roadside with Rufino waiting
nearby. From nowhere, Arnel sneaked behind and struck
Rufino twice on the head with a huge stone, about 15 ½ inches
in diameter. Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home
when he saw Rufino lying by the roadside. Ananias tried to
help but someone struck him with something hard on the
right temple, knocking him out. He later learned that Arnel
had hit him.
Paciano Alano (Paciano) testified that he saw the whole
incident since he happened to be smoking outside his house.
He sought the help of a barangay tanod and they brought
Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate 2 showing
that Rufino suffered two lacerated wounds on the forehead,
along the hairline area. The doctor testified that these injuries
were serious and potentially fatal but Rufino chose to go
home after initial treatment.
The defense presented Arnel and Diomedes Paulite
(Diomedes). Arnel claimed self-defense. He testified that he
was on his way home that evening when he met Rufino, Jesus,
and Ananias who were all quite drunk. Arnel asked Rufino
where he supposed the Mayor of Tigaon was but, rather than
reply, Rufino pushed him, causing his fall. Jesus and Ananias
then boxed Arnel several times on the back. Rufino tried to
stab Arnel but missed. The latter picked up a stone and,
defending himself, struck Rufino on the head with it. When
Ananias saw this, he charged towards Arnel and tried to stab
him with a gaff. Arnel was able to avoid the attack and hit
Ananias with the same stone. Arnel then fled and hid in his
sister’s house. On September 4, 2000, he voluntarily
surrendered at the Tigaon Municipal Police Station.
Diomedes testified that he, Rufino, Jesus, and Ananias
attended a pre-wedding party on the night of the incident. His
three companions were all drunk. On his way home, Diomedes
saw the three engaged in heated argument with Arnel.
On July 1, 2005 the RTC rendered judgment, finding Arnel
guilty beyond reasonable doubt of frustrated homicide and
sentenced him to suffer imprisonment from two years and
four months of prision correccional, as minimum, to six years
and one day of prision mayor, as maximum. Since the
maximum probationable imprisonment under the law was
only up to six years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-
defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction
of the penalty imposed on him. The CA entirely affirmed the
RTC decision but deleted the award for lost income in the
absence of evidence to support it.3 Not satisfied, Arnel comes
to this Court on petition for review.
In the course of its deliberation on the case, the Court
required Arnel and the Solicitor General to submit their
respective positions on whether or not, assuming Arnel
committed only the lesser crime of attempted homicide with
its imposable penalty of imprisonment of four months of
arresto mayor, as minimum, to two years and four months of
prision correccional, as maximum, he could still apply for
probation upon remand of the case to the trial court.
Both complied with Arnel taking the position that he should be
entitled to apply for probation in case the Court metes out a
new penalty on him that makes his offense probationable. The
language and spirit of the probation law warrants such a
stand. The Solicitor General, on the other hand, argues that
under the Probation Law no application for probation can be
entertained once the accused has perfected his appeal from
the judgment of conviction.
The Issues Presented
The case essentially presents three issues:
1. Whether or not Arnel acted in self-defense when he
struck Rufino on the head with a stone;
2. Assuming he did not act in self-defense, whether or
not Arnel is guilty of frustrated homicide; and
3. Given a finding that Arnel is entitled to conviction for
a lower offense and a reduced probationable penalty,
whether or not he may still apply for probation on
remand of the case to the trial court.
The Court’s Rulings
One. Arnel claims that Rufino, Jesus, and Ananias attacked him
first and that he merely acted in self-defense when he hit
Rufino back with a stone.
When the accused invokes self-defense, he bears the burden
of showing that he was legally justified in killing the victim or
inflicting injury to him. The accused must establish the
elements of self-defense by clear and convincing evidence.
When successful, the otherwise felonious deed would be
excused, mainly predicated on the lack of criminal intent of
the accused.4
In homicide, whether consummated, frustrated, or attempted,
self-defense requires (1) that the person whom the offender
killed or injured committed unlawful aggression; (2) that the
offender employed means that is reasonably necessary to
prevent or repel the unlawful aggression; and (3) that the
person defending himself did not act with sufficient
provocation.5
If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the
other two requisites of self-defense would have no basis for
being appreciated. Unlawful aggression contemplates an
actual, sudden, and unexpected attack or an imminent danger
of such attack. A mere threatening or intimidating attitude is
not enough. The victim must attack the accused with actual
physical force or with a weapon.6
Here, the lower courts found that Arnel failed to prove the
element of unlawful aggression. He alone testified that Jesus
and Ananias rained fist blows on him and that Rufino and
Ananias tried to stab him. No one corroborated Arnel’s
testimony that it was Rufino who started it. Arnel’s only other
witness, Diomedes, merely testified that he saw those
involved having a heated argument in the middle of the street.
Arnel did not submit any medical certificate to prove his point
that he suffered injuries in the hands of Rufino and his
companions.7
In contrast, the three witnesses—Jesus, Paciano, and Ananias
—testified that Arnel was the aggressor. Although their
versions were mottled with inconsistencies, these do not
detract from their core story. The witnesses were one in what
Arnel did and when and how he did it. Compared to Arnel’s
testimony, the prosecution’s version is more believable and
consistent with reality, hence deserving credence.8
Two. But given that Arnel, the accused, was indeed the
aggressor, would he be liable for frustrated homicide when
the wounds he inflicted on Rufino, his victim, were not fatal
and could not have resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the
accused’s intent to take his victim’s life. The prosecution has
to prove this clearly and convincingly to exclude every possible
doubt regarding homicidal intent.9 And the intent to kill is
often inferred from, among other things, the means the
offender used and the nature, location, and number of
wounds he inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The
blow was so forceful that it knocked Rufino out. Considering
the great size of his weapon, the impact it produced, and the
location of the wounds that Arnel inflicted on his victim, the
Court is convinced that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v.
People,11 we ruled that when the accused intended to kill his
victim, as shown by his use of a deadly weapon and the
wounds he inflicted, but the victim did not die because of
timely medical assistance, the crime is frustrated murder or
frustrated homicide. If the victim’s wounds are not fatal, the
crime is only attempted murder or attempted homicide.
Thus, the prosecution must establish with certainty the
nature, extent, depth, and severity of the victim’s wounds.
While Dr. Belleza testified that "head injuries are always very
serious,"12 he could not categorically say that Rufino’s wounds
in this case were "fatal." Thus:
Q: Doctor, all the injuries in the head are fatal?
A: No, all traumatic injuries are potentially treated.
Q: But in the case of the victim when you treated him the
wounds actually are not fatal on that very day?
A: I could not say, with the treatment we did, prevent from
becoming fatal. But on that case the patient preferred to go
home at that time.
Q: The findings also indicated in the medical certificate only
refers to the length of the wound not the depth of the
wound?
A: When you say lacerated wound, the entire length of the
layer of scalp.
Q: So you could not find out any abrasion?
A: It is different laceration and abrasion so once the skin is
broken up the label of the frontal lo[b]e, we always call it
lacerated wound, but in that kind of wound, we did not
measure the depth.13
Indeed, Rufino had two lacerations on his forehead but there
was no indication that his skull incurred fracture or that he
bled internally as a result of the pounding of his head. The
wounds were not so deep, they merely required suturing, and
were estimated to heal in seven or eight days. Dr. Belleza
further testified:
Q: So, in the medical certificate the wounds will not require
surgery?
A: Yes, Madam.
Q: The injuries are slight?
A: 7 to 8 days long, what we are looking is not much, we give
antibiotics and antit[e]tanus – the problem the contusion
that occurred in the brain.
xxxx
Q: What medical intervention that you undertake?
A: We give antibiotics, Your Honor, antit[e]tanus and
suturing the wounds.
Q: For how many days did he stay in the hospital?
A: Head injury at least be observed within 24 hours, but
some of them would rather go home and then come back.
Q: So the patient did not stay 24 hours in the hospital?
A: No, Your Honor.
Q: Did he come back to you after 24 hours?
A: I am not sure when he came back for follow-up.14
Taken in its entirety, there is a dearth of medical evidence on
record to support the prosecution’s claim that Rufino would
have died without timely medical intervention. Thus, the
Court finds Arnel liable only for attempted homicide and
entitled to the mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply
for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the
penalty imposed on him should be lowered to imprisonment
of four months of arresto mayor, as minimum, to two years
and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to
apply for probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a
mere privilege granted by the state only to qualified convicted
offenders. Section 4 of the probation law (PD 968) provides:
"That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the
judgment of conviction."15 Since Arnel appealed his conviction
for frustrated homicide, he should be deemed permanently
disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege,
the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for
that privilege. The Court finds that his maximum jail term
should only be 2 years and 4 months. If the Court allows him
to apply for probation because of the lowered penalty, it is still
up to the trial judge to decide whether or not to grant him the
privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the accused
who appeals "from the judgment of conviction" is disqualified
from availing himself of the benefits of probation. But, as it
happens, two judgments of conviction have been meted out
to Arnel: one, a conviction for frustrated homicide by the
regional trial court, now set aside; and, two, a conviction for
attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard
position, it will apply the probation law on Arnel based on the
trial court’s annulled judgment against him. He will not be
entitled to probation because of the severe penalty that such
judgment imposed on him. More, the Supreme Court’s
judgment of conviction for a lesser offense and a lighter
penalty will also have to bend over to the trial court’s
judgment—even if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial court’s
erroneous judgment with the forfeiture of his right to apply
for probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw (the horse errs, the carabao gets the whip). Where is
justice there?
The dissenting opinion also expresses apprehension that
allowing Arnel to apply for probation would dilute the ruling of
this Court in Francisco v. Court of Appeals 16 that the probation
law requires that an accused must not have appealed his
conviction before he can avail himself of probation. But there
is a huge difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati
found the accused guilty of grave oral defamation and
sentenced him to a prison term of one year and one day to
one year and eight months of prision correccional, a clearly
probationable penalty. Probation was his to ask! Still, he chose
to appeal, seeking an acquittal, hence clearly waiving his right
to apply for probation. When the acquittal did not come, he
wanted probation. The Court would not of course let him. It
served him right that he wanted to save his cake and eat it
too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that
an accused must not have appealed his conviction before he
can avail himself of probation. This requirement "outlaws the
element of speculation on the part of the accused—to wager
on the result of his appeal—that when his conviction is finally
affirmed on appeal, the moment of truth well-nigh at hand,
and the service of his sentence inevitable, he now applies for
probation as an ‘escape hatch’ thus rendering nugatory the
appellate court’s affirmance of his conviction."17
Here, however, Arnel did not appeal from a judgment that
would have allowed him to apply for probation. He did not
have a choice between appeal and probation. He was not in a
position to say, "By taking this appeal, I choose not to apply
for probation." The stiff penalty that the trial court imposed
on him denied him that choice. Thus, a ruling that would allow
Arnel to now seek probation under this Court’s greatly
diminished penalty will not dilute the sound ruling in
Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of
correctness of the penalty imposed on him. He claimed that
the evidence at best warranted his conviction only for
attempted, not frustrated, homicide, which crime called for a
probationable penalty. In a way, therefore, Arnel sought from
the beginning to bring down the penalty to the level where
the law would allow him to apply for probation.
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an
original conviction that for the first time imposes on him a
probationable penalty. Had the RTC done him right from the
start, it would have found him guilty of the correct offense and
imposed on him the right penalty of two years and four
months maximum.lavvphil This would have afforded Arnel the
right to apply for probation.
The Probation Law never intended to deny an accused his
right to probation through no fault of his. The underlying
philosophy of probation is one of liberality towards the
accused. Such philosophy is not served by a harsh and
stringent interpretation of the statutory provisions. 18 As
Justice Vicente V. Mendoza said in his dissent in Francisco, the
Probation Law must not be regarded as a mere privilege to be
given to the accused only where it clearly appears he comes
within its letter; to do so would be to disregard the teaching in
many cases that the Probation Law should be applied in favor
of the accused not because it is a criminal law but to achieve
its beneficent purpose.19
One of those who dissent from this decision points out that
allowing Arnel to apply for probation after he appealed from
the trial court’s judgment of conviction would not be
consistent with the provision of Section 2 that the probation
law should be interpreted to "provide an opportunity for the
reformation of a penitent offender." An accused like Arnel
who appeals from a judgment convicting him, it is claimed,
shows no penitence.
This may be true if the trial court meted out to Arnel a correct
judgment of conviction. Here, however, it convicted Arnel of
the wrong crime, frustrated homicide, that carried a penalty in
excess of 6 years. How can the Court expect him to feel
penitent over a crime, which as the Court now finds, he did
not commit? He only committed attempted homicide with its
maximum penalty of 2 years and 4 months.
Ironically, if the Court denies Arnel the right to apply for
probation under the reduced penalty, it would be sending him
straight behind bars. It would be robbing him of the chance to
instead undergo reformation as a penitent offender, defeating
the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was
right and imposed on Arnel the correct penalty of two years
and four months maximum, he would have had the right to
apply for probation. No one could say with certainty that he
would have availed himself of the right had the RTC done right
by him. The idea may not even have crossed his mind precisely
since the penalty he got was not probationable.
The question in this case is ultimately one of fairness. Is it fair
to deny Arnel the right to apply for probation when the new
penalty that the Court imposes on him is, unlike the one
erroneously imposed by the trial court, subject to probation?
WHEREFORE, the Court PARTIALLY GRANTS the petition,
MODIFIES the Decision dated July 31, 2007 of the Court of
Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares
GUILTY beyond reasonable doubt of attempted homicide, and
SENTENCES him to suffer an indeterminate penalty from four
months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum, and to pay
Rufino P. Buena the amount of ₱20,000.00 as moral damages,
without prejudice to petitioner applying for probation within
15 days from notice that the record of the case has been
remanded for execution to the Regional Trial Court of San
Jose, Camarines Sur, in Criminal Case T-2213.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
 G. R. No. 152044 - July 3, 2003
DOMINGO LAGROSA and OSIAS BAGUIN, petitioners, vs. THE
PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, respondents.
YNARES-SANTIAGO, J.:
This is a petition for review of the decision of the Court of
Appeals in CA-G.R. No. 67308,1 which affirmed the Resolution
of the Regional Trial Court of Tagbilaran City, Branch 2,
denying petitioners Application for Probation, and its Order
denying petitioners Motion for Reconsideration.2
The undisputed facts are as follows.
On October 29, 1996, the Regional Trial Court of Tagbilaran
City, Branch 2, rendered a decision in Criminal Case No.
8243,3 finding petitioners Domingo Lagrosa and Osias Baguin
guilty of violation of Section 68 of P.D. 705, as amended (The
Revised Forestry Code), for having in their possession forest
products without the requisite permits. The trial court
sentenced them to suffer the indeterminate penalty of
imprisonment from two (2) years, four (4) months and one (1)
day of prision correccional, as minimum, to eight (8) years of
prision mayor, as maximum. Petitioners Motion for
Reconsideration of the decision4 was denied by the trial court
on November 21, 1996.5
Petitioners appealed their conviction to the Court of Appeals,
where it was docketed as CA-G.R. CR No. 20632. 6 On March
14, 2000, the appellate court affirmed the conviction of the
petitioners, with the modification as to the penalty imposed,
which was reduced to an indeterminate penalty ranging from
six (6) months and one (1) day of prision correccional, as
minimum, to one (1) year, eight (8) months and twenty one
(21) days of prision correccional, as maximum. 7 The decision
became final and executory on April 12, 2000.
On August 29, 2001, petitioners filed an Application for
Probation with the trial court,8 which, as mentioned at the
outset, was denied. Petitioners motion for reconsideration
was likewise denied by the trial court. Hence, petitioners filed
a petition for certiorari with the Court of Appeals, which was
docketed as CA-G.R. SP No. 67308. 9 On January 11, 2002, the
Court of Appeals rendered the assailed decision affirming the
questioned resolutions of the trial court.
Hence this petition, raising the following arguments:
1) That Section 4 of Presidential Decree No. 968, as amended
by PD No. 1990, is very absurd and illogical considering that
petitioners were not given the opportunity to apply for
probation when they were convicted by the Regional Trial
Court of Bohol, Branch 2, because the penalty imposed by said
court is more than six (6) years and therefore non-
probationable.
That the first opportunity for herein petitioners to apply for
probation was when the Court of Appeals modified the
sentence imposed by the Regional Trial Court of Bohol, Branch
2, from two (2) years, four (4) months and one (1) day of
prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, to six (6) months and one (1) day to one
(1) year, eight (8) months and twenty one (21) days as
maximum which is clearly probationable.
2) That the ruling of this Honorable Supreme Court in the case
of Pablo Francisco versus Court of Appeals, et al., G.R. No.
108747, is not applicable to the instant case because in the
said Francisco case the accused therein can apply for
probation because the penalty imposed by the lower court
was already probationable but the accused instead appealed
the decision but in the case of herein petitioners they cannot
apply for probation when they were convicted because the
penalty imposed by the lower court was more than six (6)
years and therefore non-probationable.
3) That the decision of the Court of Appeals herein sought to
be reviewed is clearly contrary to the purpose of the Probation
Law.10
The law that is at the heart of this controversy is Presidential
Decree No. 968, also known as the Probation Law, as
amended by P.D. 1990, the pertinent provision of which reads:
SEC. 4. Grant of Probation. Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction. (underscoring ours)
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable.
Under Section 9 (a) of the Probation Law, offenders who are
sentenced to serve a maximum term of imprisonment of more
than six years are disqualified from seeking probation.
It should be noted that before P.D. 968 was amended by P.D.
1990, the accused was allowed to apply for probation even
after he had already filed an appeal, as long as he had not yet
begun to serve his sentence.11
Petitioners contend that they should be allowed to apply for
probation even if they had already appealed the decision of
the trial court. They argue that their case should be
considered an exception to the general rule which excludes an
accused who has appealed his conviction from the benefits of
probation. In the case at bar, the trial court sentenced
petitioners to a maximum term of eight years, which was
beyond the coverage of the Probation Law. They only became
eligible for probation after the Court of Appeals modified the
judgment of the trial court and reduced the maximum term of
the penalty imposed on them to one year, eight months and
twenty-one days.12 They submit that the ruling in the case of
Francisco v. CA13 is not applicable because in that case, the
accused appealed their conviction notwithstanding the fact
that the maximum term of the prison sentence imposed on
them by the trial court was less than six years.14
In its Comment, the Office of the Solicitor General reiterates
the express provision of P.D. 968 prohibiting the grant of
probation to those who have appealed their convictions.15 It
argues that, even if the petitioners have appealed for the
purpose of reducing an incorrect penalty, this fact does not
serve to remove them from the prohibition in Section 4 of P.D.
968 for the law makes no such distinction.16
There is no question that petitioners appealed from the
decision of the trial court. This fact alone merits the denial of
petitioners Application for Probation. Having appealed from
the judgment of the trial court and having applied for
probation only after the Court of Appeals had affirmed their
conviction, petitioners were clearly precluded from the
benefits of probation.17
However, petitioners now ask us not to apply the letter of the
law, claiming that their situation should be considered an
exception to the rule. Their petition is without merit.
Petitioners repeatedly assert that their application for
probation was made at the "first opportunity," undoubtedly
invoking the fourth "whereas" clause of P.D. 1990, which
reads:
WHEREAS, probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated; x x
x.
To bolster this assertion, petitioners claim that what prompted
them to appeal the decision of the trial court was the
erroneous penalty imposed by the trial court.18
Petitioners are not being very candid. In their appellants brief
filed in CA-G.R. CR No. 20632, they raised the following
assignment of errors:
I
THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED
GUILTY OF THE OFFENSE CHARGED BECAUSE THE EVIDENCE
AGAINST THEM LACKS MORAL CERTAINTY.
II.
IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN
IMPOSING THE PROPER PENALTY AS PROVIDED BY LAW.
The fact that petitioners put the merits of their conviction in
issue on appeal belies their claim that their appeal was
prompted by what was admittedly an incorrect penalty.
Certainly, the protestations of petitioners connote a
profession of guiltlessness, if not complete innocence, and do
not simply assail the propriety of the penalties imposed. For
sure, petitioners never manifested that they were appealing
only for the purpose of correcting a wrong penalty to reduce it
to within probationable range. Hence, upon interposing an
appeal, more so after asserting their innocence therein,
petitioners should be precluded from seeking probation. By
perfecting their appeal, petitioners ipso facto relinquished the
alternative remedy of availing of the Probation Law, the
purpose of which is simply to prevent speculation or
opportunism on the part of an accused who, although already
eligible, does not at once apply for probation, but did so only
after failing in his appeal.19
Although it has been suggested that an appeal should not bar
the accused from applying for probation if the appeal is solely
to reduce the penalty to within the probationable limit may be
equitable,20 we are not yet prepared to accept this
proposition, specially given the factual circumstances of this
case. Had the petitioners appeal from the decision of the trial
court raised the impropriety of the penalty imposed upon
them as the sole issue, perhaps this Court would have been
more sympathetic to their plight. Unfortunately, their
misrepresentation has led to their own undoing.
WHEREFORE, in view of the foregoing, the petition is DENIED.
The Decision of the Court of Appeals dated January 11, 2002 in
CA-G.R. No. 67308, which affirmed the Resolution of the
Regional Trial Court of Tagbilaran City, Branch 2, denying
petitioners Application for Probation, and its Order denying
petitioners Motion for Reconsideration, is AFFIRMED. Costs
against the petitioners.
SO ORDERED.
Davide, Jr., C.J., Carpio, and Azcuna, JJ., concur.
Vitug, J., I reiterate my separate (dissenting) opinion in
Francisco vs. CA (243 SCRA 384, 399).
FIRST DIVISION
G.R. No. 138203 - July 3, 2002
LILIA J. VICOY, Petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
YNARES-SANTIAGO, J.:
This is a petition under Rule 45 on pure question of law
assailing the February 9, 19981 and February 25, 19982 Orders
of the Regional Trial Court of Bohol, Branch 3, in SP. Civil Case
No. 5881, dismissing petitioner's special civil action for
certiorari.
The present controversy stemmed from a judgment of
conviction promulgated on August 24, 1995 by the Municipal
Trial Court in Cities (MTCC) of Tagbilaran, Branch 2, in Criminal
Case Nos. 5265 and 5307. The dispositive portion thereof
reads:
WHEREFORE, Judgment is hereby rendered as follows:
1. In Criminal Case No. 5265, the Court finds and so holds the
herein accused Lilia Vicoy y Jumagdao GUILTY beyond
reasonable doubt for violation of City Ordinance No. 365-B for
peddling fish outside the Agora Public Market, and accordingly
sentences her to suffer the penalty of a fine of Fifty Pesos
(P50.00) with subsidiary imprisonment in case of insolvency
and to pay the costs;
2. In Criminal Case No. 5307, the Court finds and so holds the
herein accused Lilia Vicoy y Jumagdao GUILTY beyond
reasonable doubt of the crime of Resistance and Serious
Disobedience To Agents Of A Person In Authority, and
accordingly sentences her to suffer the penalty of three (3)
months of arresto mayor and to pay a fine of two Hundred
Pesos (P200.00) without subsidiary imprisonment in case of
insolvency and to pay the costs.
SO ORDERED.3
On the same date, August 24, 1995, petitioner filed an
application for probation.4 On September 18, 1995, however,
petitioner filed a motion to withdraw her application for
probation and simultaneously filed a notice of appeal.5
In an Omnibus Order6 dated September 22, 1995, the MTCC of
Tagbilaran granted petitioner's withdrawal of her application
for probation but denied her notice of appeal for having been
filed out of time. Petitioner filed a motion for reconsideration
of the denial of her appeal, however, the same was denied.
Hence, petitioner filed a special civil action for certiorari with
the Regional Trial Court of Bohol, Branch 3, contending that
the MTCC of Tagbilaran gravely abused its discretion in
denying her the right to appeal. Named respondents therein
were the Presiding Judge of MTCC of Tagbilaran, Branch 2, and
the People of the Philippines, represented by the Philippine
National Police of Tagbilaran City. The parties were ordered by
the court to submit their memorandum within 10 days, after
which, the case was submitted for judgment on the pleadings. 7
Realizing that the People should be represented by the City
Prosecutor's Office, the court issued an Order dated August 2,
1996, requiring the latter to enter its appearance. In the same
order, petitioner was directed to furnish the City Prosecutor's
Office with a copy of her memorandum and of the assailed
judgment, thus:
From the reading of the petition that gave rise to this case,
and of the memorandum of the petitioner, it is the considered
opinion of this Court, and so holds, that the City Prosecutor of
