CHAPTER IV

THE RULES AND LIMITATIONS IN THE GRANT OF PROBATION

A. NATURE OF GRANTING PROBATION

I. GRANT OF PROBATION

Section 4 of PD 968 - Subject to the provisions of this Decree, the court may, after it has 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. (As amended by PD 1990).

II. CRITERIA FOR PLACING AN OFFENDER ON PROBATION (SECTION 8 OF PD NO. 968)

QUESTION:

Will probation be automatically granted to one whose sentence is six (6) years or less? No, the
offender must fit the criteria under Section 8 of PD 968.

Under Section 8 of PD No. 968, 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:

1. The offender is in need of correctional treatment that can be provided most effectively by his
commitment to an institution; or
2. There is undue risk that during the period of probation the offender will commit another crime;
or
3. Probation will depreciate the seriousness of the offense committed.

However, under Sec. 70 of Republic Act No. 9165, the Comprehensive Dangerous Drugs Act of 2002, the
first-time minor offender who upon promulgation of the sentence, the court may, in its discretion,
placed the accused under probation, even if the sentence provided under Sec. 11 of the Act is higher
than that provided under Probation Law.

SECTION 70 OF REPUBLIC ACT NO. 9165. Probation or Community Service for a First-Time Minor
Offender In lieu of Imprisonment. – Upon promulgation of the sentence, the court may, in its discretion,
place the accused under probation, even if the sentence provided under this Act is higher than that
provided under existing law on probation, or impose community service instead of imprisonment. In
case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board
through the DOH in coordination with the Board of Pardons and Parole and the Probation
Administration. Upon compliance with the conditions of the probation, the Board shall submit a written
report to the court recommending termination of probation and a final discharge of the probationer,
whereupon the court shall issue such an order.

TOLENTINO VS. JUDGE ALCONCEL

121 SCRA 92; G.R. No. L-63400; March 18, 1983

Application for Probation can be denied on the ground that it will depreciate the seriousness of the
offense committed.

FACTS: Petitioner was charged with violation of Section 4, Article II of Rep. Act No. 6425, otherwise
known as the Dangerous Drugs Act of 1972. Petitioner entered a plea of not guilty. However, after the
prosecution had presented part of its evidence, the petitioner desires to change his plea of not guilty to
that of guilty to a lesser offense of possession of Indian Hemp [marijuana], under Section 8 of Article II of
Rep. Act No. 6425.

As no objection was interposed by the fiscal, the court allowed the petitioner to withdraw his former
plea of not guilty and to enter a plea of guilty to a lesser offense. Petitioner was thereupon sentenced to
imprisonment of 6 months and 1 day to 2 years and 4 months.

Petitioner applied for probation. Respondent judge forthwith directed the probation officer to conduct a
POST SENTENCE INVESTIGATION. After conducting such an investigation, the probation officer,
recommends that the petitioner be placed on a two-year probation.

However, the respondent judge denies the petitioner's application on the ground that it will depreciate
the seriousness of the offense committed.

Hence, the instant recourse.

ISSUE: Whether the grant of probation will depreciate the seriousness of the offense committed.

HELD: Yes. Section 5 of P.D. 968 provides, to wit:

SEC. 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.

It is evident from the foregoing that the potentiality of the offender to reform is not the sole, much less
the primordial factor, that should be considered in the grant or denial of an application for probation.
Equal regard to the demands of justice and public interest must be observed. Thus, Section 8 of P.D. 968
lays down the criteria for the placing of an offender on probation, as follows:
Sec. 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) ...

b) ...

c) probation will depreciate the seriousness of the offense committed.

"The conclusion of the respondent judge that "probation will depreciate the seriousness of the offense
committed" is based principally on the admission by the petitioner himself, that he was caught in the act
of selling marijuana cigarettes. Petitioner did not deny or dispute the veracity of the fact that he was
caught in flagrante delicto of selling marijuana cigarettes. He merely attempted to justify his criminal act
by explaining in his motion for reconsideration that "he did it only to make some money for the family
during Christmas. Such admission renders a hearing on the application for probation an unnecessary
surplusage and an Idle ceremony.