Tagbilaran be required to enter his appearance for the State in
the light of the failure of respondent Judge Emma Enrico-
Supremo to submit her reply to comment to the petition.
Besides, the Court noticed that the People of the Philippines
has been impleaded as one of the respondents.
PREMISES CONSIDERED, Atty. Dionisio A. Galido, counsel for
the petitioner, is hereby directed to furnish the Office of the
City Prosecutor of Tagbilaran copies of the questioned
judgment and their memorandum, and for the City Prosecutor
to submit within ten (10) days from receipt thereof, his
memorandum or any pleading on the matter.8
On February 9, 1998,9 the Regional Trial Court rendered the
assailed Order dismissing petitioner's special civil action for
certiorari for failure to comply with the aforequoted August 2,
1996 Order. A motion for reconsideration of the said order of
dismissal was denied on February 25, 1999.10
Hence, the instant petition. The sole issue raised in this
petition is whether or not the petition for certiorari was validly
dismissed by the Regional Trial Court on the ground of
petitioner's failure to comply with its Order dated August 2,
1996.
Section 3, Rule 17, of the Rules of Court, provides:
Section 3. Dismissal due to fault of plaintiff. - If, for no
justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to
prosecute his action for an unreasonable length of time, or
to comply with these Rules or any order of the court, the
complaint may be dismissed upon motion of the defendant or
upon the court's own motion, without prejudice to the right of
the defendant to prosecute his counterclaim in the same or in
a separate action. This dismissal shall have the effect of an
adjudication on the merits, unless otherwise declared by the
court. (Emphasis supplied)
In the case at bar, the trial court categorically directed
petitioner, in its August 2, 1996 Order, to furnish the City
Prosecutor's Office with a copy of her memorandum and of
the assailed judgment. Petitioner's counsel did not comply,
prompting the court to dismiss the petition for certiorari on
February 9, 1998. The fact that the City Prosecutor's Office has
not yet entered its appearance is no justification to
petitioner's adamant and continued insistence not to comply
with a lawful order of the court. Every court has the power to
enforce and compel obedience to its orders, judgments, and
processes in all proceedings pending before it. 11 The Regional
Trial Court's dismissal of petitioner's special civil action,
therefore, was but a valid exercise of said power.
Moreover, even assuming that the Regional Trial Court did not
order the said dismissal, petitioner's special civil action,
questioning the denial of her notice of appeal, would still fail.
Note that petitioner filed an application for probation. Section
7, Rule 120, of the Rules on Criminal Procedure is explicit that
a judgment in a criminal case becomes final when the accused
has applied for probation. This is totally in accord with Section
4 of Presidential Decree No. 968 (Probation Law of 1976, as
amended), which in part provides that the filing of an
application for probation is deemed a waiver of the right to
appeal.12 Thus, there was no more opportunity for petitioner
to exercise her right to appeal, the judgment having become
final by the filing of an application for probation.
WHEREFORE, in view of all the foregoing, the petition
is DENIED. The assailed February 9, 1998 and February 25,
1999 Orders of the Regional Trial Court of Bohol, Branch 3, in
SP. Civil Case No. 5881 are AFFIRMED.
SO ORDERED.
Davide, Jr., Vitug, Kapunan, and Austria-Martinez, JJ., concur
G.R. No. 108747 April 6, 1995
 PABLO C. FRANCISCO, petitioner,
vs.
COURT OF APPEALS AND THE HONORABLE MAXIMO C.
CONTRERAS, respondents.
BELLOSILLO, J.:
Probation is a special privilege granted by the state to a
penitent qualified offender. It essentially rejects appeals and
encourages an otherwise eligible convict to immediately admit
his liability and save the state of time, effort and expenses to
jettison an appeal. The law expressly requires that an accused
must not have appealed his conviction before he can avail of
probation. This outlaws the element of speculation on the part
of the accused — to wager on the result of his appeal — that
when his conviction is finally affirmed on appeal, the moment
of truth well-nigh at hand, and the service of his sentence
inevitable, he now applies for probation as an "escape hatch"
thus rendering nugatory the appellate court's affirmance of his
conviction. Consequently, probation should be availed of at
the first opportunity by convicts who are willing to be
reformed and rehabilitated, who manifest spontaneity,
contrition and remorse.
As conceptualized, is petitioner entitled to probation within
the purview of P.D. 968, as amended by P.D. 1257 and P.D.
1990?
Petitioner's woes started when as President and General
Manager of ASPAC Trans. Company he failed to control his
outburst and blurted —
You employees in this office are all tanga, son
of a bitches (sic), bullshit. Puro kayo walang
utak . . . . Mga anak ng puta . . . . Magkano ba
kayo . . . God damn you all.
Thus for humiliating his employees he was accused of multiple
grave oral defamation in five (5) separate Informations
instituted by five (5) of his employees, each Information
charging him with gravely maligning them on four different
days, i.e., from 9 to 12 April 1980.
On 2 January 1990, after nearly ten (10) years, the
Metropolitan Trial Court of Makati, Br. 61, found petitioner
guilty of grave oral defamation in four (4) of the five (5) cases
filed against him, i.e., Crim. Cases Nos. 105206, 105207,
105209 and 105210, sentenced him to a prison term of one (1)
year and one (l) day to one (1) year and eight (8) months
of prision correccional "in each crime committed on each date
of each case, as alleqed in the information(s)," ordered him to
indemnify each of the offended parties, Victoria Gatchalian,
Rowena Ruiz, Linda Marie Ayala Pigar and Marie Solis,
P10,000.00 as exemplary damages, and P5,000.00 for
attorney's fees, plus costs of suit.1 He was however acquitted
in Crim. Case No. 105208 for persistent failure of the offended
party, Edgar Colindres, to appear and testify.
Not satisfied with the Decision of the MeTC, and insisting on
his innocence, petitioner elevated his case to the Regional
Trial Court.
On 5 August 1991 the Regional Trial Court of Makati, Br. 59,
affirmed his conviction but appreciated in his favor a
mitigating circumstance analogous to passion or obfuscation.
Thus —
. . . (he) was angry and shouting when he
uttered the defamatory words complained of . .
. . he must have been angry and worried "about
some missing documents . . . as well as the
letter of the Department of Tourism advising
ASPAC about its delinquent tax of P1.2
million . . . . " the said defamatory words must
have been uttered in the heat of anger which is
a mitigating circumstance analogous to passion
or obfuscation.2
Accordingly, petitioner was sentenced "in each case to a
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment . . . .
"3 After he failed to interpose an appeal therefrom the
decision.of the RTC became final. The case was then set for
execution of judgment by the MeTC which, as a consequence,
issued a warrant of arrest. But·before he could be arrested
petitioner filed an application for probation which the MeTC
denied "in the light of the ruling of the Supreme Court
in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989,
174 SCRA 566 . . . ."4
Forthwith he went to the Court of Appeals on certiorari which
on 2 July 1992 dismissed his petition on the following grounds
—
Initially, the Court notes that the petitioner has
failed to comply with the provisions of Supreme
Court Circular No. 28-91 of September 4, 1991.
Violation of the circular is sufficient cause for
dismissal of the petition.
Secondly, the petitioner does not allege
anywhere in the petition that he had asked the
respondent court to reconsider its above order;
in fact, he had failed to give the court
an.opportunity to correct itself if it had, in fact,
committed any error on the matter. He is,
however, required to move for reconsideration
of the questioned order before filing a petition
for certiorari (Sy It v. Tiangco, 4 SCRA 436). This
failure is fatal to his cause. It is a ground for
dismissal of his petition (Santos v. Vda. de
Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14
SCRA 18; Del Pilar Transit, Inc. v. Public Service
Commission, 31-SCRA 372).
Thirdly, it is obvious that respondent court did
not commit any capricious, arbitrary, despotic
or whimsical exercise of power in denying the
petitioner's application for probation . . . .
Fourthly, the petition for probation was filed by
the petitioner out of time . . . .
Fifthly, the Court notes that Section 4 of PD 968 allows the
trial court to grant probation after conviction, upon an
application by the defendant within the period of appeal,
upon terms and conditions and period appropriate to each
case, but expressly rules out probation where an appeal has
been taken . . . . 5
The motion for reconsideration was likewise denied.
In the present recourse, petitioner squirms out of each ground
and seeks this Court's compassion in dispensing with the
minor technicalities which may militate against his petition as
he now argues before us that he has not yet lost his right to
avail of probation notwithstanding his appeal from the MeTC
to the RTC since "[t]he reason for his appeal was precisely to
enable him to avail himself of the benefits of the Probation
Law because the original Decision of the (Metropolitan) Trial
Court was such that he would not then be entitled to
probation." 6 He contends that "he appealed from the
judgment of the trial court precisely for the purpose of
reducing the penalties imposed upon him by the said court to
enable him to qualify for probation." 7
The central issue therefore is whether petitioneris still
qualified to avail of probation even after appealing his
conviction to the RTC which affirmed the MeTC except with
regard to the duration of the penalties imposed.
Petitioner is no longer eligible for probation.
First. Probation is a mere privilege, not a right. 8 Its benefits
cannot extend to those not expressly included. Probation is
not a right of an accused, but rather an act of grace and
clemency or immunity conferred by the state which may be
granted by the court to a seemingly deserving defendant who
thereby escapes the extreme rigors of the penalty imposed by
law for the offense of which he stands convicted. 9 It is a
special prerogative granted by law to a person or group of
persons not enjoyed by others or by all. Accordingly, the grant
of probation rests solely upon the discretion of the court
which is to be exercised primarily for the benefit of organized
society, and only incidentally for the benefit of the
accused.10 The Probation Law should not therefore be
permitted to divest the state or its government of any of the
latter's prerogatives, rights or remedies, unless the intention
of the legislature to this end is clearly expressed, and no
person should benefit from the terms of the law who is not
clearly within them.
Neither Sec. 4 of the Probation Law, as amended, which
clearly mandates that "no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction," nor Llamado v.
Court of Appeals 11 which interprets the quoted provision,
offers any ambiguity or qualification. As such, the application
of the law should not be subjected to any to suit the case of
petitioner. While the proposition that an appeal should not
bar the accused from applying for probation if the appealis
solely to reduce the penalty to within the probationable limit
may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence.
Accordingly, we quote Mr. Justice Feliciano speaking for the
Court en banc in Llamado v. Court of Appeals—
. . . we note at the outset that Probation Law is
not a penal statute. We, however, understand
petitioner's argument to be really that any
statutory language that appears to favor the
accused in acriminal case should be given.a
"liberal interpretation." Courts . . . have no
authority to invoke "liberal interpretation" or
"the spirit of the law" where the words of the
statute themselves, and·as illuminated by the
history of that statute, leave no room for doubt
or interpretation. We do not believe that "the
spirit of·the law" may legitimately be invoked to
set at naught words which have a clear and
definite meaning imparted to them by our
procedural law. The "true legislative intent"
must obviously be given effect by judges and all
others who are charged with the application
and implementation of a statute. It is absolutely
essential to bear in mind, however, that the
spirit of the law and the intent that is to be
given effect are derived from the words actually
used by the law-maker, and not from some
external, mystical or metajuridical source
independent of and transcending the words of
the legislature.
The Court is not here to be understood as
giving a "strict interpretation" rather than a
"liberal" one to Section 4 of the Probation Law
of 1976 as amended by P.D. No. 1990. "Strict"
and "liberal" are adjectives which too
frequently impede a disciplined and principled
search for the meaning which the law-making
authority projected when it promulgated the
language which we must apply. That meaning is
clearly visible in the text of Section 4, as plain
and unmistakable as the nose on a man's face.
The Courtis simply·reading Section 4 as it is in
fact written. There is no need for the involved
process of construction that petitioner invites
us to engage in, a process made necessary only
because petitioner rejects the conclusion or
meaning which shines through the words of the
statute. The first duty of the judge is to take
and apply a statute as he finds it, not as he
would like·it to be. Otherwise, as this Court
in Yangco v. Court of First Instance warned,
confusion and uncertainty will surely follow,
making, we might add, stability and continuity
in the law much more difficult to achieve:
. . . [w]here language is plain,
subtle refinements which tinge
words as to give them the color
of a particular judicial theory are
not only unnecessary but
decidedly harmful. That which
has caused so much confusion in
the law, which has made it so
difficult for the public to
understand and know what the
law is with respect to a given
 matter, is in considerable
measure the unwarranted
interference by judicial tribunals
with the English language as
found in statutes and contracts,
cutting the words here and
inserting them there, making
them fit personal ideas of what
the legislature ought to have
done or what parties should
have agreed upon, giving them
meanings which they do not
ordinarily have cutting,
trimming, fitting, changing and
coloring until lawyers themselves
are unable to advise their clients
as to the meaning of a given
statute or contract until it has
been submitted to some court
for its interpretation and
construction.
The point in this warning may be expected to
become sharper as our people's grasp of
English is steadily attenuated. 12
Therefore, that an appeal should not·bar the accused from
applying for probation if the appeal is taken solely to reduce
the penalty is simply contrary to the clear and express
mandate of Sec, 4 of the Probation Law, as amended, which
opens with a negativeclause, "no application for probation
shall be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction." In Bersabal v.
Salvador, 13 we said —
By its very language, the Rule is mandatory.
Under the rule of statutory construction.
negative words and phrases are to be regarded
as mandatory while those in the affirmative are
merely directory. . . . the use of the term "shall"
further emphasizes its mandatory character
and means that it is imperative, operating to
impose a duty which may be enforced.
And where the law does not distinguish the courts should not
distinguish; where the law does not make exception the court
should not except.
Second. At the outset, the penalties imposed by the MeTC
were already probationable. Hence, there was no need to
appeal if only to reduce the penalties to within the
probationable period. Multiple prison terms imposed against
an accused found guilty of several offenses in one decision are
not, and should not be, added up. And, the sum of the
multiple prison terms imposed against an applicant should not
be determinative of his eligibility for, nay his disqualification
from, probation. The multiple prison terms are distinct from
each other, and if none of the terms exceeds the limit set out
in the Probation Law,i.e., not more than six (6) years, then he
is entitled to probation, unless he is otherwise specifically
disqualified. The number of offenses is immaterial as long as
all the penalties imposed, taken separately, are within the
probationable period. For, Sec. 9, par. (a), P.D. 968, as
amended, uses the word maximum not total when it says that
"[t]he benefits of this Decree shall not be extended to those . .
. . sentenced to serve a maximum term of imprisonment of
more than six years." Evidently, the law does not intend to
sum up the penalties imposed but to take each penalty
separately and distinctly with the others. Consequently, even
if petitioner was supposed to have served his prison term of
one (1) year and one (1) day to one (1) year and eight (8)
months of prision correccional sixteen (16) times as he was
sentenced to serve the prison term for "each crime committed
on each date of each case, as alleged in the information(s),"
and in each of the four (4) informations, he was charged
with.having defamed the four (4) private complainants on four
(4) different, separate days, he was still·eligible for probation,
as each prison term imposed on petitioner was probationable.
Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that
those sentenced to higher penalties pose too great a risk to
society, not just because of their demonstrated capability for
serious wrong doing but because of the gravity and serious
consequences of the offense they might further commit. 14 The
Probation Law, as amended, disqualifies only those who have
been convicted of grave felonies as defined in Art. 9 in relation
to Art. 25 of The Revised Penal Code, 15 and not necessarily
those who have been convicted of multiple offenses in a single
proceeding who are deemed to be less perverse. Hence, the
basis of the disqualification is principally the gravity of the
offense committed and the concomitant degree of penalty
imposed. Those sentenced to a maximum term not exceeding
six (6) years are not generally considered callous, hard core
criminals, and thus may avail of probation.
To demonstrate the point, let ustake for instance one who is
convicted in a single decision of, say, thirteen (13) counts of
grave oral defamation (for having defamed thirteen [13]
individuals in one outburst) and sentenced to a total prison
term of thirteen (13) years, and another who has been found
guilty of mutilation and sentenced to six (6) years and one (l)
day of prision mayor minimum as minimum to twelve (l2)
years and one (1) day of reclusion temporal minimum as
maximuin. Obviously, the latter offender is more perverse and
is disqualified from availing of probation.
Petitioner thus proceeds on an erroneous assumption that
under the MeTC Decision he could not have availed of the
benefits of probation. Since he could have, although he did
not, his appeal now precludes him from applying for
probation.
And, even if we go along with the premise of petitioner,
however erroneous it may be, that the penalties imposed
against him should be summed up, still he would not have
qualified under the Decision rendered by the RTC since if the
"STRAIGHT penalty of EIGHT (8) MONTHS imprisonment"
imposed by the RTC is multiplied sixteen (16) times, the total
imposable penalty would be ten (10) years and eight (8)
months, which is still way beyond the limit of not more than
six (6) years provided for in the Probation Law, as amended.
To illustrate: 8 months multiplied by 16 cases = 128 months;
128 months divided by 12 months (in a year) = 10 years and 8
months, hence, following his argument, petitioner cannot still
be eligible for probation as the total of his penalties exceeds
six (6) years.
The assertion that the Decision of the RTC should be
multiplied only four (4) times since there are only four (4)
Informations thereby allowing petitioner to qualify for
probation, instead of sixteen (16) times, is quite difficult to
understand. The penalties imposed by the MeTC cannot be
any clearer — "one (1) year and one (1) day to one (1) year
and eight (8) months of prision correccional, in each crime
committed on each date of each case, as alleged in the
information(s). "Hence, petitioner should suffer the imposed
penalties sixteen (16) times. On the other hand, the RTC
affirmed, the judgment of conviction and merely reduced the
duration of each penalty imposed by the MeTC "in each case
to a STRAIGHT penalty of EIGHT (8) MONTHS imprisonment"
on account of a mitigating circumstance for each case, count
or incident of grave oral defamation·There is no valid reason
therefore why the penalties imposed by the RTC should be
multiplied only four (4) times, and not sixteen (16) times,
considering that the RTC merely affirmed the MeTC as regards
the culpability of petitioner in each of the sixteen (16) cases
and reducing only the duration of the penalties imposed
therein. Thus —
Premises considered, the judgment of
conviction rendered by the trial court is
AFFIRMED with modification, as follows:
WHEREFORE, the Court hereby finds the
accused Pablo C. Francisco GUILTY beyond
reasonable doubt in each of the above entitled
cases and appreciating in his favor the
mitigating circumstance which is analogous to
passion or obfuscation, the Court hereby
sentences the said accused in each case to a
straight penalty of EIGHT (8) MONTHS
imprisonment, with the accessory penalties
prescribed by law; and to pay the costs. 16
Nowhere in the RTC Decision is it stated or even hinted at that
the accused was acquitted or absolved in any of the four (4)
counts under each of the four (4) Informatfons, or that any
part of thejudgment of conviction was reversed, or that any of
the cases, counts or incidents was dismissed. Otherwise, we
will have to account for the twelve (12) other penalties
imposed by the MeTC. Can we? What is clear is that the
judgment of conviction rendered by the was affirmed with the
sole modification on the duration of the penalties.
In fine, considering that the multiple prison terms should not
be summed up but taken separately as the totality of all the
penalties is not the test, petitioner should have immediately
filed an application for probation as he was already qualified
after being convicted by the MeTC, if indeed thereafter he felt
humbled, was ready to unconditionally accept the verdict of
the court and admit his liability. Consequently, in appealing
the Decision of the MeTC to the RTC, petitioner lost his right
to probation. For, plainly, the law considers appeal and
probation mutually exclusive remedies. 17
Third. Petitioner appealed to the RTC not to reduce or even
correct the penalties imposed by the MeTC, but to assert his
innocence. Nothing more. The cold fact is that petitioner
appealed his conviction to the RTC not for the sole purpose of
reducing his penalties to make him eligible for probation —
since he was already qualified under the MeTC Decision — but
rather to insist on his innocence. The appeal record is wanting
of any other purpose. Thus, in his Memorandum before the
RTC, he raised only three (3) statements of error purportedly
committed by the MeTC all aimed at his acquittal: (a) in finding
that the guilt of the accused has been established because of
his positive identification by the witness for the prosecution;
(b) in giving full faith and credence to the bare statements of
the private complainants despite the absence of corroborating
testimonies; and, (c)in not acquitting him in all the
cases," 18 Consequently, petitioner insisted that the trial court
committed an error in relying on his positive identification
considering that private complainants could not have missed
identifying him who was their President and General Manager
with whom they worked for a good number of years.
Petitioner further argued that although the alleged
defamatory words were uttered in the presence of other
persons, mostly private complainants, co-employees and
clients, not one of them was presented as a witness. Hence,
according to petitioner, the trial court could not have
convicted him on the basis of the uncorroborative testimony
of private complainants. 19
Certainly, the protestations of petitioner connote profession
of guiltlessness, if not complete innocence, and do not simply
put in issue the propriety of the penalties imposed. For sure,
the accused never manifested that he was appealing only for
the purpose of correcting a wrong penalty — to reduce it to
within the probationable range. Hence, upon interposing an
appeal, more so after asserting his innocence therein,
petitioner should be precluded from seeking probation. By
perfecting his appeal, petitioner ipso facto relinquished his
alternative remedy of availing of the Probation Law the
purpose of which is simply to prevent speculation or
opportunism on the part of an accused who although already
eligible does not at once apply for probation, but doing so only
after failing in his appeal.
The fact that petitioner did not elevate the affirmance of his
conviction by the RTC to the Court of Appeals does not
necessarily mean that his appeal to the RTC was solely to
reduce his penalties. Conversely, he was afraid that the Court
of Appeals would increase his penalties, which could be worse
for him. Besides, the RTC Decision had already become final
and executory because of the negligence, according to him, of
his former counsel who failed to seek possible remedies within
the period allowed by law.
Perhaps it should be mentioned that at the outset petitioner,
in accordance with Sec 3, par. (e), Rule 117 of the Rules of
Court, 20 should have moved to quash as each of the four (4)
Informations filed against him charged four (4) separate
crimes of grave oral defamation, committed on four (4)
separate days. His failure to do so however may now be
deemed a waiver under Sec. 8 of the same Rule 21 and he can
be validly convicted, as in the instant case, of as many crimes
charged in the Information.
Fourth. The application for probation was filed way beyond
the period allowed by law. This is vital way beyond the period
allowed by law and crucial. From the records it is clear that the
application for probation was filed "only after a warrant for
the arrest of petitioner had been issued . . . (and) almost two
months after (his) receipt of the Decision" 22 of the RTC. This is
a significant fact which militates against the instant petition.
We quote with affirmance the well-written, albeit
assailed, ponencia of now Presiding Justice of the Court of
Appeals Nathanael P. De Pano, Jr., on the specific issue —
. . . the petition for probation was filed by the
petitioner out of time. The law in point, Section
4 of P.D. 968, as amended, provides thus:
Sec. 4. Grant of Probation. —
Subject to the provisions of this
Decree, the trial court may, after
it shall have convicted and
sentenced a defendant, and
upon application by said
defendant within the period for
perfecting an appeal. . . . place
the defendant on probation . . . .
Going to the extreme, and assuming that an
application for probation from one who had
appealed the trial court's judgment is allowed
by law, the petitioner's plea for probation was
filed out of time. In the petition is a clear
statement that the petitioner was up
for execution of judgment before he filed his
application for probation. P.D. No. 968 says that
the application for probation must be filed
"within the period for perfecting an appeal;"
but in this case, such period for appeal had
passed, meaning to say that the Regional Trial
Court's decision had attained finality, and no
appeal therefrom was possible under the law.
Even granting that an appeal from
the appellate court's judgment is contemplated
by P.D. 968, in addition to the judgment
rendered by the trial court, that appellate
judgment had become final and was, in fact, up
for actual execution before the application for
probation was attempted by the petitioner. The
petitioner did not file his application for
probation before the finality of the said
judgment; therefore, the petitioner's attempt
at probation was filed too late.
Our minds cannot simply rest easy on. the proposition that an
application for probation may yet be granted even if it was
filed only after judgment has become final, the conviction
already set for execution and a warrant of arrest issued for
service of sentence.
The argument that petitioner had to await the remand of the
case to the MeTC, which necessarily must be after the decision
of the RTC had become final, for him to file the application for
probation with the trial court, is to stretch the law beyond
comprehension. The law, simply, does not allow probation
after an appeal has been perfected.
Accordingly, considering that prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies, and
petitioner appealed from his conviction by the MeTC although
the imposed penalties were already probationable, and in his
appeal, he asserted only his innocence and did not even raise
the issue of the propriety of the penalties imposed on him,
and finally, he filed an application for probation outside the
period for perfecting an appeal granting he was otherwise
eligible for probation, the instant petition for review should be
as it is hereby DENIED.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ.,
concur.
Separate Opinions
 
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this
case.
I.
The principal basis for the affirmance of the decision of the
Court of Appeals denying probation is the fact that petitioner
had appealed his sentence before filing his application for
probation. Reliance is placed on the literal application of § 4 of
the Probation Law of 1976 ,as amended, which provides as
follows:
Sec. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a
defendant, and upon application by said
defendant within the period for perfecting an
appeal, suspend the execution of the sentence
and place the defendant on probation for such
period and upon such terms and conditions as
it may deem best; Provided, That no application
for probation shall be entertained or granted if
the defendant has perfected the appeal from
the judgment of conviction.
Probation may be granted whether the
sentence imposes a term of imprisonment or a
fine only probation shall be filed with the trial
court application shall be deemed a waiver of
the right to appeal.
An order granting or denying probation shall
not be appealable.
Thus, under § 4 the accused is given the choice of appealing
his sentence or applying for probation. If he appeals, he
cannot later apply for probation. If he opts for probation, he
can not appeal. Implicit in the choice, however, is that the
accused is not disqualified for probation under any of the
cases mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of
this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of
imprisonment of more than six years;
 (b) convicted of subversion or any crime against
the national security or the public order;
(c) who have previously been convicted by final
judgment of an offense punished by
imprisonment of not less than one month and
one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under
the provisions of this Decree; and
(e) who are already serving sentence at the
time the substantive provisions of this Decree
became applicable pursuant to Section 33
hereof.
Consequently, if under the sentence given to him an accused
is not qualified for probation, as when the penalty imposed on
him by the court singly or in their totality exceeds six (6) years
but on appeal the sentence is modified so that he becomes
qualified, I believe that the accused should not be denied the
benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed —
even encouraged — speculation on the outcome of appeals by
permitting the accused to apply for probation after he had
appealed and failed to obtain an acquittal. 1 It was to change
this that § 4 was amended by P.D. No. 1990 by expressly
providing that "no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." For an accused,
despite the fact that he is eligible for probation, may be
tempted to appeal in the hope of obtaining an acquittal if he
knows he can any way apply for probation in the event his
conviction is affirmed.2
There is, however, nothing in the amendatory Decree to
suggest that in limiting the accused to the choice of either
appealing from the decision of the trial court or applying for
probation, the purpose is to deny him the right to probation in
cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The
purpose of the amendment, it bears repeating, is simply to
prevent speculation or opportunism on the part of an accused
who; although eligible for probation, does not at once apply
for probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the
decision MeTC petitioner was principally motivated by a desire
to be acquitted. While acquittal might have been an alluring
prospect for him, what is clear is that he had a reason for
appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally
sentenced him to 1 year and 1 day to 1 year and 8 months
of prision correccional for "each crime committed on each
date of each case, as alleged in the information[s]." This
meant, as the majority opinion points out, that petitioner had
to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four
crimes of grave oral defamation in each of four cases. The
totality of the penalties imposed on petitioner (26 years and 8
months) thus exceeded the limit of six (6) years of
imprisonment allowed by § 9(a) and disqualified him for
probation. It was only after this penalty was reduced on
appeal to a straight penalty of eight months imprisonment in
each case or to a total term of 2 years and 8 months in the
four cases that petitioner became eligible for probation. Then
he did not appeal further although he could have done so.
The Court of Appeals, while acknowledging that "there may be
some space not covered by the present law on probation . . .
where in its original state, the petitioner was disqualified from
applying for probation under Sec. 9 of the Decree, becoming
eligible for probation only under the terms of the judgment on
appeal," nevertheless felt bound by the letter of § 4: "No
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction." The majority opinion, affirming the ruling, states
that to allow probation in this case would be to go against the
"clear and express mandate of sec. 4 of the Probation Law, as
amended." (p. 9)
To regard probation, however, as a mere privilege, to be given
to the accused only where it clearly appears he comes within
its letter is to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not
because it is a criminal law — it is not — but to achieve its
beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14
(1983)). The niggardly application of the law would defeat its
purpose to "help the probationer develop into a law-abiding
and self-respecting individual" (Baclayon v. Mutia, 129 SCRA
148, 149 (1984), per Teehankee, J.) or "afford [him] a chance
to reform and rehabilitate himself without the stigma of a
prison record, to save government funds that may otherwise
be spent for his food and maintenance while incarcerated, and
to decongest the jails of the country." (Del Rosario v. Rosero,
126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of
Appeals, 140 SCRA 391, 395 (1985) instead commends itself to
me:
Regarding this, it suffices to state that the
Probation Law was never intended to limit the
right of an accused person to present all
relevant evidence he can avail of in order to
secure a verdict of acquittal or a reduction of
the penalty. Neither does the law require a plea
of guilty on the part of the accused to enable
him to avail of the benefits of probation. A
contrary view would certainly negate the
constitutional right of an accused to be
presumed innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek
acquittal. Proof of this is that after the penalty imposed on
him by the MeTC had been reduced by the RTC so that he
thereby became qualified for probation, he did not appeal
further. The majority says that this was because he was afraid
that if he did the penalty could be increased. That possibility,
however, was also there when he appealed from the MeTC to
the RTC. For by appealing the sentence of the MeTC,
petitioner took as much risk that the penalty would be raised
as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner
professed his innocence and not simply questioned the
propriety of his sentence, but no more so does an accused
who, upon being arraigned, pleads, "Not Guilty." And yet the
latter cannot be denied probation if he is otherwise eligible for
probation.
It is argued that there is a difference because an accused who
pleads "not guilty'' in the beginning, later acknowledges his
guilt and shows contrition after he is found guilty. So does an
accused who appeals a sentence because under it he is not
qualified for probation, but after the penalty is reduced,
instead of appealing further, accepts the new sentence and
applies for probation.
This case is thus distinguishable from Llamado v. Court of
Appeals, 174 SCRA 566 (1989), in which it was held that
because the petitioner had appealed his sentence, he could
not subsequently apply for probation. For, unlike petitioner in
the case at bar, the accused in that case could have applied for
probation as his original sentence of one year of prision
correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in § 4 that one
who applies for probation must not "have perfected an appeal
from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because
under the original sentence meted out to him he was not
disqualified for probation. The issue here is whether the
multiple prison terms imposed on petitioner are to be
considered singly or in their totality for the purpose of § 9(a)
which disqualifies from probation those "sentenced to serve a
maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the
sentence originally imposed on petitioner was for "one (1)
year and one (1) day to one (1) year and eight (8) months
of prision correccional in each crime committed on each date
of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the
total prison term which he would have to serve was 26 years
and 8 months. This is clearly beyond the probationable
maximum allowed by law.
It is said, however, that even if the totality of the prison terms
is the test, the modified sentence imposed by the RTC would
not qualify the petitioner for probation because he has to
suffer imprisonment of eight months sixteen times. That is not
so. The RTC only "sentence[d] the said accused in each case to
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This
means eight (8) months times four (4), since there are four
cases, or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one
multiple sentences imposed in cases which are jointly tried
and decided. For example, § 9(c) disqualifies from probation
persons "who have previously been convicted by final
judgment of an offense punished by imprisonment of not less
than one month and one day and/or a fine of not less than
Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA
121 (1985) that the accused, who had been found guilty of
estafa in five criminal cases, was qualified for probation
because although the crimes had been committed on different
dates he was found guilty of each crime on the same day. As
this Court noted, "Rura was sentenced to a total prison
term of seventeen (l7) months and twenty-five (25) days. In
each criminal case the sentence was three (3) months and
fifteen (15) days.
That the duration of a convict's sentence is determined by
considering the totality of several penalties for different
offenses committed is also implicit in the provisions of the
Revised Penal Code on the accumulation of penalties. (See
e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the
gravity of the offense committed and the penalty imposed. I
agree. That is why I contend that a person who is convicted of
multiple grave oral defamation for which the total prison term
is, say, 6 years and 8 months, is guilty of a graver offense than
another who is guilty of only offense of grave oral defamation
and sentenced to a single penalty of 1 year and 8 months. The
relevant comparison is between an accused convicted of one
offense of grave oral defamation and another one convicted of
the same offense, say four or more times. The relevant
comparison is not, as the majority says, between an accused
found guilty of grave oral defamation four or more times and
another one found guilty of mutilation and sentenced to an
indeterminate term of 6 years and 1 day of prision mayor to
12 years and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for
denying probation in this case and that is that petitioner
applied for probation only after his case had been remanded
to the MeTC for the execution of its decision as modified. But
that is because § 4 provides that "an application for probation
shall be filed with the trial court." In the circumstances of this
case, petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC
had become final.
The decision of the Court of Appeals should be REVERSED and
respondent judge of the Metropolitan Trial Court of Makati,
Metro Manila should be ORDERED to GRANT petitioner's
application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice
Vicente V. Mendoza in his dissenting opinion that an accused,
who originally is not qualified for probation because the
penalty imposed on him by a court a quo exceeds six (6) years,
should not be denied that benefit of probation if on appeal
the sentence is ultimately reduced to within the prescribed
limit, I am unable, however, to second the other proposition
that multiple prison terms imposed by a court should be taken
in their totality for purposes of Section 9 (a), P.D. No. 968. In
this respect, I concur with Mr. Justice Josue Bellosillo in
his ponencia that in determining the eligibility or
disqualification of an applicant for probation charged with,
and sentenced to serve multiple prison terms for, several
offenses, "the number of offenses is immaterial as long as all
the penalties imposed, taken separately, are within the
probationable period." The use of the word maximum instead
of the word total in Section 9, paragraph (a) of P.D. 968, as
amended, should be enough to reveal that such has been the
legislative intent.
Thus, I still must vote for the denial of the petition.
Separate Opinions
MENDOZA, J., dissenting:
I vote to reverse the judgment of the Court of Appeals in this
case.
I.
The principal basis for the affirmance of the decision of the
Court of Appeals denying probation is the fact that petitioner
had appealed his sentence before filing his application for
probation. Reliance is placed on the literal application of § 4 of
the Probation Law of 1976 ,as amended, which provides as
follows:
Sec. 4. Grant of Probation. — Subject to the
provisions of this Decree, the trial court may,
after it shall have convicted and sentenced a
defendant, and upon application by said
defendant within the period for perfecting an
appeal, suspend the execution of the sentence
and place the defendant on probation for such
period and upon such terms and conditions as
it may deem best; Provided, That no application
for probation shall be entertained or granted if
the defendant has perfected the appeal from
the judgment of conviction.
Probation may be granted whether the
sentence imposes a term of imprisonment or a
fine only probation shall be filed with the trial
court application shall be deemed a waiver of
the right to appeal.
An order granting or denying probation shall
not be appealable.
Thus, under § 4 the accused is given the choice of appealing
his sentence or applying for probation. If he appeals, he
cannot later apply for probation. If he opts for probation, he
can not appeal. Implicit in the choice, however, is that the
accused is not disqualified for probation under any of the
cases mentioned in § 9, to wit:
Sec. 9. Disqualified Offenders. — The benefits of
this Decree shall not be extended to those:
(a) sentenced to serve a maximum term of
imprisonment of more than six years;
(b) convicted of subversion or any crime against
the national security or the public order;
(c) who have previously been convicted by final
judgment of an offense punished by
imprisonment of not less than one month and
 one day and/or a fine of not less than Two
Hundred Pesos.
(d) who have been once on probation under
the provisions of this Decree; and
(e) who are already serving sentence at the
time the substantive provisions of this Decree
became applicable pursuant to Section 33
hereof.
Consequently, if under the sentence given to him an accused
is not qualified for probation, as when the penalty imposed on
him by the court singly or in their totality exceeds six (6) years
but on appeal the sentence is modified so that he becomes
qualified, I believe that the accused should not be denied the
benefit of probation.
Before its amendment by P.D. No. 1990, the law allowed —
even encouraged — speculation on the outcome of appeals by
permitting the accused to apply for probation after he had
appealed and failed to obtain an acquittal. 1 It was to change
this that § 4 was amended by P.D. No. 1990 by expressly
providing that "no application for probation shall be
entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." For an accused,
despite the fact that he is eligible for probation, may be
tempted to appeal in the hope of obtaining an acquittal if he
knows he can any way apply for probation in the event his
conviction is affirmed.2
There is, however, nothing in the amendatory Decree to
suggest that in limiting the accused to the choice of either
appealing from the decision of the trial court or applying for
probation, the purpose is to deny him the right to probation in
cases like the one at bar where he becomes eligible for
probation only because on appeal his sentence is reduced. The
purpose of the amendment, it bears repeating, is simply to
prevent speculation or opportunism on the part of an accused
who; although eligible for probation, does not at once apply
for probation, doing so only after failing in his appeal.
In the case at bar, it cannot be said that in appealing the
decision MeTC petitioner was principally motivated by a desire
to be acquitted. While acquittal might have been an alluring
prospect for him, what is clear is that he had a reason for
appealing because under the sentence given to him he was
disqualified to apply for probation. The MeTC had originally
sentenced him to 1 year and 1 day to 1 year and 8 months
of prision correccional for "each crime committed on each
date of each case, as alleged in the information[s]." This
meant, as the majority opinion points out, that petitioner had
to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four
crimes of grave oral defamation in each of four cases. The
totality of the penalties imposed on petitioner (26 years and 8
months) thus exceeded the limit of six (6) years of
imprisonment allowed by § 9(a) and disqualified him for
probation. It was only after this penalty was reduced on
appeal to a straight penalty of eight months imprisonment in
each case or to a total term of 2 years and 8 months in the
four cases that petitioner became eligible for probation. Then
he did not appeal further although he could have done so.
The Court of Appeals, while acknowledging that "there may be
some space not covered by the present law on probation . . .
where in its original state, the petitioner was disqualified from
applying for probation under Sec. 9 of the Decree, becoming
eligible for probation only under the terms of the judgment on
appeal," nevertheless felt bound by the letter of § 4: "No
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction." The majority opinion, affirming the ruling, states
that to allow probation in this case would be to go against the
"clear and express mandate of sec. 4 of the Probation Law, as
amended." (p. 9)
To regard probation, however, as a mere privilege, to be given
to the accused only where it clearly appears he comes within
its letter is to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not
because it is a criminal law — it is not — but to achieve its
beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14
(1983)). The niggardly application of the law would defeat its
purpose to "help the probationer develop into a law-abiding
and self-respecting individual" (Baclayon v. Mutia, 129 SCRA
148, 149 (1984), per Teehankee, J.) or "afford [him] a chance
to reform and rehabilitate himself without the stigma of a
prison record, to save government funds that may otherwise
be spent for his food and maintenance while incarcerated, and
to decongest the jails of the country." (Del Rosario v. Rosero,
126 SCRA 228, 232 (1983), per Makasiar, J.)
The approach followed by the Court in Atienza v. Court of
Appeals, 140 SCRA 391, 395 (1985) instead commends itself to
me:
Regarding this, it suffices to state that the
Probation Law was never intended to limit the
right of an accused person to present all
relevant evidence he can avail of in order to
secure a verdict of acquittal or a reduction of
the penalty. Neither does the law require a plea
of guilty on the part of the accused to enable
him to avail of the benefits of probation. A
contrary view would certainly negate the
constitutional right of an accused to be
presumed innocent until the contrary is proved.
As already stated, petitioner did not appeal primarily to seek
acquittal. Proof of this is that after the penalty imposed on
him by the MeTC had been reduced by the RTC so that he
thereby became qualified for probation, he did not appeal
further. The majority says that this was because he was afraid
that if he did the penalty could be increased. That possibility,
however, was also there when he appealed from the MeTC to
the RTC. For by appealing the sentence of the MeTC,
petitioner took as much risk that the penalty would be raised
as the chance that he would he acquitted.
It is true that in appealing the sentence of the MeTC petitioner
professed his innocence and not simply questioned the
propriety of his sentence, but no more so does an accused
who, upon being arraigned, pleads, "Not Guilty." And yet the
latter cannot be denied probation if he is otherwise eligible for
probation.
It is argued that there is a difference because an accused who
pleads "not guilty'' in the beginning, later acknowledges his
guilt and shows contrition after he is found guilty. So does an
accused who appeals a sentence because under it he is not
qualified for probation, but after the penalty is reduced,
instead of appealing further, accepts the new sentence and
applies for probation.
This case is thus distinguishable from Llamado v. Court of
Appeals, 174 SCRA 566 (1989), in which it was held that
because the petitioner had appealed his sentence, he could
not subsequently apply for probation. For, unlike petitioner in
the case at bar, the accused in that case could have applied for
probation as his original sentence of one year of prision
correccional did not disqualify him for probation. That case fell
squarely within the ambit of the prohibition in § 4 that one
who applies for probation must not "have perfected an appeal
from the judgment of conviction."
II.
It is contended that petitioner did not have to appeal because
under the original sentence meted out to him he was not
disqualified for probation. The issue here is whether the
multiple prison terms imposed on petitioner are to be
considered singly or in their totality for the purpose of § 9(a)
which disqualifies from probation those "sentenced to serve a
maximum term of imprisonment of more than six years."
I submit that they should be taken in their totality. As the
sentence originally imposed on petitioner was for "one (1)
year and one (1) day to one (1) year and eight (8) months
of prision correccional in each crime committed on each date
of each case" and as there are four offenses of grave oral
defamation against petitioner in each of the four cases, the
total prison term which he would have to serve was 26 years
and 8 months. This is clearly beyond the probationable
maximum allowed by law.
It is said, however, that even if the totality of the prison terms
is the test, the modified sentence imposed by the RTC would
not qualify the petitioner for probation because he has to
suffer imprisonment of eight months sixteen times. That is not
so. The RTC only "sentence[d] the said accused in each case to
STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This
means eight (8) months times four (4), since there are four
cases, or 32 months or 2 years and 8 months.
The policy of the law indeed appears to be to treat as only one
multiple sentences imposed in cases which are jointly tried
and decided. For example, § 9(c) disqualifies from probation
persons "who have previously been convicted by final
judgment of an offense punished by imprisonment of not less
than one month and one day and/or a fine of not less than
Two Hundred Pesos. It was held in Rura v. Lopena, 137 SCRA
121 (1985) that the accused, who had been found guilty of
estafa in five criminal cases, was qualified for probation
because although the crimes had been committed on different
dates he was found guilty of each crime on the same day. As
this Court noted, "Rura was sentenced to a total prison
term of seventeen (l7) months and twenty-five (25) days. In
each criminal case the sentence was three (3) months and
fifteen (15) days.
That the duration of a convict's sentence is determined by
considering the totality of several penalties for different
offenses committed is also implicit in the provisions of the
Revised Penal Code on the accumulation of penalties. (See
e.g., arts. 48 and 70)
It is said that the basis of disqualification under § 9 is the
gravity of the offense committed and the penalty imposed. I
agree. That is why I contend that a person who is convicted of
multiple grave oral defamation for which the total prison term
is, say, 6 years and 8 months, is guilty of a graver offense than
another who is guilty of only offense of grave oral defamation
and sentenced to a single penalty of 1 year and 8 months. The
relevant comparison is between an accused convicted of one
offense of grave oral defamation and another one convicted of
the same offense, say four or more times. The relevant
comparison is not, as the majority says, between an accused
found guilty of grave oral defamation four or more times and
another one found guilty of mutilation and sentenced to an
indeterminate term of 6 years and 1 day of prision mayor to
12 years and 1 day of reclusion temporal.
III.
Finally, it is said that there is a more fundamental reason for
denying probation in this case and that is that petitioner
applied for probation only after his case had been remanded
to the MeTC for the execution of its decision as modified. But
that is because § 4 provides that "an application for probation
shall be filed with the trial court." In the circumstances of this
case, petitioner had to await the remand of the case to the
MeTC, which necessarily must be after the decision of the RTC
had become final.
The decision of the Court of Appeals should be REVERSED and
respondent judge of the Metropolitan Trial Court of Makati,
Metro Manila should be ORDERED to GRANT petitioner's
application for probation.
VITUG, J., concurring:
While I subscribe to the observation made by Mr. Justice
Vicente V. Mendoza in his dissenting opinion that an accused,
who originally is not qualified for probation because the
penalty imposed on him by a court a quo exceeds six (6) years,
should not be denied that benefit of probation if on appeal
the sentence is ultimately reduced to within the prescribed
limit, I am unable, however, to second the other proposition
that multiple prison terms imposed by a court should be taken
in their totality for purposes of Section 9 (a), P.D. No. 968. In
this respect, I concur with Mr. Justice Josue Bellosillo in
his ponencia that in determining the eligibility or
disqualification of an applicant for probation charged with,
and sentenced to serve multiple prison terms for, several
offenses, "the number of offenses is immaterial as long as all
the penalties imposed, taken separately, are within the
probationable period." The use of the word maximum instead
of the word total in Section 9, paragraph (a) of P.D. 968, as
amended, should be enough to reveal that such has been the
legislative intent.
Thus, I still must vote for the denial of the petition.
MENDOZA, J., dissenting:
1 As originally promulgated on July 24, 1976, P.D. No. 968, § 4
provided:
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and
place the defendant on probation for such period and upon
such terms and conditions as it may deem best.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court, with notice to the
appellate court if an appeal has been taken from the sentence
of conviction. The filing of the application shall be deemed a
waiver of the right to appeal, or the automatic withdrawal of a
pending appeal.
An order granting or denying probation shall not be
appealable. (Emphasis added)
Thus, under the law as originally promulgated, any time after
the trial court had convicted and sentenced the accused and
even if he had taken an appeal, the trial court could grant him
probation in the event he is convicted.
On December 1, 1977, § 4 of the law was again amended by
P.D. No. 1257 so as to read as follows:
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of
said sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem
best.
The prosecuting officer concerned shall be notified by the
court of the filing of the application for probation and he may
submit his comment on such application within ten days from
receipt of the notification.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine with subsidiary imprisonment
in case of insolvency. An application for probation shall be
filed with the trial court, with notice to the appellate court if
an appeal has been taken from the sentence of conviction.
The filing of the application shall be deemed a waiver of the
right to appeal, or the automatic withdrawal of a pending
appeal. In the latter case, however, if the application is filed on
or after the date of the judgment of the appellate court, said
application shall be acted upon by the trial court on the basis
of the judgment of the appellate court.
An order granting or denying probation shall not be
appealable. (Emphasis added)
This amendment limited the period for applying for probation
to the point just "before he begins to serve his sentence." This
meant not only after an appeal had been taken but even after
a judgment had been rendered by the appellate court and
after the latter's judgment had become final. Hence the
proviso that "the application [for probation] shall be acted
upon by the trial court on the basis of the judgment of the
appellate court."
On October 5, 1985, § 4 of the Probation Law was again
amended to further limit the period for applying for probation
to the "period for perfecting an appeal." The purpose was to
confine the accused to the choice of either applying for
probation or appealing. While heretofore an accused could
appeal and, after his appeal had failed, apply for probation,
under the amendatory Decree, this is no longer possible. If he
appeals he cannot later apply for probation. If he applies for
probation he cannot later appeal. As amended by P.D. No.
1990, § 4 reads:
Sec. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said
defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on
probation for such period and upon such terms and conditions
as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a
term of imprisonment or a fine only. An application for
probation shall be filed with the trial court. The filing of the
application shall be deemed a waiver of the right to appeal.
An order granting or denying probation shall not be
appealable. (Emphasis added)
2 The preamble of P.D. No. 1990 states:
WHEREAS, it has been the sad experience that persons who
are convicted of offenses and who may be entitled to
probation still appeal the judgment of conviction even up to
the Supreme Court, only to pursue their application for
probation when their appeal is eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to
mention the huge expenses of litigation, on the part of the
State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower
courts up to the Supreme Court, are often times rendered
nugatory when, after the appellate court finally affirms the
judgment of conviction, the defendant applies for and is
granted probation;
WHEREAS, probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated;
(Emphasis added)
 manufacturers, such tax to be paid before the withdrawal or
removal of said commodities, goods, wares or merchandise
from the customhouse or the post office, except as follows:
REPUBLIC ACT No 4103
AN ACT TO AMEND SECTION ONE HUNDRED NINETY OF
COMMONWEALTH ACT NUMBERED FOUR HUNDRED SIXTY-
SIX, AS AMENDED, OTHERWISE KNOWN AS THE NATIONAL
INTERNAL REVENUE CODE.
Section 1. Section one hundred and ninety of Commonwealth
Act Numbered Four hundred and sixty-six, as amended, is
further amended to read as follows:
"Sec. 190. Compensating tax. On the commodities goods,
wares or merchandise purchased or received by persons
residing or doing business in the Philippine, there shall be paid
a compensating tax on the total value thereof, including
freight, postage, insurance, commission and similar charges,
equivalent to the percentage taxes imposed under this Title on
original transactions effected by merchants, importers, or
(a) Articles subject to specific taxes under Title IV of
this Code and articles to be used by the importer
himself in the manufacture or preparation of articles
subject to specific taxes;
"(b) Commodities, goods, wares or merchandise
purchased or received by merchants, importers and
manufacturers who are subject to tax under Section
one hundred eighty-four, one hundred eighty-five, one
hundred eighty-six or one hundred eighty-nine of this
Title, where such importations are to be sold, resold,
bartered or exchanged or are to be used in the
manufacture or preparation of articles for sale, barter,
or exchange and are to form part thereof;
"(c) Articles to be used by the importer himself in the
manufacture or preparation of articles for consignment
abroad;
"(d) Articles to be used by the importer himself as a
passenger and/or cargo vessel whether coastwise or
ocean-going, including engines and spare parts of said
vessel;
"(e) Wearing apparel and articles for personal use
purchased in foreign countries by residents of the
Philippines which have been used abroad and
accompanying them upon their return to the
Philippines the export value of which does not exceed
the amount of:
"P250 when the sojourn is not less than one week;
"P500 when the sojourn is not less than two weeks; or
"P1,000 when the sojourn is not less than one month.
"Personal and household effects purchased in foreign
countries and brought into the Philippines by returning
residents which effects have been used abroad, neither
imported for the account of any other person nor
intended for barter, sale or hire and accompanying
them upon their return to the Philippines or arriving
within ninety days before or after their return, the
export value of which does not exceed the amount of:
"P1,500 when the sojourn is not less than three
months;
"P2,500 when the sojourn is not less than six months;
or
"P3,000 when the sojourn is not less than one year.
"Additional exemption shall be granted for books,
professional instruments and implements belonging to
Filipino professionals, students and grantees of
fellowships and scholarships returning to the
Philippines from training, studies and/or employment
abroad, the export value of which does not exceed the
amount of one thousand pesos: Provided, That an
additional exemption shall be granted to returning
Filipino Doctors of Medicine and Dentistry and other
scientists for professional instruments and implements
related to their particular field of specialization as
attested to by the respective institutions of training,
studies and/or employment, the export value of which
does not exceed three thousand pesos: Provided,
further, That returning Filipino professionals, students
and grantees of fellowships and scholarship, shall
present to the Commissioner of Internal Revenue a
certificate issued by the schools they have attended:
Provided, finally, That such returning residents shall
not have previously received the benefits herein
granted within one hundred and eighty days
immediately preceding their arrival.
"(f) Professional instruments and implements, tools of
trade, occupation or employment, wearing apparel,
domestic animals, and personal and household effects
belonging to persons coming to settle for the first time
in the Philippines, including citizens of the Philippines
who have resided abroad for not less than ten years,
for their own use and not for barter, sale or exchange,
accompanying such persons, or arriving within ninety
days before or after the arrival of their owners, upon
the production of evidence satisfactory to the
Commissioner of Internal Revenue that such persons
are actually coming to settle in the Philippines, that the
articles were brought from their former place of
abode, that change of residence is bona fide: Provided,
That no merchandise of any kind, machinery or other
articles for use in manufacture, shall be classified
under this subsection.
"(g) Articles used by officials and employees of the
Philippine Government assigned abroad and brought
on their return to the Philippines by reason of transfer,
resignation, or retirement, upon specific instructions of
the Secretary of Finance and upon the request of the
returning official or employee concerned: Provided,
That the total acquisition cost of such articles does not
exceed twenty per centum of the total basic salary
received from the Philippine Government during such
 tour of duty, of not more than four years as certified by
the Department concerned.
"If any article withdrawn from the customhouse of the
post office without the payment of the compensating
tax is subsequently used by the importer for other
purposes, corresponding entry should be made in the
books of accounts, if any are kept, or a written notice
thereof sent to the Commissioner of Internal Revenue
and payment of the corresponding compensating tax
made within ten days from the date of such entry or
notice. If the tax is not paid within such period, the
amount of the tax shall be increased by twenty-five per
centum, the increment to form part of the tax.
"In the case of tax free articles brought or imported
into the Philippines by persons, entities or agencies,
exempt from tax which are subsequently sold,
transferred or exchanged in the Philippines to non-
exempt private persons or entities, the purchasers or
recipients shall be considered the importers thereof.
The tax due on each articles shall constitute a lien on
the article itself superior to all other charges or liens,
irrespective of the possessors thereof."
Section 2. This Act shall take effect upon its approval.
Approved: June 19, 1964
FIRST DIVISION
G.R. No. 200087, October 12, 2016
YOLANDA LUY Y GANUELAS, Petitioner, v. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This case involves the criminal attempt by the petitioner to
smuggle dangerous drugs (shabu) inside a detention facility to
her detained husband by submerging the packets
of shabu inside a plastic jar filled with strawberry juice and
cracked ice. The attempt failed because of the alacrity of the
lady guard manning the entrance of the jail compound.
The Case
Under appeal is the decision promulgated on August 31,
2011,1 whereby the Court of Appeals (CA) affirmed in CA-G.R.
CR No. 33057 the judgment rendered on September 18, 2009
by the Regional Trial Court (RTC), Branch 74, in Olongapo City
finding the petitioner guilty beyond reasonable doubt of illegal
possession of six heat-sealed transparent plastic sachets
containing methamphetamine hydrochloride (shabu) with a
total net weight of approximately 2.60 grams.2
Antecedents
The Office of the City Prosecutor in Olongapo City initiated the
prosecution through the information filed in the RTC charging
the petitioner with violation of Section 11, Article II, Republic
Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002), alleging:
That on or about the twenty-fifth (25th) day of October 2004,
in the City of Olongapo, Philippines and within the jurisdiction
of this Honorable Court, the above-named accused, did then
and there willfully, unlawfully and knowingly have in her
effective possession and control six (6) heat-sealed
transparent plastic sachets containing Methamphetamine
Hydrochloride otherwise known as 'Shabu' with an
approximate total weight of Two Gram (sic) and Six Tenth (2.6)
of a gram which is a dangerous drugs (sic), said accused not
having the corresponding license or prescription to possess
said dangerous drugs,(sic)
CONTRARY TO LAW.3
The CA narrated the factual and procedural antecedents, viz.:
During the trial, the prosecution presented the lone testimony
of Jail Officer 3 Myrose Joaquin, while the accused-appellant
testified for the defense.
As part of her testimony, JO3 Joaquin claimed that on 25
October 2004, she was doing her usual duty as female guard
at the gate of the Bureau of Jail Management Bureau
Olongapo City. When she searched the effects of accused-
appellant for possible contrabands, her attention was called
on the strawberry juice placed in a white container full of
cracked ice inside. When she was asked what was unusual
about the juice, JO3 Joaquin answered that accused-appellant
can make the juice inside if she wanted to. To quell her
suspicion, JO3 Joaquin asked accused-appellant if she could
transfer it in another container but accused-appellant refused.
JO3 Joaquin insisted, nevertheless. They then went to the
guardhouse and transferred the juice into a bowl. As the ice
inside scattered, the illegal drugs were revealed. Accused-
appellant allegedly pleaded for her not to report the matter to
the jail warden, but JO3 Joaquin ignored her plea. After
bringing accused-appellant to the jail warden, they brought
the confiscated items to the laboratory for examination. The
examination revealed that the confiscated items were positive
for methamphetamine hydrochloride.
JO3 Joaquin also identified the accused-appellant in court and
the confiscated items and claimed that they can identify them
to be the same items seized from accused-appellant because
of the markings she placed thereon.
On cross-examination, JO3 Joaquin explained that the heat-
sealed plastic sachets were wrapped with a plastic and two
(2)-peso coin. She also admitted that she placed accused-
appellant on a close watch because even prior to the incident,
accused-appellant would bring with her ready-made juice,
making her think that accused-appellant was peddling illegal
drugs inside the prison. Finally, she claimed that she never had
a misunderstanding with accused-appellant prior to the date
of the incident.
Accused-appellant, on the other hand, claimed that on 25
October 2004, she was at the BJMP to visit her husband,
Nestor, a prisoner therein. As she was about to go inside the
compound, a certain Melda called her and requested that she
give the juice to her husband, a certain Bong, who was also a
prisoner at the BJMP. Accused-appellant initially declined and
advised Melda to go personally so she could talk to her
husband. Melda, however, was supposedly in a hurry as she
still had to fetch her child. Melda allegedly also had no
identification at that time. Because of Melda's insistence,
accused-appellant acceded to her request and got Melda's
plastic box containing a Tupperware and a juice container.
When she was asked who could corroborate this story,
accused-appellant claimed that nobody saw Melda handed
(sic) to her the juice container as she had no companion at
that time.
Accused-appellant further stated that after receiving Melda's
items, she already went inside the compound and went
passed (sic) through the routine security inspection. When JO3
Joaquin transferred the juice into a bowl, she saw a plastic
that contained two (2) coins. Thereafter, JO3 Joaquin brought
her to the office of the BJMP. After a while, she was detained.
On cross-examination, accused-appellant admitted that her
husband was convicted of a drug-related case and that she,
herself, was once detained before. She did not know the full
name of Melda or her husband but she had seen them in the
past inside the jail. She also admitted that there can be no
dispute that the drugs were found in her possession but
maintained that the same came from Melda.4
chanrobleslaw
Judgment of the RTC
After the trial, the RTC rendered judgment on September 18,
2009 convicting the petitioner as charged, 5 disposing
thusly:chanRoblesvirtualLawlibrary
WHEREFORE, this Court finds accused Yolanda Luy y Ganuelas
guilty beyond reasonable doubt of violation of Section 11,
Article II, R. A. 9165 and is hereby sentenced to suffer the
penalty of imprisonment of twelve (12) years and one (1) day
and to pay a fine of P300,000.00 with subsidiary imprisonment
in case of inability to pay the fine. The illegal drug confiscated
from the accused is hereby ordered to be turned over to the
Philippine Drug and (sic) Enforcement Agency (PDEA) for
disposition in accordance with law.
SO ORDERED.6
chanrobleslaw
Decision of the CA
The petitioner appealed, but the CA affirmed the conviction
through the now assailed decision, holding:
WHEREFORE, premises considered, the instant Appeal
is DENIED. The assailed Decision of the court a quo
is AFFIRMED IN TOTO.
SO ORDERED.7
Issue
In this appeal, the petitioner insists that the CA erred in
affirming her conviction despite the failure of the Prosecution
to show that arresting officer JOS Myrose Joaquin had
faithfully complied with the requirement on the chain of
custody under Section 21 of R.A. No. 9165; that, accordingly,
the packets of shabu presented in court as evidence were not
shown to be the same substances recovered from her; that,
moreover, JO3 Joaquin claimed to have brought the
substances herself to the crime laboratory for chemical
examination, but did not mention the person who had
received the same from her at the laboratory; and that no
inventory of the seized substances was made and no any
pictures of them were taken at the point of arrest.
Ruling of the Court
The appeal lacks merit.
First of all, the factual findings of the trial court, its calibration
of the testimonies of the witnesses, and its assessment of the
probative weight thereof, as well as its conclusions on the
credibility of the witnesses on which said findings were
anchored are accorded great respect. This great respect rests
in the trial court's first-hand access to the evidence presented
during the trial, and in its direct observation of the witnesses
and their demeanor while they testify on the occurrences and
events attested to.8 Absent any showing of a fact or
circumstance of weight and influence that would appear to
have been overlooked and, if considered, could affect the
outcome of the case, the factual findings on and assessment
of the credibility of witnesses made by the trial court are
binding on the appellate tribunal.9 Unlike the appellate court,
the trial court has the unique opportunity of such personal
observation. The respect for the latter court's factual findings
particularly deepens once the appellate court has affirmed
such factual findings, for the latter, performing its sworn duty
to re-examine the trial records as thoroughly as it could in
order to uncover any fact or circumstances that could impact
the verdict in favor of the appellant, is then presumed to have
uncovered none sufficient to undo or reverse the conviction.
As such, the lower courts' unanimous factual findings are
generally binding upon the Court which is not a trier of facts. 10
Upon review, the Court has not found any valid reason to
disturb the factual findings of the RTC and the CA.
Secondly, a successful prosecution for the illegal possession of
dangerous drugs in violation of Section 11 of R. A. No. 9165
requires that the following essential elements of the offense
be established, namely: (1) the accused is in possession of an
item or object identified as a prohibited drug; (2) her
possession is not authorized by law; and (3) she freely and
consciously possessed the drug.11
The petitioner, whose husband, Nestor, was a detainee in the
Olongapo City jail, was caught in the actual illegal possession
of the shabu involved herein as she was entering the gate of
the jail compound by JO3 Joaquin, the female guard, during
the latter's routine inspection of her person and personal
belongings on October 25, 2004. JO3 Joaquin, as the
designated searcher of female visitors, conducted the search
in the presence of other jail guards. Noticing the round white-
colored plastic jar labeled Tang Orange filled with cracked ice
and strawberry juice, she insisted that the petitioner transfer
the strawberry juice into another container, but the latter
resisted. JO3 Joaquin and a fellow jail guard then brought the
jar inside the guardhouse with the petitioner in tow, and there
emptied its contents into a bowl. Upon removing the cracked
ice, the jail guards discovered the plastic material containing
two P1 coins inside the jar. At that point, the petitioner
pleaded with them not to report their discovery to the jail
warden, but JOS Joaquin ignored her. The guards immediately
haled her before the warden along with the plastic material
and its contents. Opening the plastic material in the presence
of the petitioner, they found the six heat-sealed transparent
plastic sachets with suspected shabu inside. Under the
circumstances, the petitioner was arrested in flagrante
delicto.
At the time of confiscation on October 25, 2004, JO3 Joaquin
marked the heat-sealed plastic sachets of shabu with her
initials "MCJ/AO".12 Thereafter, the request for laboratory
examination was prepared by P./Chief Insp. Miguel Gallardo
Corpus.13 The request and the substances were delivered to
the laboratory by PO1 CM. Ballon. Later on, the PNP Crime
Laboratory Service issued Chemistry Report No. D-0181-2004
(Exhibit C) through P./Sr. Insp. Arlyn M. Dascie, Forensic
Chemist, attesting to the findings on the substances indicating
the presence of methylamphetamine hydrochloride, or
shabu.14
The petitioner expectedly denied that the shabu belonged to
her. Her sole explanation for why she had the shabu at the
time was that a certain Melda had requested her to bring the
jar of strawberry juice inside the jail compound for her
husband, Bong, also a detainee, because Melda had
supposedly forgotten to bring her identification card that day,
and because she was then in a hurry to fetch her child.
The RTC after the trial and the CA on appeal rejected the
petitioner's denial and explanation. We also reject them now.
Denial, aside from being easily fabricated, has been the
common excuse tendered by those arrested and prosecuted
for the illegal possession of dangerous drugs. Under Section
1115 of R.A. Act No. 9165, however, the mere possession of the
dangerous drugs was enough to render the possessor guilty of
the offense. Moreover, the denial by the petitioner, being self-
serving and negative, did not prevail over the positive
declarations of JO3 Joaquin. In order for the denial to be
accorded credence, it must be substantiated by strong and
convincing evidence.16 Alas, the petitioner did not present
such evidence here. As to her explanation, she could have
presented Melda herself to corroborate her story. Her word
alone not enough because she had been caught in the actual
possession of the shabu during the routinary search at the
gate of the jail compound. As such, we cannot allow her denial
to gain traction at all.17
In fine, all the essential elements of illegal possession of
dangerous drugs were established. To start with, she was
caught in the voluntary possession of the shabu. And,
secondly, she presented no evidence about her being
authorized to possess the shabu. Worthy to reiterate is that
her mere possession of the shabu constituted the crime itself.
Her animus possidendi — the intent to possess essential in
crimes of mere possession like this - was established beyond
reasonable doubt in view of the absence of a credible
explanation for the possession.18
Thirdly, the petitioner insists that the State did not prove the
chain of custody of the shabu. In our view, however, her
immediate admission of the possession of the shabu following
her arrest in flagranti delicto bound her for, under the rules
on evidence, the act, declaration or omission of a party as to a
relevant fact was admissible against her.19 Her admission
renders her insistence irrelevant and inconsequential.
Finally, the CA affirmed the penalty fixed by the RTC of 12
years and one day of imprisonment and fine of P300,000.00
with subsidiary imprisonment in case of inability to pay the
fine. The affirmance was erroneous for two reasons,
namely: one, the penalty of imprisonment thus imposed was a
straight penalty, which was contrary to Section 1 of
the Indeterminate Sentence Law; and, two, mandating the
subsidiary imprisonment was legally invalid and
unenforceable.
The penalty for the crime committed by the petitioner is
provided for in Section 11(3) of R.A. No. 9165, as
follows:chanRoblesvirtualLawlibrary
Section 11. Possession of Dangerous Drugs. — The penalty of
life imprisonment to death and a fine ranging from Five
hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who,
unless authorized by law, shall possess any dangerous drug In
the following quantities, regardless of the degree of purity
thereof:cralawlawlibrary
x x x x
(3) Imprisonment of twelve (12) years and one (1) day to
twenty (20) years and a fine ranging from Three hundred
thousand pesos (P300,000.00) to four hundred thousand
pesos (P400,000.00), if the quantities of dangerous drugs are
less than five (5) grams of opium, morphine, heroin, cocaine or
cocaine hydrochloride, marijuana resin or marijuana resin
oil, methamphetamine hydrochloride or "shabu", or other
dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed
or newly introduced drugs and their derivatives, without
having any therapeutic value or if the quantity possessed is far
beyond therapeutic requirements; or less than three hundred
(300) grams of marijuana.
chanrobleslaw
Based on the provision, the correct penalty was an
indeterminate sentence whose minimum should not be less
than the minimum of 12 years and one day prescribed by
Section 11(3), R.A. No. 9165, supra, and whose maximum
should not exceed the maximum of 20 years as also prescribed
by Section 11(3), R.A. No. 9165, supra. The imposition of the
indeterminate sentence was required by Section 1 of
the Indeterminate Sentence Law, viz.:
Section 1. Hereafter, in imposing a prison sentence for an
offense punished by the Revised Penal Code, or its
amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the
minimum which shall be within the range of the penalty next
lower to that prescribed by the Code for the offense; and if
the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the
minimum term prescribed by the same. (As amended by Act
No. 4225)
chanrobleslaw
Considering that neither the offense committed nor the
imposable penalty was expressly exempt from the coverage of
the Indeterminate Sentence Law pursuant to Section
220 thereof, the imposition of the indeterminate sentence was
mandatory.21 The minimum and the maximum periods had a
worthy objective, for, as the Court expounded in Bacar v.
Judge de Guzman, Jr.:22chanroblesvirtuallawlibrary
The need for specifying the minimum and maximum periods
of the indeterminate sentence is to prevent the unnecessary
and excessive deprivation of liberty and to enhance the
economic usefulness of the accused, since he may be
exempted from serving the entire sentence, depending upon
his behavior and his physical, mental, and moral record.
The requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the RPC or by special
laws, with definite minimum and maximum terms, as the
Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed mandatory.
chanrobleslaw
To conform with the Indeterminate Sentence Law, therefore,
the indeterminate sentence should be 12 years and one day,
as minimum, to 14 years, as maximum.
The other error of the lower courts was in imposing subsidiary
imprisonment should the petitioner be unable to pay the fine.
The imposition of subsidiary imprisonment, which is a
subsidiary personal liability of a person found guilty by final
judgment who has no property with which to meet the fine, is
based on and in accord with Article 39 of the Revised Penal
Code, a provision that is supplementary to special laws (like
R.A. No. 9165) unless the latter should specially provide the
contrary.23 But subsidiary imprisonment cannot be imposed on
the petitioner because her principal penalty, supra, was
higher then prision correccional or imprisonment for six years.
In this regard, Article 39 of the Revised Penal Code relevantly
states:chanRoblesvirtualLawlibrary
Article 39. Subsidiary penalty. — If the convict has no property
with which to meet the fine mentioned in the paragraph 3 of
the next preceding article, he shall be subject to a subsidiary
personal liability at the rate of one day for each eight pesos,
subject to the following rules:cralawlawlibrary
x x x x
3. When the principal imposed is higher than prision
correctional, no subsidiary imprisonment shall be imposed
upon the culprit.
xxxx
chanrobleslaw
To repeat, the RTC's imposition of subsidiary imprisonment "in
case of inability to pay the fine" of P300,000.00 was invalid
and legally unenforceable.
In view of the foregoing, the petitioner is ordered to suffer the
modified penalty of an indeterminate sentence of 12 years
and one day, as minimum, to 14 years, as maximum, and to
pay a fine of P300,000.00, without subsidiary imprisonment in
case of her insolvency.
WHEREFORE, the Court AFFIRMS the decision promulgated on
August 31, 2011 in CA-G.R. CR No. 33057 subject to
the MODIFICATION that the penalty of the petitioner is the
indeterminate sentence of 12 years and one day, as minimum,
to 14 years, as maximum, and to pay a fine of P300,000.00
without subsidiary imprisonment in case of her insolvency;
and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
Leonardo-De Castro, (Acting Chairperson),
Bernabe, and Caguioa,
ROMERO, J.:
In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City,
Rogelio Bayotas y Cordova was charged with Rape and eventually
convicted thereof on June 19, 1991 in a decision penned by Judge
Manuel E. Autajay. Pending appeal of his conviction, Bayotas died on
February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory arrest secondary
to hepatic encephalopathy secondary to hipato carcinoma gastric
malingering. Consequently, the Supreme Court in its Resolution of May
20, 1992 dismissed the criminal aspect of the appeal. However, it
required the Solicitor General to file its comment with regard to
Bayotas' civil liability arising from his commission of the offense
charged.
In his comment, the Solicitor General expressed his view that the death
Perlas- of accused-appellant did not extinguish his civil liability as a result of his
JJ., concur. commission of the offense charged. The Solicitor General, relying on
the case of People v. Sendaydiego   insists that the appeal should still
1