Proliferation of prohibited drugs in the country has remained a serious threat to the well-being of the
people. It has necessitated an all-out intensified campaign on the part of the law-enforcers against users
as well as pushers thereof. If only to emphasize the gravity of the drug menace, the Batasan Pambansa
has seen fit to increase the penalty for violation of Section 8,

Article II of Rep. Act 6425. Thus, while under Rep. Act 6425, as amended by P.D. 44, possession or use of
marijuana was punishable by imprisonment of 6 months and 1 day to 2 years and 4 months and a fine
ranging from P600.00 to P6,000.00-the penalty imposed upon petitioner herein-POSSESSION AND USE
thereof is now punishable by imprisonment ranging from 6 years and 1 day to 12 years and fine ranging
from P6,000.00 to P12,000.00 under B.P. Blg. 179.

The observation of the Solicitor General on this increase of penalty is apropos: The implication is clear.
The penalties were increased to take it out of the range of probationable offenses. Thus, the State has
spoken and considers that this is one case where probation will depreciate the offense committed, and
will not serve the ends of justice and the best interest of the community, particularly, the innocent and
gullible young.

III. PROBATION IS NOT A MATTER OF RIGHT BUT A PRIVILEGE

In the above case of TOLENTINO VS. JUDGE ALCONCEL, the Supreme Court held that probation is a mere
privilege and its grant rests solely upon the discretion of the court. This discretion is to be exercised
primarily for the benefit of an organized society and only incidentally for the benefit of the accused.

Probation cannot be demanded as a matter of right. It is a privilege. Hence, only those persons who are
qualified may apply for probation. Its grant depends upon the discretion of the trial court. 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.
The grant of probation results in the release of the petitioner subject to the terms and conditions
imposed by the court and to the supervision of the Probation Officer. However, under R.A. 9344 or
Juvenile Justice and Welfare Act of 2006, a Child in Conflict with the Law (CICL) is granted the right to
probation as an alternative to imprisonment if qualified under the Probation Law.

IV. BASIS OF GRANTING PROBATION

In DELA CRUZ VS. CALLEJO; the basis of granting probation is the sentence imposed by the trial court.
Convicted for highway robbery sentenced to 11 years, 4 months, and 1 day 12 years penalty was
reduced to 1 year, 8 months, and 5 months and 1 day. He applied for probation based on the appellate
court. The trial court denied. Supreme Court denial is proper to the provision of the law.

V. PROBATION IS NOT A SENTENCE

In Baclayon vs. Mutia, 129 SCRA 148 (April 30, 1984) it was held that an order placing the defendant on
"PROBATION" IS NOT A"SENTENCE" but is rather in effect a suspension of the imposition of sentence. It
is not a final judgment but is rather an “interlocutory judgment" in the nature of a conditional order
placing the convicted defendant under the supervision of the court for his reformation, to be followed
by a final judgment of discharge, if the conditions of the probation are complied with, or by a final
judgment of sentence if the conditions are violated.

Probation is not a suspension of sentence. A suspension of a sentence postpones the execution of

sentence for a definite time, while probation suspends the sentence during good behavior.

VI. HOW MANY TIMES CAN ONE BE GRANTED PROBATION?

An offender can be granted probation ONLY ONCE IN HIS LIFETIME.

VII. GRANTING OR DENYING PROBATION NOT BE APPEALABLE

Under PD No. 1990, an order granting or denying probation shall not be appealable.

VIII. PROBATION AND APPEAL IS MUTUALLY EXCLUSIVE REMEDIES

Later, the amendment of Section 4 of P.D. No. 968 by P.D. No. 1990 imposed a condition upon the
grant of probation, thus: “Provided, that no application for probation shall be entertained or granted if
the defendant has perfected an appeal from a judgment of conviction." The application for probation
was no longer allowed if the accused had perfected an appeal from the judgment of conviction.

The reason for the disallowance of probation where an appeal has been made by the accused is stated
in 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".

In view of this change, jurisprudence treated appeal and probation as MUTUALLY EXCLUSIVE REMEDIES.
Thus, where the penalty imposed by the trial court is not probationable, and the appellate court
modifies the penalty by reducing it to within the probationable limit, the same prohibition should still
apply and he is not entitled to avail of probation.

In Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625. the Supreme Court stated that
"[Section 4 of] the Probation Law was amended 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." Thus, 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.

The Supreme Court explained that the intention of the new law is to make appeal and probation
mutually exclusive remedies. Jurisprudence at that time stated that the Probation Law 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."

However, in the fairly recent case of Colinares vs. People, G.R. No. 182748, December 13, 2011, the
Supreme Court took another look at the probation law, and allowed the grant of probation to an
accused who has appealed his conviction. In this case, the accused was originally sentenced by the
Regional Trial Court to imprisonment exceeding 6 years and one day, which disqualified from applying
for probation. Upon his appeal of the case to the Court of Appeals, the appellate court lowered the
penalty to less than 6 years and one day. The Supreme Court reasoned that since the trial court imposed
a (wrong) penalty beyond the probationable range, thus depriving the accused of the option to apply for
probation when he appealed, the element of speculation that the law sought to curb was not present.

In a real sense, the Court's finding on appeal that the accused was guilty, not of a non-probationable
penalty, but only of a penalty which may be subject to probation, 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 less than 6 years
and one day. This would have afforded the accused the right to apply for probation.

The Supreme Court said that the question is ultimately one of fairness. It is not fair to deny the accused
the right to apply for probation when the new penalty that the Court imposes on him after he appealed
his original conviction is, unlike the one erroneously imposed by the trial court, subject to probation.

LOURDES A. SABLE vs. PEOPLE OF THE PHILIPPINES

G.R. No. 17796: April 7, 2009

FACTS: Petitioner was convicted of the crime of Falsification of Public Documents under Article 172(1) in
relation to Article 171 of the Revised Penal Code on November 28, 2000, but acquitted Ildefonsa Anoba
for finding not guilty. However, the court finds that Lourdes Abellanosa Sable was guilty beyond
reasonable doubt of the crime charged and hereby sentences her to suffer an indeterminate penalty of
4 years, 2 months, and one day to 6 years. On August 25, 2003 petitioner intimated her desire to apply
for probation instead of appealing the judgment of conviction which was denied.

ISSUE: Whether or not the denial of the application for probation is tenable.

HELD: The court held that 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 the time, effort, and expenses to jettison an appeal. The pertinent
provision of the Probation Law, as amended, reads:

Sec. 4. Grant of Probation. —Subject to the provisions of this Decree, the trial court may, after it has
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. (Emphasis supplied.)

It is quite clear from the afore-quoted provision that an application for probation must be made within
the period for perfecting an appeal, and the filing of the application after the time of appeal has lapsed
is injurious to the recourse of the applicant. In the present petition before us, the petitioner filed the
application for probation on 25 August 2003, almost eight months from the time the assailed judgment
of the RTC became final. Clearly, the application for probation was filed out of time pursuant to Rule
122, Sec. 6 of the Rules of Court, which states that an "appeal must be taken within fifteen (15) days
from promulgation of the judgment or from notice of the final order appealed from. “In Palo v.
Militante, this Court held that what the law requires is that the application for probation must be filed
within the 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.
Furthermore, the application for probation must necessarily fail, because before the application was
instituted, the petitioner already filed a Notice of Appeal before the RTC on 17 June 2003.

The Probation Law is patently clear that “no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction. “The 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 affirmation 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.

This was the reason why 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.