Sereno, C.J., on leave.

be resolved for the purpose of reviewing his conviction by the lower
court on which the civil liability is based.

Counsel for the accused-appellant, on the other hand, opposed the

view of the Solicitor General arguing that the death of the accused
G.R. No. 102007 September 2, 1994 while judgment of conviction is pending appeal extinguishes both his
criminal and civil penalties. In support of his position, said counsel
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, invoked the ruling of the Court of Appeals in People v. Castillo and
vs. Ocfemia   which held that the civil obligation in a criminal case takes
2

ROGELIO BAYOTAS y CORDOVA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
root in the criminal liability and, therefore, civil liability is extinguished
if accused should die before final judgment is rendered.
We are thus confronted with a single issue: Does death of the accused
pending appeal of his conviction extinguish his civil liability?
In the aforementioned case of People v.  Castillo, this issue was settled
in the affirmative. This same issue posed therein was phrased thus:
Does the death of Alfredo Castillo affect both his criminal responsibility
and his civil liability as a consequence of the alleged crime?
It resolved this issue thru the following disquisition:
Article 89 of the Revised Penal Code is the controlling
statute. It reads, in part:
Art. 89. How criminal liability is
totally extinguished. — Criminal
liability is totally extinguished:
1. By the death of the convict, as to
the personal penalties; and as to the
pecuniary penalties liability therefor
is extinguished only when the death
of the offender occurs before final
judgment;
With reference to Castillo's criminal liability, there is
no question. The law is plain. Statutory construction is
unnecessary. Said liability is extinguished.
The civil liability, however, poses a problem. Such
liability is extinguished only when the death of the
offender occurs before final judgment. Saddled upon
us is the task of ascertaining the legal import of the
term "final judgment." Is it final judgment as
contradistinguished from an interlocutory order? Or, is
it a judgment which is final and executory?
We go to the genesis of the law. The legal precept
contained in Article 89 of the Revised Penal Code
heretofore transcribed is lifted from Article 132 of the
Spanish El Codigo Penal de 1870 which, in part,
recites:
La responsabilidad penal se extingue.
1. Por la muerte del reo en cuanto a
las penas personales siempre, y
respecto a las pecuniarias, solo
cuando a su fallecimiento no hubiere
recaido sentencia firme.
xxx xxx xxx
The code of 1870 . . . it will be observed employs the
term "sentencia firme." What is "sentencia firme"
under the old statute?
XXVIII Enciclopedia Juridica Española, p. 473, furnishes
the ready answer: It says:
SENTENCIA FIRME. La sentencia que
adquiere la fuerza de las definitivas
por no haberse utilizado por las
partes litigantes recurso alguno
contra ella dentro de los terminos y
plazos legales concedidos al efecto.
"Sentencia firme" really should be understood as one
which is definite. Because, it is only when judgment is
such that, as Medina y Maranon puts it, the crime is
confirmed — "en condena determinada;" or, in the
words of Groizard, the guilt of the accused becomes —
"una verdad legal." Prior thereto, should the accused
die, according to Viada, "no hay legalmente, en tal
caso, ni reo, ni delito, ni responsabilidad criminal de
ninguna clase." And, as Judge Kapunan well explained,
when a defendant dies before judgment becomes
executory, "there cannot be any determination by
final judgment whether or not the felony upon which
the civil action might arise exists," for the simple
reason that "there is no party defendant." (I Kapunan,
Revised Penal Code, Annotated, p. 421. Senator
Francisco holds the same view. Francisco, Revised
Penal Code, Book One, 2nd ed., pp. 859-860)
The legal import of the term "final judgment" is
similarly reflected in the Revised Penal Code. Articles
72 and 78 of that legal body mention the term "final
judgment" in the sense that it is already enforceable.
This also brings to mind Section 7, Rule 116 of the
Rules of Court which states that a judgment in a
criminal case becomes final "after the lapse of the
period for perfecting an appeal or when the sentence
has been partially or totally satisfied or served, or the
defendant has expressly waived in writing his right to
appeal."
By fair intendment, the legal precepts and opinions
here collected funnel down to one positive conclusion:
The term final judgment employed in the Revised
Penal Code means judgment beyond recall. Really, as
long as a judgment has not become executory, it
cannot be truthfully said that defendant is definitely
guilty of the felony charged against him.
Not that the meaning thus given to final judgment is
without reason. For where, as in this case, the right to
institute a separate civil action is not reserved, the
decision to be rendered must, of necessity, cover
"both the criminal and the civil aspects of the
case." People vs.  Yusico (November 9, 1942), 2 O.G.,
No. 100, p. 964. See also: People vs. Moll, 68 Phil.,
626, 634; Francisco, Criminal Procedure, 1958 ed., Vol.
I, pp. 234, 236. Correctly, Judge Kapunan observed
that as "the civil action is based solely on the felony
committed and of which the offender might be found
guilty, the death of the offender extinguishes the civil
liability." I Kapunan, Revised Penal Code,
Annotated, supra.
Here is the situation obtaining in the present case:
Castillo's criminal liability is out. His civil liability is
sought to be enforced by reason of that criminal
liability. But then, if we dismiss, as we must, the
criminal action and let the civil aspect remain, we will
be faced with the anomalous situation whereby we
will be called upon to clamp civil liability in a case
where the source thereof — criminal liability — does
not exist. And, as was well stated in Bautista, et
al. vs.  Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be
found and held criminally liable in a civil suit," which
solely would remain if we are to divorce it from the
criminal proceeding."
This ruling of the Court of Appeals in the Castillo  case   was adopted by
3
the Supreme Court in the cases of People of the Philippines v. Bonifacio
Alison, et al.,   People of the Philippines v. Jaime Jose, et al.   and People
4 5
of the Philippines v. Satorre   by dismissing the appeal in view of the
6
death of the accused pending appeal of said cases.
As held by then Supreme Court Justice Fernando in the Alison case:
The death of accused-appellant Bonifacio Alison
having been established, and considering that there is
as yet no final judgment in view of the pendency of
 the appeal, the criminal and civil liability of the said
accused-appellant Alison was extinguished by his
death (Art. 89, Revised Penal Code; Reyes' Criminal
Law, 1971 Rev. Ed., p. 717, citing People v. Castillo and
Ofemia C.A., 56 O.G. 4045); consequently, the case
against him should be dismissed.
On the other hand, this Court in the subsequent cases of Buenaventura
Belamala v. Marcelino Polinar   and Lamberto Torrijos v. The Honorable
7
Court of Appeals   ruled differently. In the former, the issue decided by
8
this court was: Whether the civil liability of one accused of physical
injuries who died before final judgment is extinguished by his demise to
the extent of barring any claim therefore against his estate. It was the
contention of the administrator-appellant therein that the death of the
accused prior to final judgment extinguished all criminal and civil
liabilities resulting from the offense, in view of Article 89, paragraph 1
of the Revised Penal Code. However, this court ruled therein:
We see no merit in the plea that the civil liability has
been extinguished, in view of the provisions of the
Civil Code of the Philippines of 1950 (Rep. Act No. 386)
that became operative eighteen years after the
revised Penal Code. As pointed out by the Court
below, Article 33 of the Civil Code establishes a civil
action for damages on account of physical injuries,
entirely separate and distinct from the criminal action.
Art. 33. In cases of defamation, fraud,
and physical injuries, a civil action for
damages, entirely separate and
distinct from the criminal action, may
be brought by the injured party. Such
civil action shall proceed
independently of the criminal
prosecution, and shall require only a
preponderance of evidence.
Assuming that for lack of express reservation,
Belamala's civil action for damages was to be
considered instituted together with the criminal action
still, since both proceedings were terminated without
final adjudication, the civil action of the offended party
under Article 33 may yet be enforced separately.
In Torrijos, the Supreme Court held that:
xxx xxx xxx
It should be stressed that the extinction of civil liability
follows the extinction of the criminal liability under
Article 89, only when the civil liability arises from the
criminal act as its only basis. Stated differently, where
the civil liability does not exist independently of the
criminal responsibility, the extinction of the latter by
death, ipso facto extinguishes the former,  provided, of
course, that death supervenes before final judgment.
The said principle does not apply in instant case
wherein the civil liability springs neither solely nor
originally from the crime itself but from a civil contract
of purchase and sale. (Emphasis ours)
x x x           x x x          x x x
In the above case, the court was convinced that the civil
liability of the accused who was charged with estafa could
likewise trace its genesis to Articles 19, 20 and 21 of the Civil
Code since said accused had swindled the first and second
vendees of the property subject matter of the contract of sale.
It therefore concluded: "Consequently, while the death of the
accused herein extinguished his criminal liability including fine,
his civil liability based on the laws of human relations remains."
Thus it allowed the appeal to proceed with respect to the civil liability
of the accused, notwithstanding the extinction of his criminal liability
due to his death pending appeal of his conviction.
To further justify its decision to allow the civil liability to survive, the
court relied on the following ratiocination: Since Section 21, Rule 3 of
the Rules of Court   requires the dismissal of all money claims against
9
the defendant whose death occurred prior to the final judgment of the
Court of First Instance (CFI), then it can be inferred that actions for
recovery of money may continue to be heard on appeal, when the
death of the defendant supervenes after the CFI had rendered its
judgment. In such case, explained this tribunal, "the name of the
offended party shall be included in the title of the case as plaintiff-
appellee and the legal representative or the heirs of the deceased-
accused should be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from Castillo to
Torrijos, the rule established was that the survival of the civil liability
depends on whether the same can be predicated on sources of
obligations other than delict. Stated differently, the claim for civil
liability is also extinguished together with the criminal action if it were
solely based thereon, i.e., civil liability ex delicto.
However, the Supreme Court in People v. Sendaydiego, et
al.   departed from this long-established principle of law. In this case,
10
accused Sendaydiego was charged with and convicted by the lower
court of malversation thru falsification of public documents.
Sendaydiego's death supervened during the pendency of the appeal of
his conviction.
This court in an unprecedented move resolved to dismiss
Sendaydiego's appeal but only to the extent of his criminal liability. His
civil liability was allowed to survive although it was clear that such
claim thereon was exclusively dependent on the criminal action already
extinguished. The legal import of such decision was for the court to
continue exercising appellate jurisdiction over the entire appeal,
passing upon the correctness of Sendaydiego's conviction despite
dismissal of the criminal action, for the purpose of determining if he is
civilly liable. In doing so, this Court issued a Resolution of July 8, 1977
stating thus:
The claim of complainant Province of Pangasinan for
the civil liability survived Sendaydiego because his
death occurred after final judgment was rendered by
the Court of First Instance of Pangasinan, which
convicted him of three complex crimes of
malversation through falsification and ordered him to
indemnify the Province in the total sum of P61,048.23
(should be P57,048.23).
The civil action for the civil liability is deemed
impliedly instituted with the criminal action in the
absence of express waiver or its reservation in a
separate action (Sec. 1, Rule 111 of the Rules of
Court). The civil action for the civil liability is separate
and distinct from the criminal action (People and
Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz,
107 Phil. 8).
When the action is for the recovery of money and the
defendant dies before final judgment in the Court of
First Instance, it shall be dismissed to be prosecuted in
the manner especially provided in Rule 87 of the Rules
of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a
money judgment had been rendered against him by
the Court of First Instance, the action survives him. It
may be continued on appeal (Torrijos vs. Court of
Appeals, L-40336, October 24, 1975; 67 SCRA 394).
 The accountable public officer may still be civilly liable
for the funds improperly disbursed although he has no
criminal liability (U.S. vs. Elvina, 24 Phil. 230; Philippine
National Bank vs. Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal
of the appeal of the deceased Sendaydiego insofar as
his criminal liability is concerned, the Court Resolved
to continue exercising appellate jurisdiction over his
possible civil liability for the money claims of the
Province of Pangasinan arising from the alleged
criminal acts complained of, as if no criminal case had
been instituted against him, thus making applicable, in
determining his civil liability, Article 30 of the Civil
Code . . . and, for that purpose, his counsel is directed
to inform this Court within ten (10) days of the names
and addresses of the decedent's heirs or whether or
not his estate is under administration and has a duly
appointed judicial administrator. Said heirs or
administrator will be substituted for the deceased
insofar as the civil action for the civil liability is
concerned (Secs. 16 and 17, Rule 3, Rules of Court).
Succeeding cases   raising the identical issue have maintained
11
adherence to our ruling in Sendaydiego; in other words, they were a
reaffirmance of our abandonment of the settled rule that a civil liability
solely anchored on the criminal (civil liability ex delicto) is extinguished
upon dismissal of the entire appeal due to the demise of the accused.
But was it judicious to have abandoned this old ruling? A re-
examination of our decision in Sendaydiego impels us to revert to the
old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego: The resolution
of the civil action impliedly instituted in the criminal action can proceed
irrespective of the latter's extinction due to death of the accused
pending appeal of his conviction, pursuant to Article 30 of the Civil
Code and Section 21, Rule 3 of the Revised Rules of Court.
Article 30 of the Civil Code provides:
When a separate civil action is brought to demand civil
liability arising from a criminal offense, and no criminal
proceedings are instituted during the pendency of the
civil case, a preponderance of evidence shall likewise
be sufficient to prove the act complained of.
Clearly, the text of Article 30 could not possibly lend support to the
ruling in Sendaydiego. Nowhere in its text is there a grant of authority
to continue exercising appellate jurisdiction over the accused's civil
liability ex delicto when his death supervenes during appeal. What
Article 30 recognizes is an alternative and separate civil action which
may be brought to demand civil liability arising from a criminal offense
independently of any criminal action. In the event that no criminal
proceedings are instituted during the pendency of said civil case, the
quantum of evidence needed to prove the criminal act will have to be
that which is compatible with civil liability and that is, preponderance
of evidence and not proof of guilt beyond reasonable doubt. Citing or
invoking Article 30 to justify the survival of the civil action despite
extinction of the criminal would in effect merely beg the question of
whether civil liability ex delicto  survives upon extinction of the criminal
action due to death of the accused during appeal of his conviction. This
is because whether asserted in
the criminal action or in a separate civil action, civil liability ex delicto  is
extinguished by the death of the accused while his conviction is on
appeal. Article 89 of the Revised Penal Code is clear on this matter:
Art. 89. How criminal liability is totally extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
 therefor is extinguished only when the death of the
offender occurs before final judgment;
x x x           x x x          x x x
However, the ruling in Sendaydiego deviated from the expressed intent
of Article 89. It allowed claims for civil liability ex delicto  to survive
by ipso facto treating the civil action impliedly instituted with the
criminal, as one filed under Article 30, as though no criminal
proceedings had been filed but merely a separate civil action. This had
the effect of converting such claims from one which is dependent on
the outcome of the criminal action to an entirely new and separate
one, the prosecution of which does not even necessitate the filing of
criminal proceedings.   One would be hard put to pinpoint the
12
statutory authority for such a transformation. It is to be borne in mind
that in recovering civil liability ex delicto, the same has perforce to be
determined in the criminal action, rooted as it is in the court's
pronouncement of the guilt or innocence of the accused. This is but to
render fealty to the intendment of Article 100 of the Revised Penal
Code which provides that "every person criminally liable for a felony is
also civilly liable." In such cases, extinction of the criminal action due to
death of the accused pending appeal inevitably signifies the
concomitant extinction of the civil liability. Mors Omnia Solvi. Death
dissolves all things.
In sum, in pursuing recovery of civil liability arising from crime, the final
determination of the criminal liability is a condition precedent to the
prosecution of the civil action, such that when the criminal action is
extinguished by the demise of accused-appellant pending appeal
thereof, said civil action cannot survive. The claim for civil liability
springs out of and is dependent upon facts which, if true, would
constitute a crime. Such civil liability is an inevitable consequence of
the criminal liability and is to be declared and enforced in the criminal
proceeding. This is to be distinguished from that which is contemplated
under Article 30 of the Civil Code which refers to the institution of a
separate civil action that does not draw its life from a criminal
proceeding. The Sendaydiego resolution of July 8, 1977, however, failed
to take note of this fundamental distinction when it allowed the
survival of the civil action for the recovery of civil liability ex delicto  by
treating the same as a separate civil action referred to under Article 30.
Surely, it will take more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an independent one
such as that contemplated under Article 30.
Ironically however, the main decision in Sendaydiego did not apply
Article 30, the resolution of July 8, 1977 notwithstanding. Thus, it was
held in the main decision:
Sendaydiego's appeal will be resolved only for the
purpose of showing his criminal liability which is the
basis of the civil liability for which his estate would be
liable. 
13
In other words, the Court, in resolving the issue of his civil liability,
concomitantly made a determination on whether Sendaydiego, on the
basis of evidenced adduced, was indeed guilty beyond reasonable
doubt of committing the offense charged. Thus, it upheld
Sendaydiego's conviction and pronounced the same as the source of his
civil liability. Consequently, although Article 30 was not applied in the
final determination of Sendaydiego's civil liability, there was a
reopening of the criminal action already extinguished which served as
basis for Sendaydiego's civil liability. We reiterate: Upon death of the
accused pending appeal of his conviction, the criminal action is
extinguished inasmuch as there is no longer a defendant to stand as
the accused; the civil action instituted therein for recovery of civil
liability ex delicto is ipso facto  extinguished, grounded as it is on the
criminal.
Section 21, Rule 3 of the Rules of Court was also invoked to serve as
another basis for the Sendaydiego  resolution of July 8, 1977. In citing
Sec. 21, Rule 3 of the Rules of Court, the Court made the inference that
civil actions of the type involved in Sendaydiego consist of money
claims, the recovery of which may be continued on appeal if defendant
dies pending appeal of his conviction by holding his estate liable
therefor. Hence, the Court's conclusion:
"When the action is for the recovery of money" "and
the defendant dies before final judgment in the court
of First Instance, it shall be dismissed to be prosecuted
in the manner especially provided" in Rule 87 of the
Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a
money judgment had been rendered against him by
the Court of First Instance, the action survives him. It
may be continued on appeal.
Sadly, reliance on this provision of law is misplaced. From the
standpoint of procedural law, this course taken in Sendaydiego  cannot
be sanctioned. As correctly observed by Justice Regalado:
xxx xxx xxx
I do not, however, agree with the justification
advanced in both Torrijos  and Sendaydiego  which,
relying on the provisions of Section 21, Rule 3 of the
Rules of Court, drew the strained implication
therefrom that where the civil liability instituted
together with the criminal liabilities had already
passed beyond the judgment of the then Court of First
Instance (now the Regional Trial Court), the Court of
Appeals can continue to exercise appellate jurisdiction
thereover despite the extinguishment of the
component criminal liability of the deceased. This
pronouncement, which has been followed in the
Court's judgments subsequent and consonant
to Torrijos and Sendaydiego, should be set aside and
abandoned as being clearly erroneous and
unjustifiable.
Said Section 21 of Rule 3 is a rule of civil procedure in
ordinary civil actions. There is neither authority nor
justification for its application in criminal procedure to
civil actions instituted together with and as part of
criminal actions. Nor is there any authority in law for
the summary conversion from the latter category of an
ordinary civil action upon the death of the
offender. . . .
Moreover, the civil action impliedly instituted in a criminal proceeding
for recovery of civil liability ex delicto  can hardly be categorized as an
ordinary money claim such as that referred to in Sec. 21, Rule 3
enforceable before the estate of the deceased accused.
Ordinary money claims referred to in Section 21, Rule 3 must be viewed
in light of the provisions of Section 5, Rule 86 involving claims against
the estate, which in Sendaydiego  was held liable for Sendaydiego's civil
liability. "What are contemplated in Section 21 of Rule 3, in relation to
Section 5 of Rule 86,   are contractual money claims while the claims
14
involved in civil liability ex delicto may include even the restitution of
personal or real property."   Section 5, Rule 86 provides an exclusive
15
enumeration of what claims may be filed against the estate. These are:
funeral expenses, expenses for the last illness, judgments for money
and claim arising from contracts, expressed or implied. It is clear that
money claims arising from delict do not form part of this exclusive
enumeration. Hence, there could be no legal basis in (1) treating a civil
action ex delicto as an ordinary contractual money claim referred to in
Section 21, Rule 3 of the Rules of Court and (2) allowing it to survive by
filing a claim therefor before the estate of the deceased accused.
Rather, it should be extinguished upon extinction of the criminal action
engendered by the death of the accused pending finality of his
conviction.
Accordingly, we rule: if the private offended party, upon extinction of
the civil liability ex delicto desires to recover damages from the same
act or omission complained of, he must subject to Section 1, Rule
111   (1985 Rules on Criminal Procedure as amended) file a separate
16
Conversely, if the same act or omission complained of also arises from
contract, the separate civil action must be filed against the estate of
the accused, pursuant to Sec. 5, Rule 86 of the Rules of Court.

civil action, this time predicated not on the felony previously charged
but on other sources of obligation. The source of obligation upon which
the separate civil action is premised determines against whom the
same shall be enforced.
If the same act or omission complained of also arises from quasi-
delict  or may, by provision of law, result in an injury to person or
property (real or personal), the separate civil action must be filed
against the executor or administrator   of the estate of the accused
17
From this lengthy disquisition, we summarize our ruling herein:
1. Death of the accused pending appeal of his conviction extinguishes
his criminal liability as well as the civil liability based solely thereon. As
opined by Justice Regalado, in this regard, "the death of the accused
prior to final judgment terminates his criminal liability and only  the civil
liability directly arising from and based solely on the offense
committed, i.e., civil liability ex delicto  in senso strictiore."

pursuant to Sec. 1, Rule 87 of the Rules of Court: 2. Corollarily, the claim for civil liability survives notwithstanding the
death of accused, if the same may also be predicated on a source of
Sec. 1. Actions which may and which may not be obligation other than delict.   Article 1157 of the Civil Code enumerates
19

brought against executor or administrator. — No these other sources of obligation from which the civil liability may arise
action upon a claim for the recovery of money or debt as a result of the same act or omission:
or interest thereon shall be commenced against the
executor or administrator; but actions to recover real a) Law 20
or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to b) Contracts
recover damages for an injury to person or property,
real or personal,  may be commenced against him. c) Quasi-contracts