COLINARES VS. PEOPLE

G.R. No. 182748, December 13, 2011
FACTS: Accused-appellant Arnel Colinares (Arnel) was charged with frustrated homicide for
hitting the head of the private complainant with a piece of stone. He alleged self-defense but the
trial court found him guilty of the crime charged and sentenced him to suffer imprisonment from 2 years
and 4 months of prison correctional, as minimum, to 6 years and 1 day of prison mayor, as maximum.
Since the maximum probationable imprisonment under the law was only up to 6 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. His conviction was affirmed by the CA. Hence, this appeal to
the Supreme Court.

ISSUE: Given a finding that Arnel is entitled to conviction for a lower [lesser] offense [of attempted
homicide] and a reduced probationable penalty, may he still apply for probation on remand of the case
to the trial court?

RULING: [The Supreme Court voted to PARTIALLY GRANT the appeal, MODIFIED the CA decision, and
found Arnel GUILTY of ATTEMPTED (not frustrated) HOMICIDE and SENTENCED him to an indeterminate
but PROBATIONABLE penalty of 4 months of arresto mayor as minimum and 2 years and 4 months of
prison correctional as maximum. The Court also voted 8-7 to allow Arnel to APPLY FOR PROBATION
within 15 days from a notice that the record of the case has been remanded for execution to the trial
court.]

YES, Arnel may still apply for probation on remand of the case to the trial court.

Ordinarily, Arnel would no longer be entitled to apply for probation, he has appealed the judgment of
the RTC convicting him of frustrated homicide. But the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as a minimum, to two years and four months of prison
correctional, as maximum. With this new penalty, it would be fair to allow him the right to apply for
probation upon remand of the case to the RTC.

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.
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? Here, 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. 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. This would have afforded
Arnel the right to apply for probation. DISSENTING AND CONCURRING OPINION OF JUSTICE PERALTA, in
view of the provision in 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 jurisprudence treats appeal and probation as mutually exclusive remedies because the law is
unmistakable about it.

However, it has been proposed 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, as this is equitable.

In this regard, an accused may be allowed to apply for probation even if he has filed a notice of appeal,
provided that his appeal is limited to the following grounds:

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. 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.

Thus, the accused should be allowed to file an appeal under the 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, then the accused should 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 apply for probation.

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 foretasted
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 foretasted grounds for appeal
would give a qualified convicted offender 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:

a) 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

b) 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.

There is wisdom to the majority opinion, but the problem is that the law expressly prohibits the filing of
an application for probation beyond the period for filing an appeal. When the meaning is clearly
discernible from the language of the statute, there is no room for construction or interpretation.

Thus, the remedy is the amendment of Section 4 of P.D. No. 968, and not adaptation through judicial
interpretation. CONCURRING AND DISSENTING OPINIONVILLARAMA, JR., J.: It must be stressed that in
foreclosing the right to appeal his conviction once the accused files an application for probation, the
State proceeds from the reasonable assumption that the accused’s submission to rehabilitation and
reform is indicative of remorse.

And in prohibiting the trial court from entertaining an application for probation if the accused has
perfected his appeal, the State ensures that the accused takes seriously the privilege or clemency
extended to him, that at the very least he disavows criminal tendencies.

Consequently, this Court’s grant of relief to herein accused whose sentence was reduced
by this Court to within the probationable limit, with a declaration that accused may now apply for
probation, would diminish the seriousness of that privilege because in questioning his conviction
accused never admitted his guilt. It is of no moment that the trial court’s conviction of petitioner for
frustrated homicide is now corrected by this Court to only attempted homicide.

Petitioner’s physical assault on the victim with intent to kill is unlawful or criminal regardless of
whether the stage of commission was frustrated or attempted only. Allowing the petitioner the right
to apply for probation under the reduced penalty glosses over the fact that accused’s availment of
appeal with such expectation amounts to the same thing: speculation and opportunism on the part of
the accused in violation of the rule that appeal and probation are mutually exclusive remedies.