This is in consonance with our ruling in Belamala   where we held that,

18
d) . . .
in recovering damages for injury to persons thru an independent civil
action based on Article 33 of the Civil Code, the same must be filed
e) Quasi-delicts
against the executor or administrator of the estate of deceased
accused and not against the estate under Sec. 5, Rule 86 because this
3. Where the civil liability survives, as explained in Number 2 above, an
rule explicitly limits the claim to those for funeral expenses, expenses
action for recovery therefor may be pursued but only by way of filing a
for the last sickness of the decedent, judgment for money and claims
separate civil action and subject to Section 1, Rule 111 of the 1985
arising from contract, express or implied. Contractual money claims, we
Rules on Criminal Procedure as amended. This separate civil action may
stressed, refers only to  purely personal obligations other than those
be enforced either against the executor/administrator or the estate of
which have their source in delict or tort.
the accused, depending on the source of obligation upon which the
same is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his
right to file this separate civil action by prescription, in cases where
during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil
action. In such case, the statute of limitations on the civil liability is
deemed interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155   of the Civil Code, that
21
should thereby avoid any apprehension on a possible privation of right
by prescription. 22
Applying this set of rules to the case at bench, we hold that the death
of appellant Bayotas extinguished his criminal liability and the civil
liability based solely on the act complained of, i.e., rape. Consequently,
the appeal is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with
costs de oficio.
SO ORDERED.
G.R. No. 169588               October 7, 2013
JADEWELL PARKING SYSTEMS CORPORATION represented by its
manager and authorized representative Norma Tan, Petitioner,
vs.
HON. JUDGE NELSON F. LIDUA SR., Presiding Judge of The Municipal
Trial Court Branch 3, Baguio City, BENEDICTO BALAJADIA, EDWIN
ANG, "JOHN DOES" and "PETER DOES" Respondents.
DECISION
LEONEN, J.:
We are asked to rule on this Petition for Review on Certiorari under
Rule 45 of the Rules of Court, praying that the assailed Decision of
Branch 7 of the Regional Trial Court of Baguio City and Order dated
August 15, 2005 be reversed and that Criminal Case Nos. 112934 and
112935 be ordered reinstated and prosecuted before the Municipal
Trial Court of Baguio City.
Petitioner Jadewell Parking Systems Corporation is a private parking
operator duly authorized to operate and manage the parking spaces in
Baguio City pursuant to City Ordinance 003-2000. It is also authorized
under Section 13 of the City Ordinance to render any motor vehicle
immobile by placing its wheels in a clamp if the vehicle is illegally
parked.1
According to the Resolution of the Office of the Provincial Prosecutor,
San Fernando City, La Union, the facts leading to the filing of the
Informations are the following:
Jadewell Parking Systems Corporation (Jadewell), thru [sic] its General
Manager Norma Tan and Jadewell personnel Januario S. Ulpindo and
Renato B. Dulay alleged in their affidavit-complaint that on May 17,
2003, the respondents in I.S No. 2003-1996 Edwin Ang, Benedicto
Balajadia and John Doe dismantled, took and carried away the clamp
attached to the left front wheel of a Mitsubishi Adventure with Plate
No. WRK 624 owned by Edwin Ang. Accordingly, the car was then
illegally parked and left unattended at a Loading and Unloading Zone.
The value of the clamp belonging to Jadewell which was allegedly
forcibly removed with a piece of metal is ₱26,250.00. The fines of
₱500.00 for illegal parking and the declamping fee of ₱500.00 were
also not paid by the respondents herein.
In I.S. No., 2003-1997, Jadewell thru [sic] its General Manager Norina C.
Tan, Renato B. Dulay and Ringo Sacliwan alleged in their affidavit-
complaint that on May 7, 2003, along Upper Mabini Street, Baguio City,
herein respondents Benedicto Balajadia, Jeffrey Walan and two (2)
John Does forcibly removed the clamp on the wheel of a Nissan Cefiro
car with Plate No. UTD 933, belonging to Jeffrey Walan which was then
considered illegally parked for failure to pay the prescribed parking fee.
Such car was earlier rendered immobile by such clamp by Jadewell
personnel. After forcibly removing the clamp, respondents took and
carried it away depriving its owner, Jadewell, its use and value which is
₱26,250.00. According to complainants, the fine of ₱500.00 and the
declamping fee of ₱500.00 were not paid by the respondents.2
The incident resulted in two cases filed by petitioner and respondents
against each other. Petitioner Jadewell filed two cases against
respondents: Robbery under I.S. Nos. 2003-1996 and 2003-1997.
Petitioner filed an Affidavit-Complaint against respondents Benedicto
Balajadia, Jeffrey Walan, and three (3) John Does, one of whom was
eventually identified as respondent Ramon Ang. The Affidavit-
Complaint was filed with the Office of the City Prosecutor of Baguio City
on May 23, 2003.3 A preliminary investigation took place on May 28,
2003. Respondent Benedicto Balajadia likewise filed a case charging
Jadewell president, Rogelio Tan, and four (4) of Jadewell's employees
with Usurpation of Authority/Grave Coercion in I.S. No. 2003-1935.
In his Counter-affidavit for the two cases he filed for himself and on
behalf of his co-respondents, respondent Benedicto Balajadia denied
that his car was parked illegally. He admitted that he removed the
clamp restricting the wheel of his car since he alleged that the placing
of a clamp on the wheel of the vehicle was an illegal act. He alleged
further that he removed the clamp not to steal it but to remove the
vehicle from its clamp so that he and his family could continue using
the car. He also confirmed that he had the clamp with him, and he
intended to use it as a piece of evidence to support the Complaint he
filed against Jadewell.4
In the Resolution5 of the Office of the Provincial Prosecutor of San
Fernando City, La Union, Acting City Prosecutor Mario Anacleto Banez
found probable cause to file a case of Usurpation of Authority against
the petitioner. Regarding the case of Robbery against respondents,
Prosecutor Banez stated that:
We find no probable cause to charge respondents in these two (2)
cases for the felony of Robbery. The elements of Robbery, specifically
the intent to gain and force upon things are absent in the instant cases,
thereby negating the existence of the crime.
xxxx
We, however, respectfully submit that the acts of respondents in
removing the wheel clamps on the wheels of the cars involved in these
cases and their failure to pay the prescribed fees were in violation of
Sec. 21 of Baguio City Ordinance No. 003-2000 which prescribes fines
and penalties for violations of the provisions of such ordinance.
Certainly, they should not have put the law into their own hands.
(Emphasis supplied)
WHEREFORE, premises considered, there is probable cause against all
the respondents, except Jeffrey Walan or Joseph Walan (who has been
dragged into this controversy only by virtue of the fact that he was still
the registered owner of the Nissan Cefiro car) for violation of Section
21 of City Ord. No. 003-2000 in both cases and we hereby file the
corresponding informations against them in Court.6
Prosecutor Banez issued this Resolution on July 25, 2003.
On October 2, 2003, two criminal Informations were filed with the
Municipal Trial Court of Baguio City dated July 25, 2003, stating:
That on May 17, 2003 at Baguio City and within the jurisdiction of this
Honorable Court, the above-named accused with unity of action and
concerted design, did then and there, with unity of action and
concerted design, willfully, unlawfully and feloniously forcibly
dismantled [sic] and took [sic] an immobilizing clamp then attached to
the left front wheel of a Mitsubishi Adventure vehicle with Plate No.
WRK 624 belonging to Edwin Ang which was earlier rendered
immobilized by such clamp by Jadewell Personnel's for violation of the
Baguio City ordinance No. 003-2600 to the damage and prejudice of
private complainant Jadewell Parking System Corporation (Jadewell)
which owns such clamp worth ₱26,250.00 and other consequential
damages.
CONTRARY TO LAW,
San Fernando City, La Union for Baguio City, this 25th day of July 2003.7
The cases were docketed as Criminal Case Nos. 112934 and 112935
with the Municipal Trial Court of Baguio City, Branch 3. Respondent
Benedicto Balajadia and the other accused through their counsel
Paterno Aquino filed a January 20, 2004 Motion to Quash and/or
Manifestation8 on February 2, 2004. The Motion to Quash and/or
Manifestation sought the quashal of the two Informations on the
following grounds: extinguishment of criminal action or liability due to
prescription; failure of the Information to state facts that charged an
offense; and the imposition of charges on respondents with more than
one offense.
In their Motion to Quash, respondents argued that:
1. The accused in this case are charged with violation of Baguio
City Ordinance No. 003-2000.
2. Article 89 of the Revised Penal [sic] provides that criminal
liability is totally extinguished by prescription of the crime.
3. Act No. 3326, as amended by Act No. 3763, provides:
"Section 1. x x x Violations penalized by municipal ordinances
shall prescribed [sic] after two months."
4. As alleged in the Information, the offense charged in this
case was committed on May 7, 2003. 5. As can be seen from
the right hand corner of the Information, the latter was filed
with this Honorable Court on October 2, 2003, almost five (5)
months after the alleged commission of the offense charged.
Hence, criminal liability of the accused in this case, if any, was
already extinguished by prescription when the Information was
filed.9
In an Order10 dated February 10, 2004, respondent Judge Nelson F.
Lidua, Sr., Presiding Judge of the Municipal Trial Court of Baguio City,
Branch 3, granted the accused's Motion to Quash and dismissed the
cases.
Petitioner filed a Motion for Reconsideration on February 27, 2004
responding to the February 10, 2004 Order11 to argue among other
points that:
6.b. For another, the offenses charged have not yet prescribed. Under
the law, the period of prescription of offenses shall be interrupted by
the filing of the complaint or information. While it may be true that the
Informations in these cases have been filed only on October 2, 2003,
the private complainant has, however, filed its criminal complaint on
May 23, 2003, well within the prescribed period.12
Respondents filed their Opposition 13 on March 24, 2004, and petitioner
filed a Reply14 on April 1, 2004.
The respondent judge released a Resolution 15 dated April 16, 2004
upholding the Order granting respondents' Motion to Quash. The
Resolution held that:
For the guidance of the parties, the Court will make an extended
resolution on one of the ground [sic] for the motion to quash, which is
that the criminal action has been extinguished on grounds of
prescription.
These offenses are covered by the Rules on Summary Procedure being
alleged violations of City Ordinances.
Under Section 9 of the Rule [sic] on Summary Procedure, the running of
the prescriptive period shall be halted on the date the case is filed in
Court and not on any date before that (Zaldivia vs. Reyes, Jr. G.R. No.
102342, July 3, 1992, En Banc).
In case of conflict, the Rule on Summary Procedure as the special law
prevails over Sec. 1 of Rule 110 of the Rules on Criminal Procedure and
also Rule 110 of the Rules of Criminal Procedure must yield to Act No.
3326 or "AN ACT TO ESTABLISH PERIODS OF PRESCRIPTION FOR
VIOLATIONS PENALIZED BY SPECIAL ACTS AND MUNICIPAL
ORDINANCES AND TO PROVIDE WHEN PRESCRIPTION SHALL BEGIN TO
RUN" (Ibid).
Petitioner then filed a Petition16 for Certiorari under Rule 65 with the
Regional Trial Court of Baguio City. The case was raffled to Branch 7 of
the Regional Trial Court of Baguio City. Petitioners contended that the
respondent judge committed grave abuse of discretion amounting to
lack or excess of jurisdiction in dismissing Criminal Case Nos. 112934
and 112935 on the ground of prescription. Petitioners argued that the
respondent judge ruled erroneously saying that the prescriptive period
for the offenses charged against the private respondents was halted by
the filing of the Complaint/Information in court and not when the
Affidavit-Complaints were filed with the Office of the City Prosecutor of
Baguio City. Petitioner cited Section 1 of Rule 110 of the Rules on
Criminal Procedure:
x x x "criminal actions shall be instituted x x x in x x x other chartered
cities, the complaint shall be filed with the office of the prosecutor
unless otherwise provided in their charter" and the last paragraph
thereof states that "the institution of the criminal action shall interrupt
the running of the period of prescription of the offense charged unless
otherwise provided in special laws."17
Petitioner contended further that:
the filing of the criminal complaint with the Office of the City
Prosecutor of Baguio City, not the filing of the criminal information
before this Honorable Court, is the reckoning point in determining
whether or not the criminal action in these cases had prescribed.
xxxx
The offenses charged in Criminal Case Nos. 112934 and 112935 are
covered by the Revised Rules on Summary Procedure, not by the old
Rules on Summary Procedure. Considering that the offenses charged
are for violations of a City Ordinance, the criminal cases can only be
commenced by informations. Thus, it was only legally and procedurally
proper for the petitioner to file its complaint with the Office of the City
Prosecutor of Baguio City as required by Section 11 of the new Rules on
Summary Procedure, these criminal cases "shall be commenced only by
information." These criminal cases cannot be commenced in any other
way.
Moreover, the ruling of the Supreme Court in Zaldivia vs. Reyes cited in
the assailed Resolution does not apply in this case. The offense charged
in Zaldivia is a violation of municipal ordinance in which case, the
complaint should have been filed directly in court as required by
Section 9 of the old Rules on Summary Procedure. On the other hand,
Criminal Case Nos. 112934 and 112935 are for violations of a city
ordinance and as aforestated, "shall be commenced only by
information."18
Thus, petitioner contended that the filing of the criminal complaint
with the Office of the City Prosecutor stopped the running of the two-
month prescriptive period. Hence, the offenses charged have not
prescribed.
In their Comment,19 respondents maintained that the respondent judge
did not gravely abuse his discretion. They held that Section 2 of Act No.
3326, as amended, provides that:
Sec. 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same be not known at the time,
from the discovery thereof and the institution of judicial proceeding for
its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the
proceedings are dismissed for reasons not constituting
jeopardy.20 (Emphasis supplied)
Respondents argued that Zaldivia v. Reyes21 held that the proceedings
mentioned in Section 2 of Act No. 3326, as amended, refer to judicial
proceedings . Thus, this Court, in Zaldivia, held that the filing of the
Complaint with the Office of the Provincial Prosecutor was not a judicial
proceeding. The prescriptive period commenced from the alleged date
of the commission of the crime on May 7, 2003 and ended two months
after on July 7, 2003. Since the Informations were filed with the
Municipal Trial Court on October 2, 2003, the respondent judge did not
abuse its discretion in dismissing Criminal Case Nos. 112934 and
112935.
In a Decision dated April 20, 2005, the Regional Trial Court of Baguio
City Branch 7, through Judge Clarence F. Villanueva, dismissed the
Petition for Certiorari. The Regional Trial Court held that, since cases of
city ordinance violations may only be commenced by the filing of an
Information, then the two-month prescription period may only be
interrupted by the filing of Informations (for violation of City Ordinance
003-2000) against the respondents in court. The Regional Trial Court of
Baguio City, Branch 7, ruled in favor of the respondents and upheld the
respondent judge’s Order dated February 10, 2004 and the Resolution
dated April 16, 2004.
Petitioners then filed a May 17, 2005 Motion for Reconsideration which
was denied by the Regional Trial Court in an August 15, 2005 Order.
Hence, this Petition.
The principal question in this case is whether the filing of the Complaint
with the Office of the City Prosecutor on May 23, 2003 tolled the
prescription period of the commission of the offense charged against
respondents Balajadia, Ang, "John Does," and "Peter Does."
Petitioner contends that the prescription period of the offense in Act
No. 3326, as amended by Act No. 3763, does not apply because
respondents were charged with the violation of a city ordinance and
not a municipal ordinance. In any case, assuming arguendo that the
prescriptive period is indeed two months, filing a Complaint with the
Office of the City Prosecutor tolled the prescription period of two
months. This is because Rule 110 of the Rules of Court provides that, in
Manila and in other chartered cities, the Complaint shall be filed with
the Office of the Prosecutor unless otherwise provided in their
charters.
In their Comment,22 respondents maintain that respondent Judge Lidua
did not err in dismissing the cases based on prescription. Also,
respondents raise that the other grounds for dismissal they raised in
their Motion to Quash, namely, that the facts charged constituted no
offense and that respondents were charged with more than one
offense, were sustained by the Metropolitan Trial Court. Also,
respondents argue that petitioner had no legal personality to assail the
Orders, since Jadewell was not assailing the civil liability of the case but
the assailed Order and Resolution. This was contrary to the ruling in
People v. Judge Santiago23 which held that the private complainant may
only appeal the civil aspect of the criminal offense and not the crime
itself.
In the Reply,24 petitioner argues that the respondent judge only
dismissed the case on the ground of prescription, since the Resolution
dated April 16, 2004 only cited that ground. The Order dated February
10, 2004 merely stated but did not specify the grounds on which the
cases were dismissed. Petitioner also maintains that the proceedings
contemplated in Section 2 of Act No. 3326 must include the preliminary
investigation proceedings before the National Prosecution Service in
light of the Rules on Criminal Procedure 25 and Revised Rules on
Summary Procedure.
Lastly, petitioner maintains that it did have legal personality, since in a
Petition for Certiorari, "persons aggrieved x x x may file a verified
petition"26 before the court.
The Petition is denied.
The resolution of this case requires an examination of both the
substantive law and the procedural rules governing the prosecution of
the offense. With regard to the prescription period, Act No. 3326, as
amended, is the only statute that provides for any prescriptive period
for the violation of special laws and municipal ordinances. No other
special law provides any other prescriptive period, and the law does
not provide any other distinction. Petitioner may not argue that Act No.
3326 as amended does not apply.
In Romualdez v. Hon. Marcelo,27 this Court defined the parameters of
prescription:
In resolving the issue of prescription of the offense charged, the
following should be considered: (1) the period of prescription for the
offense charged; (2) the time the period of prescription starts to run;
and (3) the time the prescriptive period was interrupted. 28 (Citation
omitted)
With regard to the period of prescription, it is now without question
that it is two months for the offense charged under City Ordinance 003-
2000.
The commencement of the prescription period is also governed by
statute. Article 91 of the Revised Penal Code reads:
Art. 91. Computation of prescription of offenses. — The period of
prescription shall commence to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted by the filing of the complaint or information, and
shall commence to run again when such proceedings terminate without
the accused being convicted or acquitted, or are unjustifiably stopped
for any reason not imputable to him.
The offense was committed on May 7, 2003 and was discovered by the
attendants of the petitioner on the same day. These actions effectively
commenced the running of the prescription period.
The procedural rules that govern this case are the 1991 Revised Rules
on Summary Procedure.
SECTION 1. Scope – This rule shall govern the summary procedure in
the Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, and the Municipal Circuit Trial Courts in the
following cases falling within their jurisdiction:
xxxx
B. Criminal Cases:
(1) Violations of traffic laws, rules and regulations;
(2) Violations of the rental law;
(3) Violations of municipal or city ordinances (Emphasis
supplied)
Section 11 of the Rules provides that:
Sec. 11. How commenced. — The filing of criminal cases falling within
the scope of this Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in Chartered
Cities, such cases shall be commenced only by information, except
when the offense cannot be prosecuted de officio.
The Local Government Code provides for the classification of cities.
Section 451 reads:
SEC. 451. Cities, Classified. – A city may either be component or highly
urbanized: Provided, however, that the criteria established in this Code
shall not affect the classification and corporate status of existing cities.
Independent component cities are those component cities whose
charters prohibit their voters from voting for provincial elective
officials. Independent component cities shall be independent of the
province.
Cities in the Philippines that were created by law can either be highly
urbanized cities or component cities. An independent component city
has a charter that proscribes its voters from voting for provincial
elective officials. It stands that all cities as defined by Congress are
chartered cities. In cases as early as United States v. Pascual Pacis, 29 this
Court recognized the validity of the Baguio Incorporation Act or Act No.
1963 of 1909, otherwise known as the charter of Baguio City.
As provided in the Revised Rules on Summary Procedure, only the filing
of an Information tolls the prescriptive period where the crime charged
is involved in an ordinance. The respondent judge was correct when he
applied the rule in Zaldivia v. Reyes.
In Zaldivia v. Reyes, the violation of a municipal ordinance in Rodriguez,
Rizal also featured similar facts and issues with the present case. In that
case, the offense was committed on May 11, 1990. The Complaint was
received on May 30, 1990, and the Information was filed with the
Metropolitan Trial Court of Rodriguez on October 2, 1990. This Court
ruled that:
As it is clearly provided in the Rule on Summary Procedure that among
the offenses it covers are violations of municipal or city ordinances, it
should follow that the charge against the petitioner, which is for
violation of a municipal ordinance of Rodriguez, is governed by that
rule and not Section 1 of Rule 110.
Where paragraph (b) of the section does speak of "offenses falling
under the jurisdiction of the Municipal Trial Courts and Municipal
Circuit Trial Courts," the obvious reference is to Section 32(2) of B.P.
No. 129, vesting in such courts:
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment of not exceeding four years and two months, or a fine of
not more than four thousand pesos, or both such fine and
imprisonment, regardless of other imposable accessory or other
penalties, including the civil liability arising from such offenses or
predicated thereon, irrespective of kind, nature, value, or amount
thereof; Provided, however, That in offenses involving damage to
property through criminal negligence they shall have exclusive original
jurisdiction where the imposable fine does not exceed twenty thousand
pesos.
These offenses are not covered by the Rules on Summary Procedure.
Under Section 9 of the Rules on Summary Procedure, "the complaint or
information shall be filed directly in court without need of a prior
preliminary examination or preliminary investigation." Both parties
agree that this provision does not prevent the prosecutor from
conducting a preliminary investigation if he wants to. However, the
case shall be deemed commenced only when it is filed in court,
whether or not the prosecution decides to conduct a preliminary
investigation. This means that the running of the prescriptive period
shall be halted on the date the case is actually filed in court and not on
any date before that.
This interpretation is in consonance with the afore-quoted Act No.
3326 which says that the period of prescription shall be suspended
"when proceedings are instituted against the guilty party." The
proceedings referred to in Section 2 thereof are "judicial proceedings,"
contrary to the submission of the Solicitor General that they include
administrative proceedings. His contention is that we must not
distinguish as the law does not distinguish. As a matter of fact, it does.
At any rate, the Court feels that if there be a conflict between the Rule
on Summary Procedure and Section 1 of Rule 110 of the Rules on
Criminal Procedure, the former should prevail as the special law. And if
there be a conflict between Act No. 3326 and Rule 110 of the Rules on
Criminal Procedure, the latter must again yield because this Court, in
the exercise of its rule-making power, is not allowed to "diminish,
increase or modify substantive rights" under Article VIII, Section 5(5) of
the Constitution. Prescription in criminal cases is a substantive right.30
Jurisprudence exists showing that when the Complaint is filed with the
Office of the Prosecutor who then files the Information in court, this
already has the effect of tolling the prescription period. The recent
People v. Pangilinan31 categorically stated that Zaldivia v. Reyes is not
controlling as far as special laws are concerned. Pangilinan referred to
other cases that upheld this principle as well. However, the doctrine of
Pangilinan pertains to violations of special laws but not to ordinances.
There is no distinction between the filing of the Information
contemplated in the Rules of Criminal Procedure and in the Rules of
Summary Procedure. When the representatives of the petitioner filed
the Complaint before the Provincial Prosecutor of Baguio, the
prescription period was running. It continued to run until the filing of
the Information. They had two months to file the Information and
institute the judicial proceedings by filing the Information with the
Municipal Trial Court. The conduct of the preliminary investigation, the
original charge of Robbery, and the subsequent finding of the violation
of the ordinance did not alter the period within which to file the
Information. Respondents were correct in arguing that the petitioner
only had two months from the discovery and commission of the
offense before it prescribed within which to file the Information with
the Municipal Trial Court.
Unfortunately, when the Office of the Prosecutor filed the Informations
on October 5, 2003, the period had already prescribed. Thus,
respondent Judge Nestor Lidua, Sr. did not err when he ordered the
dismissal of the case against respondents. According to the Department
of Justice – National Prosecutors Service Manual for Prosecutors, an
Information is defined under Part I, Section 5 as:
SEC. 5. Information. - An information is the accusation in writing
charging a person with an offense, subscribed by the prosecutor, and
filed with the court. The information need not be placed under oath by
the prosecutor signing the same.
The prosecutor must, however, certify under oath that –
a) he has examined the complainant and his witnesses;
b) there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof;
c) the accused was informed of the complaint and of the
evidence submitted against him; and
d) the accused was given an opportunity to submit
controverting evidence.
As for the place of the filing of the Information, the Manual also
provides that:
SEC. 12. Place of the commission of offense. - The complaint or
information is sufficient if it states that the crime charged was
committed or some of the ingredients thereof occurred at some place
within the jurisdiction of the court, unless the particular place in which
the crime was committed is an essential element of the crime, e.g. in a
prosecution for violation of the provision of the Election Code which
punishes the carrying of a deadly weapon in a "polling place," or if it is
necessary to identify the offense charged, e.g., the domicile in the
offense of "violation of domicile."
Finally, as for the prescription period, the Manual provides that:
SEC. 20. How Period of Prescription Computed and Interrupted. - For an
offense penalized under the Revised Penal Code, the period of
prescription commences to run from the day on which the crime is
discovered by the offended party, the authorities, or their agents, and
shall be interrupted:
a) by the filing of the complaint with the Office of the
City/Provincial Prosecutor; or with the Office of the
Ombudsman; or
b) by the filing of the complaint or information with the court
even if it is merely for purposes of preliminary examination or
investigation, or even if the court where the complaint or
information is filed cannot try the case on its merits.
However, for an offense covered by the Rules on Summary Procedure,
the period of prescription is interrupted only by the filing of the
complaint or information in court.
xxxx
For violation of a special law or ordinance, the period of prescription
shall commence to run from the day of the commission of the violation,
and if the same is not known at the time, from the discovery and the
institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted only by the filing of the complaint
or information in court and shall begin to run again if the proceedings
are dismissed for reasons not constituting double jeopardy. (Emphasis
supplied).1âwphi1
Presidential Decree No. 127532 reorganized the Department of Justice’s
Prosecution Staff and established Regional State Prosecution Offices.
These Regional State Prosecution Offices were assigned centers for
particular regions where the Informations will be filed. Section 6
provides that the area of responsibility of the Region 1 Center located
in San Fernando, La Union includes Abra, Benguet, Ilocos Norte, Ilocos
Sur, La Union, Mt. Province, Pangasinan, and the cities of Baguio,
Dagupan, Laoag, and San Carlos.
The Regional Prosecutor for Region 1 or his/her duly assigned
prosecutor was designated to file the Information within the two-
month period provided for in Act No. 3326, as amended. 1âwphi1
The failure of the prosecutor to seasonably file the Information is
unfortunate as it resulted in the dismissal of the case against the
private respondents. It stands that the doctrine of Zaldivia is applicable
to ordinances and their prescription period. It also upholds the
necessity of filing the Information in court in order to toll the period.
Zaldivia also has this to say concerning the effects of its ruling:
The Court realizes that under the above interpretation, a crime may
prescribe even if the complaint is filed seasonably with the prosecutor's
office if, intentionally or not, he delays the institution of the necessary
judicial proceedings until it is too late. However, that possibility should
not justify a misreading of the applicable rules beyond their obvious
intent as reasonably deduced from their plain language.
The remedy is not a distortion of the meaning of the rules but a
rewording thereof to prevent the problem here sought to be
corrected.33
WHEREFORE the Petition is DENIED.
SO ORDERED.
G.R. No. 167571             November 25, 2008
LUIS PANAGUITON, JR., petitioner
vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G.
CAWILI, respondents.
DECISION
TINGA, J.:
This is a Petition for Review 1 of the resolutions of the Court of Appeals
dated 29 October 2004 and 21 March 2005 in CA G.R. SP No. 87119, which
dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for certiorari and his
subsequent motion for reconsideration.2
The facts, as culled from the records, follow.
In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money
amounting to P1,979,459.00 from petitioner. On 8 January 1993, Cawili
and his business associate, Ramon C. Tongson (Tongson), jointly issued in
favor of petitioner three (3) checks in payment of the said loans.
Significantly, all three (3) checks bore the signatures of both Cawili and
Tongson. Upon presentment for payment on 18 March 1993, the checks
were dishonored, either for insufficiency of funds or by the closure of the
account. Petitioner made formal demands to pay the amounts of the
checks upon Cawili on 23 May 1995 and upon Tongson on 26 June 1995,
but to no avail.3
On 24 August 1995, petitioner filed a complaint against Cawili and
Tongson4 for violating Batas Pambansa Bilang 22 (B.P. Blg. 22) 5 before the
Quezon City Prosecutor's Office. During the preliminary investigation, only
Tongson appeared and filed his counter-affidavit. 6 Tongson claimed that he
had been unjustly included as party-respondent in the case since petitioner
had lent money to Cawili in the latter's personal capacity. Moreover, like
petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was
offered to be an officer of Roma Oil Corporation. He averred that he was
not Cawili's business associate; in fact, he himself had filed several criminal
cases against Cawili for violation of B.P. Blg. 22. Tongson denied that he
had issued the bounced checks and pointed out that his signatures on the
said checks had been falsified.
To counter these allegations, petitioner presented several documents
showing Tongson's signatures, which were purportedly the same as the
those appearing on the checks. 7 He also showed a copy of an affidavit of
adverse claim wherein Tongson himself had claimed to be Cawili's business
associate.8
In a resolution dated 6 December 1995, 9 City Prosecutor III Eliodoro V. Lara
found probable cause only against Cawili and dismissed the charges against
Tongson. Petitioner filed a partial appeal before the Department of Justice
(DOJ) even while the case against Cawili was filed before the proper court.
In a letter-resolution dated 11 July 1997, 10 after finding that it was possible
for Tongson to co-sign the bounced checks and that he had deliberately
altered his signature in the pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito R. Zuño directed the City
Prosecutor of Quezon City to conduct a reinvestigation of the case against
Tongson and to refer the questioned signatures to the National Bureau of
Investigation (NBI).
Tongson moved for the reconsideration of the resolution, but his motion
was denied for lack of merit.
On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP
Sampaga) dismissed the complaint against Tongson without referring the
matter to the NBI per the Chief State Prosecutor's resolution. In her
resolution,11 ACP Sampaga held that the case had already prescribed
pursuant to Act No. 3326, as amended,12 which provides that violations
penalized by B.P. Blg. 22 shall prescribe after four (4) years. In this case, the
four (4)-year period started on the date the checks were dishonored, or on
20 January 1993 and 18 March 1993. The filing of the complaint before the
Quezon City Prosecutor on 24 August 1995 did not interrupt the running of
the prescriptive period, as the law contemplates judicial, and not
administrative proceedings. Thus, considering that from 1993 to 1998,
more than four (4) years had already elapsed and no information had as
yet been filed against Tongson, the alleged violation of B.P. Blg. 22 imputed
to him had already prescribed.13 Moreover, ACP Sampaga stated that the
order of the Chief State Prosecutor to refer the matter to the NBI could no
longer be sanctioned under Section 3, Rule 112 of the Rules of Criminal
Procedure because the initiative should come from petitioner himself and
not the investigating prosecutor.14 Finally, ACP Sampaga found that
Tongson had no dealings with petitioner. 15
Petitioner appealed to the DOJ. But the DOJ, through Undersecretary
Manuel A.J. Teehankee, dismissed the same, stating that the offense had
already prescribed pursuant to Act No. 3326. 16 Petitioner filed a motion for
reconsideration of the DOJ resolution. On 3 April 2003, 17 the DOJ, this time
through then Undersecretary Ma. Merceditas N. Gutierrez, ruled in his
favor and declared that the offense had not prescribed and that the filing
of the complaint with the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the
City Prosecutor of Quezon City was directed to file three (3) separate
informations against Tongson for violation of B.P. Blg. 22. 19 On 8 July 2003,
the City Prosecutor's Office filed an information 20 charging petitioner with
three (3) counts of violation of B.P. Blg. 22.21
However, in a resolution dated 9 August 2004, 22 the DOJ, presumably
acting on a motion for reconsideration filed by Tongson, ruled that the
subject offense had already prescribed and ordered "the withdrawal of the
three (3) informations for violation of B.P. Blg. 22" against Tongson. In
justifying its sudden turnabout, the DOJ explained that Act No. 3326
applies to violations of special acts that do not provide for a prescriptive
period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does
not provide for the prescription of the offense it defines and punishes, Act
No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which
governs the prescription of offenses penalized thereunder. 23 The DOJ also
cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled
that the proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutor's office.
Petitioner thus filed a petition for certiorari 25 before the Court of Appeals
assailing the 9 August 2004 resolution of the DOJ. The petition was
dismissed by the Court of Appeals in view of petitioner's failure to attach a
proper verification and certification of non-forum
shopping. The Court of Appeals also noted that the 3 April 2003 resolution
of the DOJ attached to the petition is a mere photocopy. 26 Petitioner
moved for the reconsideration of the appellate court's resolution,
attaching to said motion an amended Verification/Certification of Non-
Forum Shopping.27 Still, the Court of Appeals denied petitioner's motion,
stating that subsequent compliance with the formal requirements would
not per se warrant a reconsideration of its resolution. Besides, the Court of
Appeals added, the petition is patently without merit and the questions
raised therein are too unsubstantial to require consideration. 28
In the instant petition, petitioner claims that the Court of Appeals
committed grave error in dismissing his petition on technical grounds and
in ruling that the petition before it was patently without merit and the
questions are too unsubstantial to require consideration.
The DOJ, in its comment,29 states that the Court of Appeals did not err in
dismissing the petition for non-compliance with the Rules of Court. It also
reiterates that the filing of a complaint with the Office of the City
Prosecutor of Quezon City does not interrupt the running of the
prescriptive period for violation of B.P. Blg. 22. It argues that under B.P.
Blg. 22, a special law which does not provide for its own prescriptive
period, offenses prescribe in four (4) years in accordance with Act No.
3326.
Cawili and Tongson submitted their comment, arguing that the Court of
Appeals did not err in dismissing the petition for certiorari. They claim that
the offense of violation of B.P. Blg. 22 has already prescribed per Act No.
3326. In addition, they claim that the long delay, attributable to petitioner
and the State, violated their constitutional right to speedy disposition of
cases.30
The petition is meritorious.
First on the technical issues.
Petitioner submits that the verification attached to his petition before the
Court of Appeals substantially complies with the rules, the verification
being intended simply to secure an assurance that the allegations in the
pleading are true and correct and not a product of the imagination or a
matter of speculation. He points out that this Court has held in a number of
cases that a deficiency in the verification can be excused or dispensed with,
the defect being neither jurisdictional nor always fatal. 31
Indeed, the verification is merely a formal requirement intended to secure
an assurance that matters which are alleged are true and correct–the court
may simply order the correction of unverified pleadings or act on them and
waive strict compliance with the rules in order that the ends of justice may
be served,32 as in the instant case. In the case at bar, we find that by
attaching the pertinent verification to his motion for reconsideration,
petitioner sufficiently complied with the verification requirement.
Petitioner also submits that the Court of Appeals erred in dismissing the
petition on the ground that there was failure to attach a certified true copy
or duplicate original of the 3 April 2003 resolution of the DOJ. We agree. A
plain reading of the petition before the
Court of Appeals shows that it seeks the annulment of the DOJ resolution
dated 9 August 2004,33 a certified true copy of which was attached as
Annex "A."34 Obviously, the Court of Appeals committed a grievous
mistake.
Now, on the substantive aspects.
Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving
the violation of a municipal ordinance, in declaring that the prescriptive
period is tolled only upon filing of the information in court. According to
petitioner, what is applicable in this case is Ingco v.
Sandiganbayan,36 wherein this Court ruled that the filing of the complaint
with the fiscal's office for preliminary investigation suspends the running of
the prescriptive period. Petitioner also notes that the Ingco case similarly
involved the violation of a special law, Republic Act (R.A.) No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, petitioner
notes.37 He argues that sustaining the DOJ's and the Court of Appeals'
pronouncements would result in grave injustice to him since the delays in
the present case were clearly beyond his control.38
There is no question that Act No. 3326, appropriately entitled An Act to
Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin, is the law
applicable to offenses under special laws which do not provide their own
prescriptive periods. The pertinent provisions read:
Section 1. Violations penalized by special acts shall, unless
otherwise provided in such acts, prescribe in accordance with the
following rules: (a) x x x; (b) after four years for those punished by
imprisonment for more than one month, but less than two years;
(c) x x x
Sec. 2. Prescription shall begin to run from the day of the
commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and the institution
of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are
instituted against the guilty person, and shall begin to run again if
the proceedings are dismissed for reasons not constituting
jeopardy.
We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22.
An offense under B.P. Blg. 22 merits the penalty of imprisonment
of not less than thirty (30) days but not more than one year or by
a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22
 prescribes in four (4) years from the commission of the offense or,
if the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of
a case in court can toll the running of the prescriptive period.
It must be pointed out that when Act No. 3326 was passed on 4 December
1926, preliminary investigation of criminal offenses was conducted by
justices of the peace, thus, the phraseology in the law, "institution of
judicial proceedings for its investigation and punishment," 39 and the
prevailing rule at the time was that once a complaint is filed with the
justice of the peace for preliminary investigation, the prescription of the
offense is halted.40
The historical perspective on the application of Act No. 3326 is
illuminating.41 Act No. 3226 was approved on 4 December 1926 at a time
when the function of conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, the prevailing rule at
the time, as shown in the cases of U.S. v. Lazada42 and People v. Joson,43 is
that the prescription of the offense is tolled once a complaint is filed with
the justice of the peace for preliminary investigation inasmuch as the filing
of the complaint signifies the
institution of the criminal proceedings against the accused. 44 These cases
were followed by our declaration in People v. Parao and Parao 45 that the
first step taken in the investigation or examination of offenses partakes the
nature of a judicial proceeding which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the
complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the
period of prescription of the criminal responsibility, even if the court where
the complaint or information is filed cannot try the case on the merits. In
addition, even if the court where the complaint or information is filed may
only proceed to investigate the case, its actuations already represent the
initial step of the proceedings against the offender, 48 and hence, the
prescriptive period should be interrupted.
In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which
involved violations of the Anti-Graft and Corrupt Practices Act (R.A. No.
3019) and the Intellectual Property Code (R.A. No. 8293), which are both
special laws, the Court ruled that the
prescriptive period is interrupted by the institution of proceedings for
preliminary investigation against the accused. In the more recent case of
Securities and Exchange Commission v. Interport Resources Corporation, et
al.,51 the Court ruled that the nature and purpose of the investigation
conducted by the Securities and Exchange Commission on violations of the
Revised Securities Act,52 another special law, is equivalent to the
preliminary investigation conducted by the DOJ in criminal cases, and thus
effectively interrupts the prescriptive period.
The following disquisition in the Interport Resources case53 is instructive,
thus:
While it may be observed that the term "judicial proceedings" in
Sec. 2 of Act No. 3326 appears before "investigation and
punishment" in the old law, with the subsequent change in set-up
whereby the investigation of the charge for purposes of
prosecution has become the exclusive function of the executive
branch, the term "proceedings" should now be understood either
executive or judicial in character: executive when it involves the
investigation phase and judicial when it refers to the trial and
judgment stage. With this clarification, any kind of investigative
proceeding instituted against the guilty person which may
ultimately lead to his prosecution should be sufficient to toll
prescription.54
Indeed, to rule otherwise would deprive the injured party the right to
obtain vindication on account of delays that are not under his control. 55 A
clear example would be this case, wherein petitioner filed his complaint-
affidavit on 24 August 1995, well within the four (4)-year prescriptive
period. He likewise timely filed his appeals and his motions for
reconsideration on the dismissal of the charges against
Tongson. He went through the proper channels, within the prescribed PHILIPPINES, Respondent.
periods. However, from the time petitioner filed his complaint-affidavit
with the Office of the City Prosecutor (24 August 1995) up to the time the RESOLUTION
DOJ issued the assailed resolution, an aggregate period of nine (9) years
had elapsed. Clearly, the delay was beyond petitioner's control. After all,
he had already initiated the active prosecution of the case as early as 24
KAPUNAN, J.:
August 1995, only to suffer setbacks because of the DOJ's flip-flopping
resolutions and its misapplication of Act No. 3326. Aggrieved parties,
especially those who do not sleep on their rights and actively pursue their
causes, should not be allowed to suffer unnecessarily further simply This is a petition for review on certiorari assailing the Decision of the
because of circumstances beyond their control, like the accused's delaying Court of Appeals in C.A.-G.R. No. 21347 entitled "People of the
tactics or the delay and inefficiency of the investigating agencies. Philippines versus Aniceto Recebido," dated September 9, 1999 which
found petitioner guilty beyond reasonable doubt of Falsification of
We rule and so hold that the offense has not yet prescribed. Petitioner 's Public Document; and its Resolution dated February 15, 2000 denying
filing of his complaint-affidavit before the Office of the City Prosecutor on petitioner’s motion for reconsideration. chanrob1es virtua1 1aw 1ibrary