WILLY TAN y CHUA vs. PEOPLE OF THE PHILIPPINES

G.R. No. 148194:
April 12, 2002

FACTS: Willy Tan was found guilty of bigamy, and then he applied for probation which was granted by
the trial court but the release was withheld in view of the filing by the prosecution a motion for
modification of penalty. He later filed a notice of appeal.
ISSUE: Whether or not he is entitled to an appeal after he has applied for probation.

HELD: In fine, the petitioner had taken an appropriate legal step in filing a notice of appeal with the trial
court. Ordinarily, the Court should have the case remanded to the Court of Appeals for further
proceedings. The clear impingement upon the petitioner’s basic right against double jeopardy, however,
should here warrant the exercise of the prerogative by this Court to relax the stringent application of the
rules on the matter. When the trial court increased the penalty on the petitioner for his crime of bigamy
after it had already pronounced judgment and on which basis he then, in fact, applied for probation, the
previous verdict could only be deemed to have lapsed into finality. Section 7, Rule 120, of the Rules on
Criminal Procedure that states Sec. 7.

Modification of judgment. A judgment of conviction may, upon motion of the accused, be modified or
set aside before it becomes final or before an appeal is perfected. Except where the death penalty is
imposed, a judgment 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 when the accused has waived in writing his
right to appeal, or has applied for probation-implements a substantive provision of the Probation Law
which enunciates that the mere filing of an application for probation forecloses the right to appeal.

Sec. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after its hall has
convicted and sentenced a defendant, and upon application by the 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
or 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. Such a waiver amounts to a voluntary
compliance with the decision and writes fines to the jurisdiction of the trial court over the judgment.
There is no principle better settled, or of more universal application, than that no court can reverse or
annul, reconsider, or amend its own final decree or judgment. Any attempt by the court to thereafter
alter, amend, or modify the same, except in respect to correct clerical errors, would be unwarranted.
DANIEL G. FAJARDO vs. COURT OF APPEAL S
G.R. No. 128508:
February 1, 1999

FACTS: On May 26, 1988, the Regional Trial Court, Branch 33, Iloilo City, convicted the petitioner of
violation of Batas Pambansa Bilang 22, and sentenced him to suffer the penalty of eight (8) months
imprisonment and to pay the costs, in Criminal Case No.14196. He appealed to the Court of Appeals.

By decision promulgated on February 27, 1990, the Court of Appeals affirmed the conviction. Upon the
remand of the record to the lower court, on June 2, 1995, the petitioner filed a motion for probation
contending that he was eligible for probation because at the time he committed the offense in 1981, an
accused who had appealed his conviction was still qualified to apply for probation and that the law that
barred an application for probation of an accused who had interposed an appeal was ex post facto in its
application, and, hence, not applicable to him. On January 5, 1996, the trial court denied petitioner's
motion for probation. On July 29, 1996, the petitioner filed with the Court of Appeals a petition for
certiorari to annul the lower court's denial of his application for probation. On November 12, 1996, the
Court of Appeals denied due course to the petition. Hence, this appeal.

ISSUE: Whether or not the petitioner is qualified to apply for probation under Presidential Decree No.
968 since he had appealed from his conviction in 1988, after Presidential Decree No. 1990 amending
Presidential Decree No. 968, became effective in 1986, providing that "no application for probation shall
be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.

HELD: Presidential Decree No. 1990, enacted on October 5, 1985, "was printed in Volume 81 of the
Official Gazette dated December 30, 1985 but said issue was released for circulation only on July 1,
1986; hence, P D 1990 became effective after fifteen(15) days from July 1, 1986, in accordance with
Article 2 of the Civil Code, or on July 16, 1986."It is not ex post facto in its application. The law applies
only to the accused convicted after its effectivity. An ex post facto law is one that punishes an act as a
crime that was innocent at the time of its commission. Presidential Decree No. 1990, like the Probation
Law that it amends, is not penal in character. It may not be considered as an ex post facto law. At the
time of the commission of the offense charged — violation of Batas Pambansa Bilang 22— in 1981, the
petitioner could have appealed if convicted and still availed himself of probation. However, petitioner
was convicted on May 26, 1988, and he appealed. At that time, the petitioner no longer had the option
to appeal and still apply for probation if unsuccessful in the appeal. Presidential Decree No. 1990 was
then in full effect.

Hence, he could no longer apply for probation since he had appealed. On October 13, 1997, the
Solicitor General submitted a manifestation positing the view that the petitioner's application for
probation may still be considered because when the petitioner committed the offense in 1981, he could
avail himself of probation since the law as it stood at that time provided that an accused convicted of a
crime may apply for probation even if he had appealed the conviction. We do not share his view. The
case he cited is a Court of Appeals decision, and, hence, not a precedent. What is more, it is inapplicable
because there, the accused's conviction became final on October 14, 1985. Presidential Decree No. 1990
although enacted on October 5, 1985, was published in the Official Gazette on December 30, 1985, and,
hence, was not yet applicable at the time the accused was finally convicted. Regrettably, the Solicitor
General has cited a Court of Appeals decision that is inapplicable to this case because the facts were not
similar. We find it unnecessary to resolve the other issues that the petitioner has raised questioning the
constitutionality and wisdom of Presidential Decree No. 1990, amending the probation law.

PATERNO DE LOS SANTOS, JR. vs. COURT OF APPEAL

SG.R. No. 181306:
March 21, 2011

FACTS: Paterno de los Santos, Jr. was found guilty of the crime of intentional abortion, and then he filed
an application for probation. It was ruled that he is ineligible to apply for probation, considering the fact
that he had waived his right to avail the benefits of probation law when he appealed the judgment of
conviction by the trial court.

ISSUE: Whether the petitioner is entitled to the benefits of probation, considering that he had appealed
his conviction, contrary to the provision of Section 4, P.D. 968, as amended by P.D. 1990.

HELD: 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 the time, effort and expenses to jettison an appeal. The pertinent provision of the Probation
Law, as amended, 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. It is undisputed that petitioner appealed from
the decision of the trial court. This fact alone merits the denial of petitioner’s 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 his conviction, petitioner was clearly precluded from the benefits of
probation. Furthermore, it was clear that when petitioner filed his appeal before the appellate court,
what he was questioning was the merit of the decision convicting him and not the propriety of the
penalty imposed by the trial court for the purpose of correcting a wrong penalty — to reduce it
to within probational range. By perfecting his appeal, petitioner, therefore, ipso fact
relinquished the alternative remedy of availing of the Probation Law. The 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. 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. Considering that the prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies, and petitioner opted to appeal his conviction, he,
therefore, deemed to relinquish his right to the benefits of probation.
ANSELMO DE LEON CUYO vs. PEOPLE OF THE PHILIPPINE
NSG.R. No. 192164:
October 12, 2011

FACTS: On August 25, 2009, Branch 1 of the Municipal Trial Court in Cities (MTCC) in San Fernando City,
La Union, found the petitioner guilty beyond reasonable doubt of the offense of perjury under Article
183 of the Revised Penal Code and sentenced him to imprisonment of four (4) months and one (1) day
to one (1) year. He was likewise ordered to pay private complainant Alejo Cuyo the amount of P10,000
for attorney’s fees and litigation expenses. Petitioner was not present during the promulgation of the
judgment and was represented by his counsel instead. His motion for reconsideration was denied on
October 23, 2009. He subsequently filed a Motion for Probation on November, 5,2009 but was denied
on the ground that it had been filed beyond the reglementary period of fifteen days as provided in Sec. 4
of P.D. 968.

ISSUE: Whether or not the petitioner is entitled to the benefits of probation.