24 August 1995 signified the commencement of the proceedings for the

prosecution of the accused and thus effectively interrupted the The antecedent facts are the following, to wit: chanrob1es virtual 1aw library

prescriptive period for the offenses they had been charged under B.P. Blg.
22. Moreover, since there is a definite finding of probable cause, with the
debunking of the claim of prescription there is no longer any impediment
to the filing of the information against petitioner.
WHEREFORE, the petition is GRANTED. The resolutions of the Court of
Appeals dated 29 October 2004 and 21 March 2005 are REVERSED and SET
ASIDE. The resolution of the Department of Justice dated 9 August 2004 is
also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to
REFILE the information against the petitioner.
On September 9, 1990, private complainant Caridad Dorol went to the
house of her cousin, petitioner Aniceto Recebido, at San Isidro, Bacon,
Sorsogon to redeem her property, an agricultural land with an area of
3,520 square meters located at San Isidro, Bacon, Sorsogon, which
Caridad Dorol mortgaged to petitioner sometime in April of 1985.
Petitioner and Caridad Dorol did not execute a document on the
mortgage but Caridad Dorol instead gave petitioner a copy of the Deed
of Sale dated June 16, 1973 (Exhibit "A") executed in her favor by her
father, Juan Dorol.

No costs. In said confrontation, petitioner refused to allow Caridad Dorol to

redeem her property on his claim that she had sold her property to him
SO ORDERED. in 1979. Caridad Dorol maintained and insisted that the transaction
between them involving her property was a mortgage.
FIRST DIVISION
Caridad Dorol verified from the Office of the Assessor in Sorsogon that
[G.R. No. 141931. December 4, 2000.] there exists on its file a Deed of Sale dated August 13, 1979 (Exhibit
"J"), allegedly executed by Caridad Dorol in favor of petitioner and that
ANICETO RECEBIDO, Petitioner, v. PEOPLE OF THE the property was registered in the latter’s name. After comparison of
the specimen signatures of Caridad Dorol in other documents (Exhibits
"K" to "K-10") with that of the signature of Caridad Dorol on the
questioned Deed of Sale, NBI Document Examiner Antonio Magbojas,
found that the latter signature was falsified (Exhibits "L-1" to "L-2").
Thereafter, Caridad Dorol filed her complaint against petitioner Aniceto
Recebido with the National Bureau of Investigation (NBI), Legaspi City
and its Questioned Documents Division conducted an examination in
the original copy of the Deed of Sale in question allegedly signed by
Caridad, particularly her signature affixed thereon.
Mr. Magboja’s report was approved by the Chief of the Questioned
As narrated by the Court of Appeals, the petitioner contends that the
land in question was mortgage to him by Juan Dorol, the father of
Caridad, on February 25, 1977 and was subsequently sold to him on
August 13, 1983 although it was made to appear that the deed of sale
was executed on August 13, 1979. It was also on the said date that
Recebido gave Caridad the amount of P1,000.00 in addition to the
P2,600.00 mortgage price given to Juan Dorol which culminated into
the execution of the Deed of Sale signed by Caridad. 3
After trial on the merits, the trial court rendered the decision on
December 2, 1996, convicting petitioner of the crime charged and
sentencing him as follows:chanrob1es virtual 1aw library

Documents Division, Arcadio Ramos, and the Deputy Director of

Technical Services, Manuel Roura, both of the NBI. 1 ACCORDINGLY, Accused ANECITO RECEBIDO is sentenced to an
indeterminate penalty of one (1) year to three (3) years and six (6)
Thus, the Office of the Provincial Prosecutor of Sorsogon filed the months of prision correccional as maximum and to pay a fine of Three
information indicting petitioner for Falsification of Public Document Thousand (P3,000.00) Pesos, with subsidiary imprisonment.
with the Regional Trial Court, 5th Judicial Region, Branch 51, Sorsogon,
Sorsogon, reading as follows: chanrob1es virtua1 1aw 1ibrary Accused is ordered to pay P5,000.00 damages and to vacate the land in
question owned by the offended party.
"That on or about the 13th day of August, 1979, in the Municipality of
Sorsogon, Province of Sorsogon, Philippines, and within the jurisdiction SO ORDERED. 4
of this Honorable Court, the above-named accused, being a private
individual, did then and there, willfully, unlawfully and feloniously, with On appeal, the Court of Appeals affirmed with modification the
intent to defraud, falsify and/or imitate the signature of one Caridad decision of the trial court, the dispositive portion of which reads: chanrob1es virtual 1aw library

Dorol and/or cause it to appear that said Caridad Dorol has signed her
name on a Deed of Absolute Sale of Real Property in favor of the herein WHEREFORE, with the modification that the award for damages is
accused and Notarized as Doc. No. 680; page No. 54; Boon No. XIV and DELETED, is assailed judgment is AFFIRMED in all of her respects.
Series of 1979 of the Registry of Notary Public Dominador S. Reyes,
when in truth and in fact accused well knew, that Caridad Dorol did not SO ORDERED. 5
execute said document, to the damage and prejudice of the latter.
The petitioner raises his case before this Court seeking the reversal of
Contrary to law." 2 the assailed decision and resolution of the Court of Appeals. Based on
his petition, the following issues are before this Court: chanrob1es virtua1 1aw 1ibrary

Upon arraignment petitioner pleaded "not guilty." cralaw virtua1aw library

1. Whether or not the crime charged had already prescribed at the time
the information was filed?
2. Whether or not the Court of Appeals committed gave abuse of
discretion in sustaining the conviction of the petitioner?
3. Whether or not the Court of Appeals committed grievous error in
affirming the decision of the trial court for the petitioner to vacate the
land in question owned by the offended party?
We rule in the negative on the three issues.
On the first issue: While the defense of prescription of the crime was
raised only during the motion for reconsideration of the decision of the
Court of Appeals, there was no waiver of the defense. Under the Rules
of Court, the failure of the accused to assert the ground of extinction of
the offense, inter alia, in a motion to quash shall not be deemed a
waiver of such ground 6 The reason is that by prescription, the State or
the People loses the right to prosecute the crime or to demand the
service of the penalty imposed. 7 Accordingly, prescription, although
not invoked in the trial, may, as in this case, be invoked on appeal. 8
Hence, the failure to raise this defense in the motion to quash the
information does not give rise to the waiver of the petitioner-accused
to raise the same anytime thereafter including during appeal.
Nonetheless, we hold that the crime charged has not prescribed. The
petitioner is correct in stating that whether or not the offense charged
has already prescribed when the information was filed would depend
on the penalty imposable therefor, which in this case is "prision
correccional in its medium and maximum periods and a fine of not
more than 5,000.00 pesos." 9 Under the Revised Penal Code, 10 said
penalty is a correctional penalty in the same way that the fine imposed
is categorized as correctional. Both the penalty and fine being
correctional, the offense shall prescribe in ten years. 11 The issue that
the petitioner has missed, however, is the reckoning point of the
prescriptive period. The petitioner is of the impression that the ten-
year prescriptive period necessarily started at the time the crime was
committed. This is inaccurate. Under Article 91 of the Revised Penal
Code, the period of prescription shall "commence to run from the day
on which the crime is discovered by the offended party, the authorities,
or their agents, . . .." In People v. Reyes, 12 this Court has declared that
registration in public registry is a notice to the whole world. The record
is constructive notice of its contents as well as all interests, legal and
equitable, included therein. All persons are charged with knowledge of
what it contains.
chanrob1es virtua1 1aw 1ibrary
The prosecution has established that private complainant Dorol did not
sell the subject land to the petitioner-accused at anytime and that
sometime in 1983 the private complainant mortgaged the agricultural
land to petitioner Recebido. It was only on September 9, 1990, when
she went to petitioner to redeem the land that she came to know of
the falsification committed by the petitioner. On the other hand,
petitioner contends that the land in question was mortgaged to him by
Juan Dorol, the father of private complainant, and was subsequently
sold to him on August 13, 1983. This Court notes that the private
offended party had no actual knowledge of the falsification prior to
September 9, 1990. Meanwhile, assuming arguendo that the version of
the petitioner is believable, the alleged sale could not have been
registered before 1983, the year the alleged deed of sale was executed
by the private complainant. Considering the foregoing, it is logical and
in consonance with human experience to infer that the crime
committed was not discovered, nor could have been discovered, by the
offended party before 1983. Neither could constructive notice by
registration of the forged deed of sale, which is favorable to the
petitioner since the running of the prescriptive period of the crime shall
have to be reckoned earlier, have been done before 1983 as it is
impossible for the petitioner to have registered the deed of sale prior
thereto. Even granting arguendo that the deed of sale was executed by
the private complainant, delivered to the petitioner-accused in August
13, 1983 and registered on the same day, the ten-year prescriptive
period of the crime had not yet elapsed at the time the information
was filed in 1991. The inevitable conclusion, therefore, is that the crime
had not prescribed at the time of the filing of the information.

On the second issue: We hold that the Court of Appeals did not commit
any grave abuse of discretion when it affirmed petitioner’s conviction
by the trial court. The petitioner admits that the deed of sale that was
in his possession is a forged document as found by the trial and
appellate court. 13 Petitioner, nonetheless, argues that
notwithstanding this admission, the fact remains that there is no proof
that the petitioner authored such falsification or that the forgery was
done under his direction. This argument is without merit. Under the
circumstance, there was no need of any direct proof that the petitioner
was the author of the forgery. As keenly observed by the Solicitor
General, "the questioned document was submitted by petitioner
himself when the same was requested by the NBI for examination.
possession alternatively by virtue of two alternative titles: one, based
on the forged deed of sale and, two, as mortgagee of the land. As
already discussed, the deed of sale was forged and, hence, could not be
a valid basis of possession. Neither could his status as mortgagee be
the basis of possession since it is the mortgagor in a contract of
mortgage who is entitled to the possession of the property. We have
taken note of the practice in the provinces that in giving a realty for a
collateral, possession usually goes with it. 18 Besides, even assuming
that petitioner had a right to possess the subject land, his possession
became unlawful when the private complainant offered to redeem the
property and petitioner unjustly refused. Petitioner cannot profit from
the effects of his crime. The trial court, therefore, did not commit any
error in ordering petitioner to vacate the subject property. chanrob1es virtua1 1aw 1ibrary

Clearly in possession of the falsified deed of sale was petitioner and not
Caridad Dorol who merely verified the questioned sale with the In view of the foregoing, this Court finds that the Court of Appeals did
Provincial Assessor’s Office of Sorsogon." 14 In other words, the not commit any reversible error in its Decision dated September 9,
petitioner was in possession of the forged deed of sale which purports 1999 and its Resolution dated February 15, 2000.
to sell the subject land from the private complainant to him. Given this
factual backdrop, the petitioner is presumed to be the author of the ACCORDINGLY, is instant petition is DENIED for lack of merit.
forged deed of sale, despite the absence of any direct evidence of his
authorship of the forgery. Since the petitioner is the only person who SO ORDERED.
stood to benefit by the falsification of the document found in his
possession, it is presumed that he is the material author of the Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
falsification. 15 As it stands, therefore, we are unable to discern any
grave abuse of discretion on the part of the Court of Appeals. chanrob1es virtua1 1aw 1ibrary

On the third issue: Petitioner submits that the trial court is without G.R. No. 141718            January 21, 2005
jurisdiction to order petitioner to vacate the land in question
considering that the crime for which he is charged is falsification. 16 BENJAMIN PANGAN y RIVERA, petitioner,
The petitioner insists that the civil aspect involved in the criminal case vs.
at bar refer to the civil damages recoverable ex delito or arising from HON. LOURDES F. GATBALITE, as the Presiding Judge, Regional Trial
the causative act or omission. 17 In addition, petitioner argues that he Court of Angeles City, Branch 56, and COL. JAMES D. LABORDO, as the
is entitled to possession as mortgagee since the private complainant City Jail Warden of Angeles City, respondents.
has not properly redeemed the property in question.
DECISION
These are specious arguments. The petitioner based his claim of
AZCUNA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of
the 1997 Rules of Civil Procedure, assailing the decision of the Regional
Trial Court of Angeles City, Branch 56, rendered on January 31, 2000.1
The facts of this case are undisputed. The petitioner was indicted for
simple seduction in Criminal Case No. 85-816, at the Municipal Trial
Court of Angeles City, Branch 3.
During the trial of the case, Atty. Eduardo Pineda, counsel for
petitioner, submitted the case for decision without offering any
evidence, due to the petitioner’s constant absence at hearings.
On September 16, 1987, the petitioner was convicted of the offense
charged and was sentenced to serve a penalty of two months and one
day of arresto mayor.
On appeal, the Regional Trial Court, on October 24, 1988, affirmed in
toto the decision of the Municipal Trial Court.
On August 9, 1991, the case was called for promulgation of the decision
in the court of origin. Despite due notice, counsel for the petitioner did
not appear. Notice to petitioner was returned unserved with the
notation that he no longer resided at the given address. As a
consequence, he also failed to appear at the scheduled promulgation.
The court of origin issued an order directing the recording of the
decision in the criminal docket of the court and an order of arrest
against the petitioner.2
Pursuant to the order of arrest, on January 20, 2000, the petitioner was
apprehended and detained at the Mabalacat Detention Cell. On
January 24, 2000, petitioner filed a Petition for a Writ of Habeas Corpus
at the Regional Trial Court of Angeles City. He impleaded as respondent
the Acting Chief of Police of Mabalacat, Pampanga. 3 Petitioner
contended that his arrest was illegal and unjustified on the grounds
that:
(a) the straight penalty of two months and one day of arresto
mayor prescribes in five years under No. 3, Article 93 [of the]
Revised Penal Code, and
(b) having been able to continuously evade service of sentence
for almost nine years, his criminal liability has long been totally
extinguished under No. 6, Article 89 [of the] Revised Penal
Code.4
After his transfer to the City Jail of Angeles City on January 25, 2000,
petitioner filed an Amended Petition with the Regional Trial Court,
impleading herein respondent Col. James D. Labordo, the Jail Warden
of Angeles City, as respondent.5
In response, the Jail Warden alleged that petitioner’s detention was
pursuant to the order of commitment (mittimus), issued by Marlon P.
Roque, Clerk of Court III of the Municipal Trial Court of Angeles City,
Branch 3, dated January 25, 2000.6
On January 31, 2000, respondent Judge rendered the decision, which is
the subject of this present appeal, which pronounced:
The Court cannot subscribe to the contention of the petitioner that the
penalty imposed on him in the decision adverted to above had already
prescribed, hence, his detention is illegal for under Article 93 of the
Revised Penal Code:
"The period of prescription of penalties shall commence to run from
the date when the culprit should evade the service of sentence, and it
shall be interrupted if the defendant should give himself up, be
captured, should go to some foreign country with which this
Government has no extradition treaty, or should commit another crime
before the expiration of the period of prescription.
The elements of prescription are:
1. That the penalty is imposed by final judgment;
2. That convict evaded the service of the sentence by escaping
during the term of his sentence;
3. That the convict who had escaped from prison has not given
himself up, or been captured, or gone to a foreign country with
which we have no extradition treaty, or committed another
crime;
4. The penalty has prescribed, because of the lapse of time
from the date of the evasion of the service of the sentence by
the convict.
In this case, the essential element of prescription which is the evasion
of the service of sentence is absent. Admittedly, the petitioner herein
has not served the penalty imposed on him in prison and that during
the service of the sentence, he escaped therefrom. Notably, at the trial
of Crim. Case No. 85-816 in the Municipal Trial Court, Branch III,
Angeles City and on the date set for the promulgation of the affirmed
decision, the petitioner failed to appear and remained at large.
1a\^/phi1.net
"There was no evasion of the service of the sentence in this case,
because such evasion presupposes escaping during the service of the
sentence consisting in deprivation of liberty." (Infante vs. Warden, 48
O.G. No. 122) (92 Phil. 310).
Corollarily, the detention of the petitioner in Angeles City Jail in
compliance with the Order of Commitment (Exhibit E) is not illegal for –
"A commitment in due form, based on a final judgment, convicting and
sentencing the defendant in a criminal case, is conclusive evidence of
the legality of his detention, unless it appears that the court which
pronounced the judgment was without jurisdiction or exceeded it."
(U.S. vs. Jayne, 24 Phil 90, 24 J.F. 94, Phil. Digest, Vol. 2, 1398).
WHEREFORE, for not being meritorious and well-founded, the petition
for a writ of habeas corpus is hereby denied.
SO ORDERED.
Angeles City, January 31, 2000.7
From the above quoted decision, petitioner filed the instant petition for
review on a question purely of law and raised the following issue:
HOW SHOULD THE PHRASE "SHALL COMMENCE TO RUN FROM THE
DATE WHEN THE CULPRIT SHOULD EVADE THE SERVICE OF SENTENCE"
IN ARTICLE 93 OF THE REVISED PENAL CODE ON THE COMPUTATION OF
THE PRESCRIPTION OF PENALTIES BE CONSTRUED? PUT A LITTLE
DIFFERENTLY, WHEN DOES THE PRESCRIPTIVE PERIOD OF PENALTIES
BEGIN TO RUN?8
Petitioner claims that:
xxx the period for the computation of penalties under Article 93 of the
Revised Penal Code begins to run from the moment the judgment of
conviction becomes final and the convict successfully evades, eludes,
and dodges arrest for him to serve sentence.9
Petitioner supports his claim in the following manner:
The Decision subject of this appeal, which was based on the 1952 ruling
rendered in Infante vs. Warden, 48 O.G. No. 122, 92 Phil. 310, is,
petitioner most respectfully submits, not good case law. It imposes
upon the convict a condition not stated in the law. It is contrary to the
spirit, nature or essence of prescription of penalties, creates an
ambiguity in the law and opens the law to abuse by government.
THE INFANTE RULING IMPOSES A
CONDITION NOT STATED IN THE LAW.
It appears that the Infante ruling imposes that, as an essential element,
the convict must serve at least a few seconds, minutes, days, weeks or
years of his jail sentence and then escapes before the computation of
prescription of penalties begins to run. This, petitioner respectfully
submits is not a condition stated in Article 93, which states that, the
prescription of penalties "shall commence to run from the date when
the culprit should evade the service of sentence."
There is no dispute that the duty of government to compel the service
of sentence sets in when the judgment of conviction becomes final.
The dispute, however, is in the construction of the phrase "should
evade the service of sentence." When does the period of prescription of
penalties begin to run? The Infante ruling construes this to mean that
the convict must escape from jail "because such evasion presupposes
escaping during the service of the sentence consisting in deprivation of
liberty."
Petitioner, with due respect, disagrees because if that were the
intention of the law, then the phrase "should evade the service of
sentence" in Article 93 would have read: "should escape during the
service of the sentence consisting in deprivation of liberty." The
legislature could have very easily written Article 93 to read this way –
"The period of prescription of penalties shall commence to run from
the date when the culprit should escape during the service of the
sentence consisting in deprivation of liberty, and it shall be
interrupted if the defendant should give himself up, be captured,
should go to some foreign country with which this Government has no
extradition treaty, or should commit another crime before the
expiration of the period of prescription."
But they did not.
The legislature wrote "should evade the service of sentence" to cover or
include convicts like him who, although convicted by final judgment,
were never arrested or apprehended by government for the service of
their sentence. With all the powers of government at its disposal,
petitioner was able to successfully evade service of his 2 months and 1
day jail sentence for at least nine (9) years, from August 9, 1991 to
January 20, 2000. This is approximately 3 years and 5 months longer
than the 5-year prescriptive period of the penalty imposed on him.
That, as the respondent RTC Judge noted, petitioner did not attend the
trial at the Municipal Trial Court and the promulgation of his judgment
of conviction in August 9, 1991 is of no moment. His bond for
provisional release was surely cancelled and an order of arrest was
surely issued against petitioner. The undisputed fact is that on August
9, 1991 the judgment of conviction was promulgated in absentia and an
order for petitioner’s arrest was issued by the Municipal Trial Court of
Angeles City, Branch III.
The duty of government, therefore, to arrest petitioner and compel
him to serve his sentence began on August 9, 1991. The 5-year
prescriptive period of his arresto mayor penalty also began to run on
that day considering that no relief was taken therefrom. Since
petitioner never gave himself up [n]or was [he], until January 20, 2000,
ever captured, for the service of his sentence nor did he flee to some
foreign country with which [our] government has no extradition treaty,
that 5-year prescriptive period of his penalty ran continuously from
August 9, 1991 when his judgment of conviction was promulgated in
absentia and was never interrupted.
For reasons known only to it, however, government failed or neglected,
for almost nine (9) years, to arrest petitioner for the service of
his arresto mayor  sentence [which] should not be taken against
petitioner. He was able to successfully evade service of his sentence for
a period longer than the 5-year prescriptive period of his penalty and,
as such, is entitled to total extinction of his criminal liability.
To say, as was said in Infante, that the prescriptive period of the
penalty never began to run in favor of petitioner because he never
escaped from jail during the service of his sentence imposes a condition
not written in the law. It also violates the basic principle that the
criminal statutes are construed liberally in favor of the accused and/or
convict and is contrary to the spirit behind or essence of statutes of
limitations [and] prescription, in criminal cases.10
The Regional Trial Court based its decision on the case of Infante v.
Warden11 . In said case, Infante, the petitioner, was convicted of murder
and was sentenced to seventeen years, four months and one day
of reclusion temporal. After serving fifteen years, seven months and
eleven days, he was granted a conditional pardon. The condition was
that "he shall not again violate any of the penal laws of the
Philippines." Ten years after his release on conditional pardon, Infante
was found guilty by a Municipal Court for driving without a license.
Infante was immediately ordered rearrested for breach of the condition
of his pardon. One of the issues raised by Infante in his petition,
xxx was that the remitted penalty for which the petitioner had been
recommitted to jail – one year and 11 days – had prescribed. xxx 12
The Court disagreed and reasoned out thus:
The contention is not well taken. According to article 93 of the Revised
Penal Code the period of prescription of penalties commences to run
from the date when the culprit should evade the service of his
sentence. It is evident from this provision that evasion of the sentence
is an essential element of prescription. There has been no such evasion
in this case. Even if there had been one and prescription were to be
applied, its basis would have to be the evasion of the unserved
sentence, and computation could not have started earlier than the date
of the order for the prisoner's rearrest.13
A perusal of the facts in Infante v. Warden reveals that it is not on all
fours with the present case. In Infante, the convict was on conditional
pardon when he was re-arrested. Hence, he had started serving
sentence but the State released him. In the present case, the convict
evaded service of sentence from the start, and was arrested eight years
later.
The RTC decision, however, must stand, since it is in accord with
applicable decisions of this Court. The issue raised by petitioner is not
novel. Article 93 of the Revised Penal Code 14 has been interpreted
several times by the Court.
The case of Tanega v. Masakayan15 falls squarely within the issues of
the present case. In that case, petitioner Adelaida Tanega failed to
appear on the day of the execution of her sentence.  On the same day,
1awphi1.nét
respondent judge issued a warrant for her arrest. She was never
arrested. More than a year later, petitioner through counsel moved to
quash the warrant of arrest, on the ground that the penalty had
prescribed. Petitioner claimed that she was convicted for a light offense
and since light offenses prescribe in one year, her penalty had already
prescribed. The Court disagreed, thus:
xxx The period of prescription of penalties — the succeeding Article 93
provides — "shall commence to run from the date when the culprit
should evade the service of his sentence". What then is the concept of
evasion of service of sentence? Article 157 of the Revised Penal Code
furnishes the ready answer. Says Article 157:
"ART. 157. Evasion of service of sentence. — The penalty of prision
correccional in its medium and maximum periods shall be imposed
upon any convict who shall evade service of his sentence by escaping
during the term of his imprisonment by reason of final judgment. xxx"
Elements of evasion of service of sentence are: (1) the offender is a
convict by final judgment; (2) he "is serving his sentence which consists
in deprivation of liberty"; and (3) he evades service of sentence by
escaping during the term of his sentence. This must be so. For, by the
express terms of the statute, a convict evades "service of his sentence"
by "escaping during the term of his imprisonment by reason of final
judgment." That escape should take place while serving sentence, is
emphasized by the provisions of the second sentence of Article 157
which provides for a higher penalty if such "evasion or escape shall
have taken place by means of unlawful entry, by breaking doors,
windows, gates, walls, roofs, or floors, or by using picklocks, false keys,
disguise, deceit, violence or intimidation, or through connivance with
other convicts or employees of the penal institution, . . ." Indeed,
evasion of sentence is but another expression of the term "jail
breaking."
xxx
We, therefore, rule that for prescription of penalty of imprisonment
imposed by final sentence to commence to run, the culprit should
escape during the term of such imprisonment.
Adverting to the facts, we have here the case of a convict who —
sentenced to imprisonment by final judgment — was thereafter never
placed in confinement. Prescription of penalty, then, does not run in
her favor.16
In Del Castillo v. Torrecampo 17 , the Court cited and reiterated Tanega.
Petitioner, Del Castillo, was charged for violation of Section 178 (nn) of
the 1978 Election Code. The trial court found Del Castillo guilty beyond
reasonable doubt and sentenced him to suffer an indeterminate
sentence of imprisonment of 1 year as minimum to 3 years as
maximum. On appeal the Court of Appeals affirmed the decision of the
trial court in toto. During the execution of judgment on October 14,
1987, petitioner was not present. The presiding Judge issued an order
of arrest and the confiscation of his bond. Petitioner was never
apprehended. Ten years later, petitioner filed a motion to quash the
warrant of arrest on the ground that the penalty imposed upon him
had already prescribed. The motion was denied by the trial court. Del
Castillo, on a petition for certiorari to the Court of Appeals, questioned
the denial by the trial court. The Court of Appeals dismissed the
petition for lack of merit. Upon denial of his Motion for
Reconsideration, Del Castillo raised the matter to this Court. The Court
decided against Del Castillo and after quoting the ratio decidendi of the
Court of Appeals in full, it ratiocinated, thus:
The foregoing conclusion of the Court of Appeals is consistent with the
ruling of this Court in Tanega vs. Masakayan, et al., where we declared
that, for prescription of penalty imposed by final sentence to
commence to run, the culprit should escape during the term of such
imprisonment. 1a\^/phi1.net
The Court is unable to find and, in fact, does not perceive any
compelling reason to deviate from our earlier pronouncement clearly
exemplified in the Tanega case.
Article 93 of the Revised Penal Code provides when the prescription of
penalties shall commence to run. Under said provision, it shall
commence to run from the date the felon evades the service of his
sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted
by final judgment by escaping during the term of his sentence.
As correctly pointed out by the Solicitor General, "escape" in legal
parlance and for purposes of Articles 93 and 157 of the RPC means
unlawful departure of prisoner from the limits of his custody. Clearly,
one who has not been committed to prison cannot be said to have
escaped therefrom.
In the instant case, petitioner was never brought to prison. In fact, even
before the execution of the judgment for his conviction, he was already
in hiding. Now petitioner begs for the compassion of the Court because
he has ceased to live a life of peace and tranquility after he failed to
appear in court for the execution of his sentence. But it was petitioner
who chose to become a fugitive. The Court accords compassion only to
those who are deserving. Petitioner's guilt was proven beyond
reasonable doubt but he refused to answer for the wrong he
committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled
jurisprudence and applicable laws. It did not engage in judicial
legislation but correctly interpreted the pertinent laws. Because
petitioner was never placed in confinement, prescription never started
to run in his favor.18
l^vvphi1.net
Consistent with the two cases cited above, this Court pronounces that
the prescription of penalties found in Article 93 of the Revised Penal
Code, applies only to those who are convicted by final judgment and
are serving sentence which consists in deprivation of liberty. The period
for prescription of penalties begins only when the convict evades
service of sentence by escaping during the term of his sentence. Since
petitioner never suffered deprivation of liberty before his arrest on
January 20, 2000 and as a consequence never evaded sentence by
escaping during the term of his service, the period for prescription
never began.
Petitioner, however, has by this time fully served his sentence of two
months and one day of arresto mayor and should forthwith be released
unless he is being detained for another offense or charge.
WHEREFORE, the decision of the Regional Trial Court of Angeles City,
Branch 56 is AFFIRMED, but petitioner is ordered released effective
immediately for having fully served his sentence unless he is detained
for another offense or charge.
No costs.
SO ORDERED.
G.R. No. 139033           December 18, 2002
JOVENDO DEL CASTILLO, petitioner,
vs.
HON. ROSARIO TORRECAMPO, Presiding Judge, RTC of Camarines Sur,
Branch 33 and
PEOPLE OF THE PHILIPPINES, respondents.
DECISION
CORONA, J.:
The instant petition is one for the review, by way of appeal by
certiorari, of the Decision1 of the Court of Appeals dated November 20,
1998, and of the Resolution dated June 14, 1999 denying the motion
for reconsideration thereof.
Petitioner was charged on March 8, 1983 with violation of Section 178
(nn)2 of the 1978 Election Code in Criminal Case No. F-1447 before
Branch 33, Regional Trial Court, Camarines Sur. The Information
alleged:
That on May 17, 1982, (Barangay Election Day), at around 8:15 P.M. in
Barangay Ombao, Municipality of Bula, Province of Camarines Sur,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused did, then and there unlawfully conducted
himself in a disorderly manner, by striking the electric bulb and two (2)
kerosene petromax lamps lighting the room where voting center no. 24
is located, during the counting of the votes in said voting center
plunging the room in complete darkness, thereby interrupting and
disrupting the proceedings of the Board of Election Tellers.3
On arraignment, petitioner pleaded not guilty. Thereafter, trial on the
merits ensued.
On January 14, 1985, the trial court rendered judgment and declared
petitioner guilty beyond reasonable doubt of violating Section 178 (nn)
of PD 1296, otherwise known as the 1978 Election Code, as amended,
and sentenced petitioner to suffer the indeterminate penalty of
imprisonment of 1 year as minimum to 3 years as maximum.
Aggrieved, petitioner appealed his conviction to the Court of Appeals
which eventually affirmed the decision of the trial court in toto. Said
decision became final and executory. Thus, the execution of judgment
was scheduled on October 14, 1987.
On October 12, 1987, an urgent motion to reset the execution of
judgment was submitted by petitioner through his counsel. But it was
denied for lack of merit.
During the execution of judgment, petitioner failed to appear which
prompted the presiding judge to issue an order of arrest of petitioner
and the confiscation of his bond. However, petitioner was never
apprehended. He remained at large.
Ten years later, on October 24, 1997, petitioner filed before the trial
court a motion to quash the warrant issued for his arrest on the ground
of prescription of the penalty imposed upon him. However, it was
denied. His motion for reconsideration thereof was likewise denied.
Dissatisfied, petitioner filed with the Court of Appeals a Petition for
Certiorari assailing the orders of the trial court denying both his motion
to quash the warrant of arrest and motion for reconsideration.
On November 20, 1998, the Court of Appeals rendered its now assailed
decision dismissing the petition for lack of merit.
Following the denial of his motion for reconsideration, the instant
petition was filed before us.
Petitioner asserts that the Court of Appeals gravely erred in holding
that the penalty imposed upon petitioner has not prescribed. Petitioner
maintains that Article 93 of the Revised Penal Code provides that the
period of prescription shall commence to run from the date when the
culprit should evade the service of his sentence. The Court of Appeals,
in its interpretation of the said provision, engaged in judicial legislation
when it added the phrase "by escaping during the term of the
sentence" thereto, so petitioner claims.
Going over the merits of the petition, the Court finds that the Court of
Appeals did not err in dismissing the petition for certiorari.
The threshold issue in the instant case is the interpretation of Article 93
of the Revised Penal Code in relation to Article 157 of the same Code.
In dismissing the petition, the Court of Appeals ruled:
"Article 92 of the Revised Penal Code provides as follows:
‘When and how penalties prescribe – The penalties imposed by the
final sentence prescribed as follows:
1. Death and reclusion perpetua, in twenty years;
2. Other afflictive penalties, in fifteen years;
3. Correctional penalties, in ten years; with the exception of
the penalty of arresto mayor, which prescribes in five years;
4. Light penalties, in one year.’
"And Article 93 of the Revised Penal Code, provides as follows:
‘Computation of the prescription of penalties – The period of
prescription of penalties shall commence to run from the date when
the culprit should evade the service of his sentence, and it shall be
interrupted if the defendant should give himself up, be captured,
should go to some foreign country with which his Government has no
extradition treaty, or should commit another crime before the
expiration of the period of prescription.’
"The penalty imposed upon the petitioner is one (1) year of
imprisonment as minimum to three (3) years of imprisonment
as maximum.
"The law under which the petitioner was convicted is a special
law, the 1978 Election Code. This law does not provide for the
prescription of penalties. This being the case, We have to apply
the provision of the Revised Penal Code which allows the
application of said code in suppletory character when it
provides that:
‘Offenses which are or in the future may be punishable under
special laws are not subject to the provision of this code. This
code shall be supplementary to such laws, unless the latter
should specially provide the contrary.’
"The penalty imposed upon the petitioner is a correctional
penalty under Article 25 in relation to Article 27 of the Revised
Penal Code. Being a correctional penalty it prescribed in ten
(10) years.
"The petitioner was convicted by a final judgment on June 14,
1986. Such judgment would have been executed on October
14, 1986 but the accused did not appear for such proceeding.
And he has never been apprehended.
"The contention of the petitioner is that said judgment
prescribed on October 24, 1996.
"The issue here is whether or not the penalty imposed upon
the petitioner has prescribed.
"The elements in order that the penalty imposed has
prescribed are as follows:
‘1. That the penalty is imposed by final sentence.
2. That the convict evaded the service of the sentence
by escaping during the term of his sentence.
3. That the convict who escaped from prison has not
given himself up, or been captured, or gone to a
foreign country with which we have no extradition
treaty or committed another crime.
4. That the penalty has prescribed, because of the
lapse of time form the date of the evasion of the
service of the sentence by the convict.’
(p. 93, Revised Penal Code by L. Reyes 93 ed.)
"From the foregoing elements, it is clear that the penalty
imposed has not prescribed because the circumstances of the
case at bench failed to satisfy the second element, to wit –
‘That the convict evaded the service of the sentence by
escaping during the service of his sentence.’ As a matter of
fact, the petitioner never served a single minute of his
sentence.
The foregoing conclusion of the Court of Appeals is consistent with the
ruling of this Court in Tanega vs. Masakayan, et. al.,4 where we
declared that, for prescription of penalty imposed by final sentence to
commence to run, the culprit should escape during the term of such
imprisonment.
The Court is unable to find and, in fact, does not perceive any G.R. No. 206666               January 21, 2015
compelling reason to deviate from our earlier pronouncement clearly
exemplified in the Tanega case. ATTY. ALICIA RISOS-VIDAL, Petitioner,
ALFREDO S. LIM Petitioner-Intervenor,
Article 93 of the Revised Penal Code provides when the prescription of vs.
penalties shall commence to run. Under said provision, it shall COMMISSION ON ELECTIONS and JOSEPH EJERCITO
commence to run from the date the felon evades the service of his ESTRADA, Respondents.
sentence. Pursuant to Article 157 of the same Code, evasion of service
of sentence can be committed only by those who have been convicted DECISION
by final judgment by escaping during the term of his sentence.
LEONARDO-DE CASTRO, J.:
As correctly pointed out by the Solicitor General, "escape" in legal
parlance and for purposes of Articles 93 and 157 of the RPC means Before the Court are (1) a Petition for Certiorari filed under Rule 64, in
unlawful departure of prisoner from the limits of his custody. Clearly, relation to Rule 65, both of the Revised Rules of Court, by Atty. Alicia
one who has not been committed to prison cannot be said to have Risos-Vidal (Risos-Vidal), which essentially prays for the issuance of the
escaped therefrom. writ of certiorari annulling and setting aside the April 1, 2013  and April
1

23, 2013  Resolutions of the Commission on Elections (COMELEC),

2

In the instant case, petitioner was never brought to prison. In fact, even
before the execution of the judgment for his conviction, he was already
in hiding. Now petitioner begs for the compassion of the Court because
he has ceased to live a life of peace and tranquility after he failed to
Second Division and En bane, respectively, in SPA No. 13-211 (DC),
entitled "Atty. Alicia Risos-Vidal v. Joseph Ejercito Estrada" for having
been rendered with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (2) a Petition-in-Intervention  filed by Alfredo
3

appear in court for the execution of his sentence. But it was petitioner
who chose to become a fugitive. The Court accords compassion only to
those who are deserving. Petitioner’s guilt was proven beyond
reasonable doubt but he refused to answer for the wrong he
committed. He is therefore not to be rewarded therefor.
The assailed decision of the Court of Appeals is based on settled
jurisprudence and applicable laws. It did not engage in judicial
legislation but correctly interpreted the pertinent laws. Because
petitioner was never placed in confinement, prescription never started
to run in his favor.
WHEREFORE, for lack of merit, the petition is hereby DENIED.
SO ORDERED.
S. Lim (Lim), wherein he prays to be declared the 2013 winning
candidate for Mayor of the City of Manila in view of private respondent
former President Joseph Ejercito Estrada’s (former President Estrada)
disqualification to run for and hold public office.
The Facts
The salient facts of the case are as follows:
On September 12, 2007, the Sandiganbayan convicted former President
Estrada, a former President of the Republic of the Philippines, for the
crime of plunder in Criminal Case No. 26558, entitled "People of the
Philippines v. Joseph Ejercito Estrada, et al." The dispositive part of the
graft court’s decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
in Criminal Case No. 26558 finding the accused, Former President
Joseph Ejercito Estrada, GUILTY beyond reasonable doubt of the crime
of PLUNDER, defined in and penalized by Republic Act No. 7080, as
amended. On the other hand, for failure of the prosecution to prove
and establish their guilt beyond reasonable doubt, the Court finds the
accused Jose "Jinggoy" Estrada and Atty. Edward S. Serapio NOT GUILTY
of the crime of plunder, and accordingly, the Court hereby orders their
ACQUITTAL.
The penalty imposable for the crime of plunder under Republic Act No.
7080, as amended by Republic Act No. 7659, is Reclusion Perpetua to
Death. There being no aggravating or mitigating circumstances,
however, the lesser penalty shall be applied in accordance with Article
63 of the Revised Penal Code. Accordingly, the accused Former
President Joseph Ejercito Estrada is hereby sentenced to suffer the
penalty of Reclusion Perpetua and the accessory penalties of civil
interdiction during the period of sentence and perpetual absolute
disqualification.
The period within which accused Former President Joseph Ejercito
Estrada has been under detention shall be credited to him in full as
long as he agrees voluntarily in writing to abide by the same
disciplinary rules imposed upon convicted prisoners.
Moreover, in accordance with Section 2 of Republic Act No. 7080, as
amended by Republic Act No. 7659, the Court hereby declares the
forfeiture in favor of the government of the following:
(1) The total amount of Five Hundred Forty[-]Two Million
Seven Hundred Ninety[-]One Thousand Pesos
(₱545,291,000.00), with interest and income earned, inclusive
of the amount of Two Hundred Million Pesos
(₱200,000,000.00), deposited in the name and account of the
Erap Muslim Youth Foundation.
(2) The amount of One Hundred Eighty[-]Nine Million Pesos
(₱189,000,000.00), inclusive of interests and income earned,
deposited in the Jose Velarde account.
(3) The real property consisting of a house and lot dubbed as
"Boracay Mansion" located at #100 11th Street, New Manila,
Quezon City.
The cash bonds posted by accused Jose "Jinggoy" Estrada and Atty.
Edward S. Serapio are hereby ordered cancelled and released to the
said accused or their duly authorized representatives upon
presentation of the original receipt evidencing payment thereof and
subject to the usual accounting and auditing procedures. Likewise, the
hold-departure orders issued against the said accused are hereby
recalled and declared functus oficio. 4
On October 25, 2007, however, former President Gloria Macapagal
Arroyo (former President Arroyo) extended executive clemency, by way
of pardon, to former President Estrada. The full text of said pardon
states:
MALACAÑAN PALACE
MANILA
By the President of the Philippines
PARDON
WHEREAS, this Administration has a policy of releasing inmates who
have reached the age of seventy (70),
WHEREAS, Joseph Ejercito Estrada has been under detention for six and
a half years,
WHEREAS, Joseph Ejercito Estrada has publicly committed to no longer
seek any elective position or office,
IN VIEW HEREOF and pursuant to the authority conferred upon me by
the Constitution, I hereby grant executive clemency to JOSEPH
EJERCITO ESTRADA, convicted by the Sandiganbayan of Plunder and
imposed a penalty of Reclusion Perpetua. He is hereby restored to his
civil and political rights.
The forfeitures imposed by the Sandiganbayan remain in force and in
full, including all writs and processes issued by the Sandiganbayan in
pursuance hereof, except for the bank account(s) he owned before his
tenure as President.
Upon acceptance of this pardon by JOSEPH EJERCITO ESTRADA, this
pardon shall take effect.
Given under my hand at the City of Manila, this 25th Day of October, in
the year of Our Lord, two thousand and seven.
Gloria M. Arroyo (sgd.)
By the President:
IGNACIO R. BUNYE (sgd.)
Acting Executive Secretary5
On October 26, 2007, at 3:35 p.m., former President Estrada "received
and accepted"  the pardon by affixing his signature beside his
6
handwritten notation thereon.
On November 30, 2009, former President Estrada filed a Certificate of
Candidacy  for the position of President. During that time, his candidacy
7
earned three oppositions in the COMELEC: (1) SPA No. 09-024 (DC), a
"Petition to Deny Due Course and Cancel Certificate of Candidacy" filed
by Rev. Elly Velez B. Lao Pamatong, ESQ; (2) SPA No. 09-028 (DC), a
petition for "Disqualification as Presidential Candidate" filed by Evilio C.
Pormento (Pormento); and (3) SPA No. 09-104 (DC), a "Petition to
Disqualify Estrada Ejercito, Joseph M.from Running as President due to
Constitutional Disqualification and Creating Confusion to the Prejudice
of Estrada, Mary Lou B" filed by Mary Lou Estrada. In separate
Resolutions  dated January 20, 2010 by the COMELEC, Second Division,
8
however, all three petitions were effectively dismissed on the uniform
grounds that (i) the Constitutional proscription on reelection applies to
a sitting president; and (ii) the pardon granted to former President
Estrada by former President Arroyo restored the former’s right to vote
and be voted for a public office. The subsequent motions for
reconsideration thereto were denied by the COMELEC En banc.
After the conduct of the May 10, 2010 synchronized elections,
however, former President Estrada only managed to garner the second
highest number of votes.
Of the three petitioners above-mentioned, only Pormento sought
recourse to this Court and filed a petition for certiorari, which was
docketed as G.R. No. 191988, entitled "Atty. Evilio C. Pormento v.
Joseph ‘ERAP’ Ejercito Estrada and Commission on Elections." But in a
Resolution  dated August 31, 2010, the Court dismissed the
9
aforementioned petition on the ground of mootness considering that
former President Estrada lost his presidential bid.
On October 2, 2012, former President Estrada once more ventured into
the political arena, and filed a Certificate of Candidacy,  this time vying
10
for a local elective post, that ofthe Mayor of the City of Manila.
On January 24, 2013, Risos-Vidal, the petitioner in this case, filed a
Petition for Disqualification against former President Estrada before the
COMELEC. The petition was docketed as SPA No. 13-211 (DC). Risos
Vidal anchored her petition on the theory that "[Former President
Estrada] is Disqualified to Run for Public Office because of his
Conviction for Plunder by the Sandiganbayan in Criminal Case No.
26558 entitled ‘People of the Philippines vs. Joseph Ejercito Estrada’
Sentencing Him to Suffer the Penalty of Reclusion Perpetuawith
Perpetual Absolute Disqualification."  She relied on Section 40 of the
11
Local Government Code (LGC), in relation to Section 12 of the Omnibus
Election Code (OEC), which state respectively, that:
Sec. 40, Local Government Code:
SECTION 40. Disqualifications.- The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving
sentence; (b) Those removed from office as a result of an
administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or nonpolitical cases here
or abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble minded. (Emphasis supplied.)
Sec. 12, Omnibus Election Code:
Section 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgmentfor subversion, insurrection, rebellion, or for any offense
for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to
be a candidate and to hold any public office, unless he has been given
plenary pardon or granted amnesty. (Emphases supplied.)
In a Resolution dated April 1, 2013,the COMELEC, Second Division,
dismissed the petition for disqualification, the fallo of which reads:
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED for utter lack of merit. 12
The COMELEC, Second Division, opined that "[h]aving taken judicial
cognizance of the consolidated resolution for SPA No. 09-028 (DC) and
SPA No. 09-104 (DC) and the 10 May 2010 En Banc resolution affirming
it, this Commission will not be labor the controversy further. Moreso,
[Risos-Vidal] failed to present cogent proof sufficient to reverse the
standing pronouncement of this Commission declaring categorically
that [former President Estrada’s] right to seek public office has been
effectively restored by the pardon vested upon him by former
President Gloria M. Arroyo. Since this Commission has already spoken,
it will no longer engage in disquisitions of a settled matter lest indulged
in wastage of government resources." 13
The subsequent motion for reconsideration filed by Risos-Vidal was
denied in a Resolution dated April 23, 2013.
On April 30, 2013, Risos-Vidal invoked the Court’s jurisdiction by filing
the present petition. She presented five issues for the Court’s
resolution, to wit:
I. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN HOLDING THAT RESPONDENT ESTRADA’S
PARDON WAS NOT CONDITIONAL;
 II. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT FINDING THAT RESPONDENT ESTRADA IS
DISQUALIFIED TO RUN AS MAYOR OF MANILA UNDER SEC. 40
OF THE LOCAL GOVERNMENTCODE OF 1991 FOR HAVING BEEN
CONVICTED OF PLUNDER, AN OFFENSE INVOLVING MORAL
TURPITUDE;
III. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN DISMISSING THE PETITION FOR
DISQUALIFICATION ON THE GROUND THAT THE CASE
INVOLVES THE SAME OR SIMILAR ISSUES IT ALREADY
RESOLVED IN THE CASES OF "PORMENTO VS. ESTRADA", SPA
NO. 09-028 (DC) AND IN "RE: PETITION TO DISQUALIFY
ESTRADA EJERCITO, JOSEPH M. FROM RUNNING AS
PRESIDENT, ETC.," SPA NO. 09-104 (DC);
IV. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT RULING THAT RESPONDENT ESTRADA’S
PARDON NEITHER RESTORED HIS RIGHT OF SUFFRAGE NOR
REMITTED HIS PERPETUAL ABSOLUTE DISQUALIFICATION
FROM SEEKING PUBLIC OFFICE; and
V. RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN NOT HAVING EXERCISED ITS POWER TO
MOTU PROPRIO DISQUALIFY RESPONDENT ESTRADA IN THE
FACE OF HIS PATENT DISQUALIFICATION TO RUN FOR PUBLIC
OFFICE BECAUSE OF HIS PERPETUAL AND ABSOLUTE
DISQUALIFICATION TO SEEK PUBLIC OFFICE AND TO VOTE
RESULTING FROM HIS CRIMINAL CONVICTION FOR PLUNDER. 14
While this case was pending beforethe Court, or on May 13, 2013, the
elections were conducted as scheduled and former President Estrada
was voted into office with 349,770 votes cast in his favor. The next day,
the local board of canvassers proclaimed him as the duly elected Mayor
of the City of Manila.
On June 7, 2013, Lim, one of former President Estrada’s opponents for
the position of Mayor, moved for leave to intervene in this case. His
motion was granted by the Court in a Resolution  dated June 25, 2013.
15
Lim subscribed to Risos-Vidal’s theory that former President Estrada is
disqualified to run for and hold public office as the pardon granted to
the latter failed to expressly remit his perpetual disqualification.
Further, given that former President Estrada is disqualified to run for
and hold public office, all the votes obtained by the latter should be
declared stray, and, being the second placer with 313,764 votes to his
name, he (Lim) should be declared the rightful winning candidate for
the position of Mayor of the City of Manila.
The Issue
Though raising five seemingly separate issues for resolution, the
petition filed by Risos-Vidal actually presents only one essential
question for resolution by the Court, that is, whether or not the
COMELEC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in ruling that former President Estrada is qualified
to vote and be voted for in public office as a result of the pardon
granted to him by former President Arroyo.
In her petition, Risos-Vidal starts her discussion by pointing out that the
pardon granted to former President Estrada was conditional as
evidenced by the latter’s express acceptance thereof. The
"acceptance," she claims, is an indication of the conditional natureof
the pardon, with the condition being embodied in the third Whereas
Clause of the pardon, i.e., "WHEREAS, Joseph Ejercito Estrada has
publicly committed to no longer seek any elective position or office."
She explains that the aforementioned commitment was what impelled
former President Arroyo to pardon former President Estrada, without
it, the clemency would not have been extended. And any breach
thereof, that is, whenformer President Estrada filed his Certificate of
Candidacy for President and Mayor of the City of Manila, he breached
the condition of the pardon; hence, "he ought to be recommitted to
prison to serve the unexpired portion of his sentence x x x and
disqualifies him as a candidate for the mayoralty [position] of Manila." 16
Nonetheless, Risos-Vidal clarifies that the fundamental basis upon
which former President Estrada mustbe disqualified from running for
and holding public elective office is actually the proscription found in
Section 40 of the LGC, in relation to Section 12 ofthe OEC. She argues
that the crime of plunder is both an offense punishable by
imprisonment of one year or more and involving moral turpitude; such
that former President Estrada must be disqualified to run for and hold
public elective office.
Even with the pardon granted to former President Estrada, however,
Risos-Vidal insists that the same did not operate to make available to
former President Estrada the exception provided under Section 12 of
the OEC, the pardon being merely conditional and not absolute or
plenary. Moreover, Risos-Vidal puts a premium on the ostensible
requirements provided under Articles 36 and 41 of the Revised Penal
Code, to wit:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of
the right to hold publicoffice, or the right of suffrage, unless such rights
be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory
penalties.– The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the
period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
She avers that in view of the foregoing provisions of law, it is not
enough that a pardon makes a general statement that such pardon
carries with it the restoration of civil and political rights. By virtue of
Articles 36 and 41, a pardon restoring civil and political rights without
categorically making mention what specific civil and political rights are
restored "shall not work to restore the right to hold public office, or the
right of suffrage; nor shall it remit the accessory penalties of civil
interdiction and perpetual absolute disqualification for the principal
penalties of reclusion perpetua and reclusion temporal."  In other
17
words, she considers the above constraints as mandatory requirements
that shun a general or implied restoration of civil and political rights in
pardons.
Risos-Vidal cites the concurring opinions of Associate Justices Teodoro
R. Padilla and Florentino P. Feliciano in Monsanto v. Factoran, Jr.  to18
endorse her position that "[t]he restoration of the right to hold public
office to one who has lost such right by reason of conviction in a
criminal case, but subsequently pardoned, cannot be left to inference,
no matter how intensely arguable, but must be statedin express,
explicit, positive and specific language."
Applying Monsantoto former President Estrada’s case, Risos-Vidal
reckons that "such express restoration is further demanded by the
existence of the condition in the [third] [W]hereas [C]lause of the
pardon x x x indubitably indicating that the privilege to hold public
office was not restored to him." 19
On the other hand, the Office ofthe Solicitor General (OSG) for public
respondent COMELEC, maintains that "the issue of whether or not the
pardon extended to [former President Estrada] restored his right to run
for public office had already been passed upon by public respondent
COMELEC way back in 2010 via its rulings in SPA Nos. 09-024, 09-028
and 09-104, there is no cogent reason for it to reverse its standing
pronouncement and declare [former President Estrada] disqualified to
run and be voted as mayor of the City of Manila in the absence of any
new argument that would warrant its reversal. To be sure, public
respondent COMELEC correctly exercised its discretion in taking judicial
cognizance of the aforesaid rulings which are known toit and which can
be verified from its own records, in accordance with Section 2, Rule 129
of the Rules of Court on the courts’ discretionary power to take judicial
notice of matters which are of public knowledge, orare capable of
unquestionable demonstration, or ought to be known to them because
of their judicial functions."
20
Further, the OSG contends that "[w]hile at first glance, it is apparent
that [former President Estrada’s] conviction for plunder disqualifies him
from running as mayor of Manila under Section 40 of the [LGC], the
subsequent grant of pardon to him, however, effectively restored his
right to run for any public office."  The restoration of his right to run for
21
any public office is the exception to the prohibition under Section 40 of
the LGC, as provided under Section 12 of the OEC. As to the seeming
requirement of Articles 36 and 41 of the Revised Penal Code, i.e., the
express restoration/remission of a particular right to be stated in the
pardon, the OSG asserts that "an airtight and rigid interpretation of
Article 36 and Article 41 of the [RPC] x x x would be stretching too
much the clear and plain meaning of the aforesaid provisions."  Lastly,
22
taking into consideration the third Whereas Clause of the pardon
granted to former President Estrada, the OSG supports the position
that it "is not an integral part of the decree of the pardon and cannot
therefore serve to restrict its effectivity."
23
Thus, the OSG concludes that the "COMELEC did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction in issuing
the assailed Resolutions." 24
For his part, former President Estrada presents the following significant
arguments to defend his stay in office: that "the factual findings of
public respondent COMELEC, the Constitutional body mandated to
administer and enforce all laws relative to the conduct of the elections,
[relative to the absoluteness of the pardon, the effects thereof, and the
eligibility of former President Estrada to seek public elective office] are
binding [and conclusive] on this Honorable Supreme Court;" that he
"was granted an absolute pardon and thereby restored to his full civil
and political rights, including the right to seek public elective office such
as the mayoral (sic) position in the City of Manila;" that "the majority
decision in the case of Salvacion A. Monsanto v. Fulgencio S. Factoran,
Jr.,which was erroneously cited by both Vidal and Lim as authority for
their respective claims, x x x reveal that there was no discussion
whatsoever in the ratio decidendi of the Monsanto case as to the
alleged necessity for an expressed restoration of the ‘right to hold
public office in the pardon’ as a legal prerequisite to remove the
subject perpetual special disqualification;" that moreover, the
"principal question raised in this Monsanto case is whether or not a
public officer, who has been granted an absolute pardon by the Chief
Executive, is entitled to reinstatement toher former position without
need of a new appointment;" that his "expressed acceptance [of the
pardon] is not proof that the pardon extended to [him] is conditional
and not absolute;" that this case is a mere rehash of the casesfiled
against him during his candidacy for President back in 2009-2010; that
Articles 36 and 41 of the Revised Penal Code "cannot abridge or
diminish the pardoning power of the President expressly granted by
the Constitution;" that the text of the pardon granted to him
substantially, if not fully, complied with the requirement posed by
Article 36 of the Revised Penal Code as it was categorically stated in the
said document that he was "restored to his civil and political rights;"
that since pardon is an act of grace, it must be construed favorably in
favor of the grantee;  and that his disqualification will result in massive
25
disenfranchisement of the hundreds of thousands of Manileños who
voted for him. 26
The Court's Ruling
The petition for certiorari lacks merit.
Former President Estrada was granted an absolute pardon that fully The pardoning power of the President cannot be limited by legislative
restored allhis civil and political rights, which naturally includes the action.
right to seek public elective office, the focal point of this controversy.
The wording of the pardon extended to former President Estrada is The 1987 Constitution, specifically Section 19 of Article VII and Section
complete, unambiguous, and unqualified. It is likewise unfettered by 5 of Article IX-C, provides that the President of the Philippines
Articles 36 and 41 of the Revised Penal Code. The only reasonable, possesses the power to grant pardons, along with other acts of
objective, and constitutional interpretation of the language of the executive clemency, to wit:
pardon is that the same in fact conforms to Articles 36 and 41 of the
Revised Penal Code. Recall that the petition for disqualification filed by Section 19. Except in cases of impeachment, or as otherwise provided
Risos-Vidal against former President Estrada, docketed as SPA No. 13- in this Constitution, the President may grant reprieves, commutations,
211 (DC), was anchored on Section 40 of the LGC, in relation to Section and pardons, and remit fines and forfeitures, after conviction by final
12 of the OEC, that is, having been convicted of a crime punishable by judgment.
imprisonment of one year or more, and involving moral turpitude,
former President Estrada must be disqualified to run for and hold He shall also have the power to grant amnesty with the concurrence of
public elective office notwithstanding the fact that he is a grantee of a a majority of all the Members of the Congress.
pardon that includes a statement expressing "[h]e is hereby restored to
his civil and political rights." Risos-Vidal theorizes that former President xxxx
Estrada is disqualified from running for Mayor of Manila inthe May 13,
2013 Elections, and remains disqualified to hold any local elective post
Section 5. No pardon, amnesty, parole, or suspension of sentence for
despite the presidential pardon extended to him in 2007 by former
violation of election laws, rules, and regulations shall be granted by the
President Arroyo for the reason that it (pardon) did not expressly
President without the favorable recommendation of the Commission.
provide for the remission of the penalty of perpetual absolute
disqualification, particularly the restoration of his (former President
It is apparent from the foregoing constitutional provisions that the only
Estrada) right to vote and bevoted upon for public office. She invokes
instances in which the President may not extend pardon remain to be
Articles 36 and 41 of the Revised Penal Code as the foundations of her
in: (1) impeachment cases; (2) cases that have not yet resulted in a final
theory.
conviction; and (3) cases involving violations of election laws, rules and
regulations in which there was no favorable recommendation coming
It is insisted that, since a textual examination of the pardon given to
from the COMELEC. Therefore, it can be argued that any act of
and accepted by former President Estrada does not actually specify
Congress by way of statute cannot operate to delimit the pardoning
which political right is restored, it could be inferred that former
power of the President.
President Arroyo did not deliberately intend to restore former
President Estrada’s rights of suffrage and to hold public office, orto
In Cristobal v. Labrador  and Pelobello v. Palatino,  which were decided
27 28

otherwise remit the penalty of perpetual absolute disqualification.