HELD: This court held that the RTC that the Motion for Probation was filed out of time. Sec. 6 of Rule
120 of the Rules of Court provides Promulgation of judgment - The judgment is promulgated by reading
it in the presence of the accused and any judge of the Court in which it was rendered. However, if the
conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or
representative. When the judge is absent or outside the province or city, the judgment may be
promulgated by the clerk of court. In case the accused fails to appear at the scheduled date of
promulgation of judgment despite notice, the promulgation shall be made by recording the judgment
in the criminal docket and serving him a copy thereof at his last known address or through his counsel. If
the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he
shall lose the remedies available in these Rules against the judgment and the court shall order his arrest.

Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a
motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the
scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed
to avail of said remedies within fifteen (15) days from notice. (Emphasis supplied.)

Petitioner was charged with and found guilty of perjury. He was sentenced to suffer imprisonment of 4
months and 1 day to1 year, a period which is considered as a correctional penalty. Under Article 9 of the
Revised Penal Code, light felonies are those infractions of law for the commission of which the penalty
of arresto menor (one to thirty days of imprisonment) or a fine not exceeding two hundred pesos
(P200), or both are imposable. Thus, perjury is not a light felony or offense contemplated by Rule120,
Sec. 6.

It was therefore mandatory for the petitioner to be present at the promulgation of the judgment. To
recall, despite notice, the petitioner was absent when the MTCC promulgated its judgment on 25 August
2009. Pursuant to Rule 120, Sec. 6, it is only when the accused is convicted of a light offense that a
promulgation may be pronounced in the presence of his counsel or representative. In case the accused
failed to appear on the scheduled date of promulgation despite, and the failure to appear was without
justifiable cause, the accused shall lose all the remedies available in the Rules against the judgment.
ALEJANDRA PABLO vs. HON. SILVERIO Q. CASTILLO
G.R. No. 12510:
August 3, 2000

FACTS: Alejandra Pablo was convicted of a violation of Batas Pambansa Bilang 22. She applied for
probation and was later denied.

ISSUE: Whether or not he should be denied probation on the grounds of disqualification from probation
under Section 9 of P.D. 968.

HELD: The Court ruled that under Section 9 of the Probation Law, P.D. 968, the following offenders
cannot avail of the benefits of probation:

a. Those sentenced to serve a maximum term of imprisonment of more than six years;
b. Those convicted of subversion or any crime against the national security or the public order;
c. Those 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 fine of not less than two
hundred pesos;
d. Those who have been once on probation under the provisions of this decree; and those who
are already serving sentence at the time the substantive provisions of this decree became
applicable pursuant to section 33 hereof. The National Probation Office denied petitioner's
application for probation under Section 9 paragraph (c) P.D. 968 because a prior conviction
was entered against the petitioner on June 21, 1995, in Criminal Case No. 94-0199, penalizing
her with a fine of P4,648.00; thereby placing her within the ambit of disqualification from
probation under Section 9 paragraph (c) of P.D. 968.

It is a basic rule of statutory construction that if a statute is clear, plain, and free from ambiguity, it must
be given its literal meaning and applied without any interpretation. Not only that; in the matter of
interpretation of laws on probation, the Court has pronounced that "the policy of liberality of probation
statutes cannot prevail against the categorical provisions of the law. "Section 9 paragraph (c) is in clear
and plain language, to the effect that a person who was previously convicted by final judgment of an
offense punishable by imprisonment of not less than one month and one day and/or a fine of not less
than two hundred pesos, is disqualified from applying for probation. This provision of law is definitive
and unqualified. There is nothing in Section 9, paragraph (c) that qualifies "previous conviction" as
referring to a conviction for a crime that is entirely different from that for which the offender is applying
for probation or a crime that arose out of a single act or transaction as petitioner would have the court
to understand. It is well-settled that the probation law is not a penal statute; and therefore, the principle
of liberal interpretation is inapplicable. And when the meaning is discernible from the language of the
statute, there is no room for construction or interpretation.