under the 1935 Constitution,wherein the provision granting pardoning
Even if her intention was the contrary, the same cannot be upheld
power to the President shared similar phraseology with what is found
based on the pardon’s text.
in the present 1987 Constitution, the Court then unequivocally
declared that "subject to the limitations imposed by the Constitution,
the pardoning power cannot be restricted or controlled by legislative
action." The Court reiterated this pronouncement in Monsanto v.
Factoran, Jr.  thereby establishing that, under the present Constitution,
29
"a pardon, being a presidential prerogative, should not be
circumscribed by legislative action." Thus, it is unmistakably the long-
standing position of this Court that the exercise of the pardoning power
is discretionary in the President and may not be interfered with by
Congress or the Court, except only when it exceeds the limits provided
for by the Constitution.
This doctrine of non-diminution or non-impairment of the President’s
power of pardon by acts of Congress, specifically through legislation,
was strongly adhered to by an overwhelming majority of the framers of
the 1987 Constitution when they flatly rejected a proposal to carve out
an exception from the pardoning power of the President in the form of
"offenses involving graft and corruption" that would be enumerated
and defined by Congress through the enactment of a law. The following
is the pertinent portion lifted from the Record of the Commission (Vol.
II):
MR. ROMULO. I ask that Commissioner Tan be recognized to introduce
an amendment on the same section.
THE PRESIDENT. Commissioner Tan is recognized.
SR. TAN. Madam President, lines 7 to 9 state:
However, the power to grant executive clemency for violations of
corrupt practices laws may be limited by legislation.
I suggest that this be deletedon the grounds that, first, violations of
corrupt practices may include a very little offense like stealing ₱10;
second, which I think is more important, I get the impression, rightly or
wrongly, that subconsciously we are drafting a constitution on the
premise that all our future Presidents will bebad and dishonest and,
consequently, their acts will be lacking in wisdom. Therefore, this
Article seems to contribute towards the creation of an anti-President
Constitution or a President with vast responsibilities but no
corresponding power except to declare martial law. Therefore, I
request that these lines be deleted.
MR. REGALADO. Madam President,may the Committee react to that?
THE PRESIDENT. Yes, please.
MR. REGALADO. This was inserted here on the resolution of
Commissioner Davide because of the fact that similar to the provisions
on the Commission on Elections, the recommendation of that
Commission is required before executive clemency isgranted because
violations of the election laws go into the very political life of the
country.
With respect to violations of our Corrupt Practices Law, we felt that it is
also necessary to have that subjected to the same condition because
violation of our Corrupt Practices Law may be of such magnitude as to
affect the very economic systemof the country. Nevertheless, as a
compromise, we provided here that it will be the Congress that will
provide for the classification as to which convictions will still require
prior recommendation; after all, the Congress could take into account
whether or not the violation of the Corrupt Practices Law is of such
magnitude as to affect the economic life of the country, if it is in the
millions or billions of dollars. But I assume the Congress in its collective
wisdom will exclude those petty crimes of corruption as not to require
any further stricture on the exercise of executive clemency because, of
course, there is a whale of a difference if we consider a lowly clerk
committing malversation of government property or funds involving
one hundred pesos. But then, we also anticipate the possibility that the
corrupt practice of a public officer is of such magnitude as to have
virtually drained a substantial portion of the treasury, and then he goes
through all the judicial processes and later on, a President who may
have close connections with him or out of improvident compassion
may grant clemency under such conditions. That is why we left it to
Congress to provide and make a classification based on substantial
distinctions between a minor act of corruption or an act of substantial
proportions. SR. TAN. So, why do we not just insert the word GROSS or
GRAVE before the word "violations"?
MR. REGALADO. We feel that Congress can make a better distinction
because "GRAVE" or "GROSS" can be misconstrued by putting it purely
as a policy.
MR. RODRIGO. Madam President.
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. May I speak in favor of the proposed amendment?
THE PRESIDENT. Please proceed.
MR. RODRIGO. The power to grant executive clemency is essentially an
executive power, and that is precisely why it is called executive
clemency. In this sentence, which the amendment seeks to delete, an
exception is being made. Congress, which is the legislative arm, is
allowed to intrude into this prerogative of the executive. Then it limits
the power of Congress to subtract from this prerogative of the
President to grant executive clemency by limiting the power of
Congress to only corrupt practices laws. There are many other crimes
more serious than these. Under this amendment, Congress cannot limit
the power of executive clemency in cases of drug addiction and drug
pushing which are very, very serious crimes that can endanger the
State; also, rape with murder, kidnapping and treason. Aside from the
fact that it is a derogation of the power of the President to grant
executive clemency, it is also defective in that it singles out just one
kind of crime. There are far more serious crimes which are not
included.
MR. REGALADO. I will just make one observation on that. We admit
that the pardoning power is anexecutive power. But even in the
provisions on the COMELEC, one will notice that constitutionally, it is
required that there be a favorable recommendation by the Commission
on Elections for any violation of election laws.
At any rate, Commissioner Davide, as the principal proponent of that
and as a member of the Committee, has explained in the committee
meetings we had why he sought the inclusion of this particular
provision. May we call on Commissioner Davide to state his position.
MR. DAVIDE. Madam President.
THE PRESIDENT. Commissioner Davide is recognized.
MR. DAVIDE. I am constrained to rise to object to the proposal. We
have just approved the Article on Accountability of Public Officers.
Under it, it is mandated that a public office is a public trust, and all
government officers are under obligation to observe the utmost of
responsibility, integrity, loyalty and efficiency, to lead modest lives and
to act with patriotism and justice.
In all cases, therefore, which would go into the verycore of the concept
that a public office is a public trust, the violation is itself a violation not
only of the economy but the moral fabric of public officials. And that is
the reason we now want that if there is any conviction for the violation
of the Anti-Graft and Corrupt Practices Act, which, in effect, is a
violation of the public trust character of the public office, no pardon
shall be extended to the offender, unless some limitations are imposed.
Originally, my limitation was, it should be with the concurrence of the
convicting court, but the Committee left it entirely to the legislature to
formulate the mechanics at trying, probably, to distinguish between
grave and less grave or serious cases of violation of the Anti-Graft and
Corrupt Practices Act. Perhaps this is now the best time, since we have
strengthened the Article on Accountability of Public Officers, to
accompany it with a mandate that the President’s right to grant
executive clemency for offenders or violators of laws relating to the
concept of a public office may be limited by Congress itself.
MR. SARMIENTO. Madam President.
THE PRESIDENT. Commissioner Sarmiento is recognized.
MR. SARMIENTO. May I briefly speak in favor of the amendment by
deletion.
Madam President, over and over again, we have been saying and
arguing before this Constitutional Commission that we are
emasculating the powers of the presidency, and this provision to me is
another clear example of that. So, I speak against this provision. Even
the 1935 and the 1973 Constitutions do not provide for this kind of
provision.
I am supporting the amendment by deletion of Commissioner Tan.
MR. ROMULO. Commissioner Tingson would like to be recognized.
THE PRESIDENT. Commissioner Tingson is recognized.
MR. TINGSON. Madam President, I am also in favor of the amendment
by deletion because I am in sympathy with the stand of Commissioner
Francisco "Soc" Rodrigo. I do believe and we should remember that
above all the elected or appointed officers of our Republic, the leader is
the President. I believe that the country will be as the President is, and
if we systematically emasculate the power of this presidency, the time
may come whenhe will be also handcuffed that he will no longer be
able to act like he should be acting.
So, Madam President, I am in favor of the deletion of this particular
line.
MR. ROMULO. Commissioner Colayco would like to be recognized.
THE PRESIDENT. Commissioner Colayco is recognized.
MR. COLAYCO. Thank you very much, Madam President.
I seldom rise here to object to or to commend or to recommend the
approval of proposals, but now I find that the proposal of
Commissioner Tan is worthy of approval of this body.
Why are we singling out this particular offense? There are other crimes
which cast a bigger blot on the moral character of the public officials.
Finally, this body should not be the first one to limit the almost
absolute power of our Chief Executive in deciding whether to pardon,
to reprieve or to commute the sentence rendered by the court.
I thank you.
THE PRESIDENT. Are we ready to vote now?
MR. ROMULO. Commissioner Padilla would like to be recognized, and
after him will be Commissioner Natividad.
THE PRESIDENT. Commissioner Padilla is recognized.
MR. PADILLA. Only one sentence, Madam President. The
Sandiganbayan has been called the Anti-Graft Court, so if this is allowed
to stay, it would mean that the President’s power togrant pardon or
reprieve will be limited to the cases decided by the Anti-Graft Court,
when as already stated, there are many provisions inthe Revised Penal
Code that penalize more serious offenses.
Moreover, when there is a judgment of conviction and the case merits
the consideration of the exercise of executive clemency, usually under
Article V of the Revised Penal Code the judge will recommend such
exercise of clemency. And so, I am in favor of the amendment
proposed by Commissioner Tan for the deletion of this last sentence in
Section 17.
THE PRESIDENT. Are we ready to vote now, Mr. Floor Leader?
MR. NATIVIDAD. Just one more.
THE PRESIDENT. Commissioner Natividad is recognized.
MR. NATIVIDAD. I am also against this provision which will again chip
more powers from the President. In case of other criminals convicted in
our society, we extend probation to them while in this case, they have
already been convicted and we offer mercy. The only way we can offer
mercy to them is through this executive clemency extended to them by
the President. If we still close this avenue to them, they would be
prejudiced even worse than the murderers and the more vicious killers
in our society. I do not think they deserve this opprobrium and
punishment under the new Constitution.
I am in favor of the proposed amendment of Commissioner Tan.
MR. ROMULO. We are ready tovote, Madam President.
THE PRESIDENT. Is this accepted by the Committee?
MR. REGALADO. The Committee, Madam President, prefers to submit
this to the floor and also because of the objection of the main
proponent, Commissioner Davide. So we feel that the Commissioners
should vote on this question.
VOTING
THE PRESIDENT. As many as are in favor of the proposed amendment
of Commissioner Tan to delete the last sentence of Section 17
appearing on lines 7, 8 and 9, please raise their hand. (Several
Members raised their hand.)
As many as are against, please raise their hand. (Few Members raised
their hand.)
The results show 34 votes in favor and 4 votes against; the amendment
is approved.  (Emphases supplied.)
30
The proper interpretation of Articles
36 and 41 of the Revised Penal Code.
The foregoing pronouncements solidify the thesis that Articles 36 and
41 of the Revised Penal Code cannot, in any way, serve to abridge or
diminish the exclusive power and prerogative of the President to
pardon persons convicted of violating penal statutes.
The Court cannot subscribe to Risos-Vidal’s interpretation that the said
Articles contain specific textual commands which must be strictly
followed in order to free the beneficiary of presidential grace from the
disqualifications specifically prescribed by them.
Again, Articles 36 and 41 of the Revised Penal Code provides:
ART. 36. Pardon; its effects.– A pardon shall not work the restoration of
the right to hold publicoffice, or the right of suffrage, unless such rights
be expressly restored by the terms of the pardon.
A pardon shall in no case exempt the culprit from the payment of the
civil indemnity imposed upon him by the sentence.
xxxx
ART. 41. Reclusion perpetua and reclusion temporal – Their accessory
penalties.– The penalties of reclusion perpetua and reclusion temporal
shall carry with them that of civil interdiction for life or during the
period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though
pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphases supplied.)
A rigid and inflexible reading of the above provisions of law, as
proposed by Risos-Vidal, is unwarranted, especially so if it will defeat or
unduly restrict the power of the President to grant executive clemency.
It is well-entrenched in this jurisdiction that where the words of a
statute are clear, plain, and free from ambiguity, it must be given its
literal meaning and applied without attempted interpretation. Verba
legis non est recedendum. From the words of a statute there should be
no departure.  It is this Court’s firm view that the phrase in the
31
presidential pardon at issue which declares that former President
Estrada "is hereby restored to his civil and political rights" substantially
complies with the requirement of express restoration.
The Dissent of Justice Marvic M.V.F. Leonen agreed with Risos Vidal
that there was no express remission and/or restoration of the rights of
suffrage and/or to hold public office in the pardon granted to former
President Estrada, as required by Articles 36 and 41 of the Revised
Penal Code.
Justice Leonen posits in his Dissent that the aforementioned codal
provisions must be followed by the President, as they do not abridge or
diminish the President’s power to extend clemency. He opines that
they do not reduce the coverage of the President’s pardoning power.
Particularly, he states:
Articles 36 and 41 refer only to requirements of convention or form.
They only provide a procedural prescription. They are not concerned
with areas where or the instances when the President may grant
pardon; they are only concerned with how he or she is to exercise such
power so that no other governmental instrumentality needs to
intervene to give it full effect.
All that Articles 36 and 41 do is prescribe that, if the President wishes
to include in the pardon the restoration of the rights of suffrage and to
hold public office, or the remission of the accessory penalty of
perpetual absolute disqualification,he or she should do so expressly.
Articles 36 and 41 only ask that the President state his or her intentions
clearly, directly, firmly, precisely, and unmistakably. To belabor the
point, the President retains the power to make such restoration or
remission, subject to a prescription on the manner by which he or she
is to state it.
32
With due respect, I disagree with the overbroad statement that
Congress may dictate as to how the President may exercise his/her
power of executive clemency. The form or manner by which the
President, or Congress for that matter, should exercise their respective
Constitutional powers or prerogatives cannot be interfered with unless
it is so provided in the Constitution. This is the essence of the principle
of separation of powers deeply ingrained in our system of government
which "ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its
own constitutionally allocated sphere."  Moreso, this fundamental
33
principle must be observed if noncompliance with the form imposed by
one branch on a co-equal and coordinate branch will result into the
diminution of an exclusive Constitutional prerogative.
For this reason, Articles 36 and 41 of the Revised Penal Code should be
construed in a way that will give full effect to the executive clemency
granted by the President, instead of indulging in an overly strict
interpretation that may serve to impair or diminish the import of the
pardon which emanated from the Office of the President and duly
signed by the Chief Executive himself/herself. The said codal provisions
must be construed to harmonize the power of Congress to define
crimes and prescribe the penalties for such crimes and the power of
the President to grant executive clemency. All that the said provisions
impart is that the pardon of the principal penalty does notcarry with it
the remission of the accessory penalties unless the President expressly
includes said accessory penalties in the pardon. It still recognizes the
Presidential prerogative to grant executive clemency and, specifically,
to decide to pardon the principal penalty while excluding its accessory
penalties or to pardon both. Thus, Articles 36 and 41 only clarify the
effect of the pardon so decided upon by the President on the penalties
imposedin accordance with law.
A close scrutiny of the text of the pardon extended to former President
Estrada shows that both the principal penalty of reclusion perpetua and
its accessory penalties are included in the pardon. The first sentence
refers to the executive clemency extended to former President Estrada
who was convicted by the Sandiganbayan of plunder and imposed a
penalty of reclusion perpetua. The latter is the principal penalty
pardoned which relieved him of imprisonment. The sentence that
followed, which states that "(h)e is hereby restored to his civil and
political rights," expressly remitted the accessory penalties that
attached to the principal penalty of reclusion perpetua. Hence, even if
we apply Articles 36 and 41 of the Revised Penal Code, it is indubitable
from the textof the pardon that the accessory penalties of civil
interdiction and perpetual absolute disqualification were expressly
remitted together with the principal penalty of reclusion perpetua.
In this jurisdiction, the right toseek public elective office is recognized
by law as falling under the whole gamut of civil and political rights.
Section 5 of Republic Act No. 9225,  otherwise known as the
34
"Citizenship Retention and Reacquisition Act of 2003," reads as follows:
Section 5. Civil and Political Rights and Liabilities.– Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and
political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions: (1) Those intending to exercise their right of suffrage must
meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee
Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall
meet the qualifications for holding such public office as
required by the Constitution and existing laws and, at the time
of the filing of the certificate of candidacy, make a personal
and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;
(3) Those appointed to any public office shall subscribe and
swear an oath of allegiance to the Republic of the Philippines
and its duly constituted authorities prior to their assumption of
office: Provided, That they renounce their oath of allegiance to
the country where they took that oath; (4) Those intending to
practice their profession in the Philippines shall apply with the
proper authority for a license or permit to engage in such
practice; and
(5) That right to vote or be elected or appointed to any public
office in the Philippines cannot be exercised by, or extended
to, those who:
(a) are candidates for or are occupying any public
office in the country of which theyare naturalized
citizens; and/or
(b) are in active service as commissioned or non
commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphases
supplied.)
No less than the International Covenant on Civil and Political Rights, to
which the Philippines is a signatory, acknowledges the existence of said
right. Article 25(b) of the Convention states: Article 25
Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in Article 2 and without unreasonable
restrictions:
xxxx
(b) To vote and to be electedat genuine periodic elections which shall
be by universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors[.] (Emphasis
supplied.)
Recently, in Sobejana-Condon v. Commission on Elections,  the Court
35
unequivocally referred to the right to seek public elective office as a
political right, to wit:
Stated differently, it is an additional qualification for elective office
specific only to Filipino citizens who re-acquire their citizenship under
Section 3 of R.A. No. 9225. It is the operative act that restores their
right to run for public office. The petitioner’s failure to comply there
with in accordance with the exact tenor of the law, rendered
ineffectual the Declaration of Renunciation of Australian Citizenship she
executed on September 18, 2006. As such, she is yet to regain her
political right to seek elective office. Unless she executes a sworn
renunciation of her Australian citizenship, she is ineligible to run for
and hold any elective office in the Philippines. (Emphasis supplied.)
Thus, from both law and jurisprudence, the right to seek public elective
office is unequivocally considered as a political right. Hence, the Court
reiterates its earlier statement that the pardon granted to former
President Estrada admits no other interpretation other than to mean
that, upon acceptance of the pardon granted tohim, he regained his
FULL civil and political rights – including the right to seek elective office.
On the other hand, the theory of Risos-Vidal goes beyond the plain
meaning of said penal provisions; and prescribes a formal requirement
that is not only unnecessary but, if insisted upon, could be in
derogation of the constitutional prohibition relative to the principle
that the exercise of presidential pardon cannot be affected by
legislative action.
Risos-Vidal relied heavily on the separate concurring opinions in
Monsanto v. Factoran, Jr.  to justify her argument that an absolute
36
pardon must expressly state that the right to hold public office has
been restored, and that the penalty of perpetual absolute
disqualification has been remitted.
This is incorrect.
Her reliance on said opinions is utterly misplaced. Although the learned
views of Justices Teodoro R. Padilla and Florentino P. Feliciano are to be
respected, they do not form partof the controlling doctrine nor to be
considered part of the law of the land. On the contrary, a careful
reading of the majority opinion in Monsanto, penned by no less than
Chief Justice Marcelo B. Fernan, reveals no statement that denotes
adherence to a stringent and overly nuanced application of Articles 36
and 41 of the Revised Penal Code that will in effect require the
President to use a statutorily prescribed language in extending
executive clemency, even if the intent of the President can otherwise
be deduced from the text or words used in the pardon. Furthermore, as
explained above, the pardon here is consistent with, and not contrary
to, the provisions of Articles 36 and 41.
The disqualification of former President Estrada under Section 40 of the
LGC in relation to Section 12 of the OEC was removed by his acceptance
of the absolute pardon granted to him.
Section 40 of the LGC identifies who are disqualified from running for
any elective local position. Risos-Vidal argues that former President
Estrada is disqualified under item (a), to wit:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence[.] (Emphasis
supplied.)
Likewise, Section 12 of the OEC provides for similar prohibitions, but it
provides for an exception, to wit:
Section 12. Disqualifications. – x x x unless he has been given plenary
pardon or granted amnesty. (Emphasis supplied.)
As earlier stated, Risos-Vidal maintains that former President Estrada’s
conviction for plunder disqualifies him from running for the elective
local position of Mayor of the City of Manila under Section 40(a) of the
LGC. However, the subsequent absolute pardon granted to former
President Estrada effectively restored his right to seek public elective
office. This is made possible by reading Section 40(a) of the LGC in
relation to Section 12 of the OEC.
While it may be apparent that the proscription in Section 40(a) of the
LGC is worded in absolute terms, Section 12 of the OEC provides a legal
escape from the prohibition – a plenary pardon or amnesty. In other
words, the latter provision allows any person who has been granted
plenary pardon or amnesty after conviction by final judgment of an
offense involving moral turpitude, inter alia, to run for and hold any
public office, whether local or national position.
Take notice that the applicability of Section 12 of the OEC to candidates
running for local elective positions is not unprecedented. In Jalosjos, Jr.
v. Commission on Elections,  the Court acknowledged the
37
aforementioned provision as one of the legal remedies that may be
availed of to disqualify a candidate in a local election filed any day after
the last day for filing of certificates of candidacy, but not later than the
date of proclamation.  The pertinent ruling in the Jalosjos case is
38
quoted as follows:
What is indisputably clear is that false material representation of
Jalosjos is a ground for a petition under Section 78. However, since the
false material representation arises from a crime penalized by prision
mayor, a petition under Section 12 ofthe Omnibus Election Code or
Section 40 of the Local Government Code can also be properly filed.
The petitioner has a choice whether to anchor his petition on Section
12 or Section 78 of the Omnibus Election Code, or on Section 40 of the
Local Government Code. The law expressly provides multiple remedies
and the choice of which remedy to adopt belongs to
petitioner.  (Emphasis supplied.)
39
The third preambular clause of the pardon did not operate to make the
pardon conditional.
Contrary to Risos-Vidal’s declaration, the third preambular clause of the
pardon, i.e., "[w]hereas, Joseph Ejercito Estrada has publicly committed
to no longer seek any elective position or office," neither makes the
pardon conditional, nor militate against the conclusion that former
President Estrada’s rights to suffrage and to seek public elective office
have been restored.
This is especially true as the pardon itself does not explicitly impose a
condition or limitation, considering the unqualified use of the term
"civil and political rights"as being restored. Jurisprudence educates that
a preamble is not an essential part of an act as it is an introductory or
preparatory clause that explains the reasons for the enactment, usually
introduced by the word "whereas."  Whereas clauses do not form part
40
of a statute because, strictly speaking, they are not part of the
operative language of the statute.  In this case, the whereas clause at
41
issue is not an integral part of the decree of the pardon, and therefore,
does not by itself alone operate to make the pardon conditional or to
make its effectivity contingent upon the fulfilment of the
aforementioned commitment nor to limit the scope of the pardon.
On this matter, the Court quotes with approval a relevant excerpt of
COMELEC Commissioner Maria Gracia Padaca’s separate concurring
opinion in the assailed April 1, 2013 Resolution of the COMELEC in SPA
No. 13-211 (DC), which captured the essence of the legal effect of
preambular paragraphs/whereas clauses, viz:
The present dispute does not raise anything which the 20 January 2010
Resolution did not conclude upon. Here, Petitioner Risos-Vidal raised
the same argument with respect to the 3rd "whereas clause" or
preambular paragraph of the decree of pardon. It states that "Joseph
Ejercito Estrada has publicly committed to no longer seek any elective
position or office." On this contention, the undersigned reiterates the
ruling of the Commission that the 3rd preambular paragraph does not
have any legal or binding effect on the absolute nature of the pardon
extended by former President Arroyo to herein Respondent. This ruling
is consistent with the traditional and customary usage of preambular
paragraphs. In the case of Echegaray v. Secretary of Justice, the
Supreme Court ruled on the legal effect of preambular paragraphs or
whereas clauses on statutes. The Court stated, viz.:
Besides, a preamble is really not an integral part of a law. It is merely
an introduction to show its intent or purposes. It cannot be the origin
of rights and obligations. Where the meaning of a statute is clear and
unambiguous, the preamble can neither expand nor restrict its
operation much less prevail over its text.
If former President Arroyo intended for the pardon to be conditional on
Respondent’s promise never to seek a public office again, the former
ought to have explicitly stated the same in the text of the pardon itself.
Since former President Arroyo did not make this an integral part of the
decree of pardon, the Commission is constrained to rule that the 3rd
preambular clause cannot be interpreted as a condition to the pardon
extended to former President Estrada.  (Emphasis supplied.)
42
Absent any contrary evidence, former President Arroyo’s silence on
former President Estrada’s decision torun for President in the May
2010 elections against, among others, the candidate of the political
party of former President Arroyo, after the latter’s receipt and
acceptance of the pardon speaks volume of her intention to restore
him to his rights to suffrage and to hold public office.
Where the scope and import of the executive clemency extended by
the President is in issue, the Court must turn to the only evidence
available to it, and that is the pardon itself. From a detailed review
ofthe four corners of said document, nothing therein gives an iota of
intimation that the third Whereas Clause is actually a limitation,
proviso, stipulation or condition on the grant of the pardon, such that
the breach of the mentioned commitment not to seek public office will
result ina revocation or cancellation of said pardon. To the Court, what
it is simply is a statement of fact or the prevailing situation at the time
the executive clemency was granted. It was not used as a condition to
the efficacy orto delimit the scope of the pardon.
Even if the Court were to subscribe to the view that the third Whereas
Clausewas one of the reasons to grant the pardon, the pardon itself
does not provide for the attendant consequence of the breach thereof.
This Court will be hard put to discern the resultant effect of an eventual
infringement. Just like it will be hard put to determine which civil or
political rights were restored if the Court were to take the road
suggested by Risos-Vidal that the statement "[h]e is hereby restored to
his civil and political rights" excludes the restoration of former
President Estrada’s rights to suffrage and to hold public office. The
aforequoted text ofthe executive clemency granted does not provide
the Court with any guide asto how and where to draw the line between
the included and excluded political rights.
Justice Leonen emphasizes the point that the ultimate issue for
resolution is not whether the pardon is contingent on the condition
that former President Estrada will not seek janother elective public
office, but it actually concerns the coverage of the pardon – whether
the pardon granted to former President Estrada was so expansive as to
have restored all his political rights, inclusive of the rights of suffrage
and to hold public office. Justice Leonen is of the view that the pardon
in question is not absolute nor plenary in scope despite the statement
that former President Estrada is "hereby restored to his civil and
political rights," that is, the foregoing statement restored to former
President Estrada all his civil and political rights except the rights
denied to him by the unremitted penalty of perpetual absolute
disqualification made up of, among others, the rights of suffrage and to
hold public office. He adds that had the President chosen to be so
expansive as to include the rights of suffrage and to hold public office,
she should have been more clear on her intentions.
However, the statement "[h]e is hereby restored to his civil and
political rights," to the mind of the Court, iscrystal clear – the pardon
granted to former President Estrada was absolute, meaning, it was not
only unconditional, it was unrestricted in scope, complete and plenary
in character, as the term "political rights"adverted to has a settled
meaning in law and jurisprudence.
With due respect, I disagree too with Justice Leonen that the omission
of the qualifying word "full" can be construed as excluding the
restoration of the rights of suffrage and to hold public office. There
appears to be no distinction as to the coverage of the term "full
political rights" and the term "political rights" used alone without any
qualification. How to ascribe to the latter term the meaning that it is
"partial" and not "full" defies one’s understanding. More so, it will be
extremely difficult to identify which of the political rights are restored
by the pardon, when the text of the latter is silent on this matter.
Exceptions to the grant of pardon cannot be presumed from the
absence of the qualifying word "full" when the pardon restored the
"political rights" of former President Estrada without any exclusion or
reservation.
Therefore, there can be no other conclusion but to say that the pardon
granted to former President Estrada was absolute in the absence of a
clear, unequivocal and concrete factual basis upon which to anchor or
support the Presidential intent to grant a limited pardon.
To reiterate, insofar as its coverageis concerned, the text of the pardon
can withstand close scrutiny even under the provisions of Articles 36
and 41 of the Revised Penal Code.
The COMELEC did not commit grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed Resolutions.
In light of the foregoing, contrary to the assertions of Risos-Vidal, the
COMELEC did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing the assailed Resolutions.
The Court has consistently held that a petition for certiorariagainst
actions of the COMELEC is confined only to instances of grave abuse of
discretion amounting to patentand substantial denial of due process,
because the COMELEC is presumed to be most competent in matters
falling within its domain.
43
As settled in jurisprudence, grave abuse of discretion is the arbitrary
exercise of power due to passion, prejudice or personal hostility; or the
whimsical, arbitrary, or capricious exercise of power that amounts to
an evasion or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be condemned as
having been done with grave abuse of discretion, such an abuse must
be patent and gross.44
The arguments forwarded by Risos-Vidal fail to adequately
demonstrate any factual or legal bases to prove that the assailed
COMELEC Resolutions were issued in a "whimsical, arbitrary or
capricious exercise of power that amounts to an evasion orrefusal to
perform a positive duty enjoined by law" or were so "patent and gross"
as to constitute grave abuse of discretion.
On the foregoing premises and conclusions, this Court finds it
unnecessary to separately discuss Lim's petition-in-intervention, which
substantially presented the same arguments as Risos-Vidal's petition.
WHEREFORE, the petition for certiorari and petition-inintervention are
DISMISSED. The Resolution dated April 1, 2013 of the Commission on
Elections, Second Division, and the Resolution dated April 23, 2013 of
the Commission on Elections, En bane, both in SPA No. 13-211 (DC), are
AFFIRMED.

SO ORDERED.