GR No 182748 (ARNEL COLINARES v.

 PEOPLE OF THE PHILIPPINES).

EN BANC
Agenda of December 13, 2011
Item No. 77
 
Promulgated:
 
December 13, 2011
x--------------------------------------------------x
 
 
DISSENTING and CONCURRING OPINION
 
 
PERALTA, J.:
 
I concur with the disposition of the majority as to the conviction of the
accused.
 
However, as to the question relating to the application of the Probation Law
in this case, I respectfully dissent to the majority opinion.
Probation is not a right granted to a convicted offender. Probation is a
special privilege granted by the State to a penitent qualified offender, [1] who does
not possess the disqualifications under Section 9 of Presidential Decree (P.D.) No.
968,[2] otherwise known as the Probation Law of 1976. Likewise, the Probation
Law is not a penal law for it to be liberally construed to favor the accused.[3]
 
In the American law paradigm, probation is considered as an act of
clemency and grace, not a matter of right.[4] It is a privilege granted by the State,
not a right to which a criminal defendant is entitled.[5] In the recent case of City of
Aberdeen v. Regan,[6] 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.[7]
 
  
In this jurisdiction, the wisdom behind the enactment of our own Probation
Law, as outlined in the said law, reads:
 
(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.[8]
 
 
Originally, P.D. No. 968[9] allowed the filing of an application for probation
even if an appeal had been perfected by the convicted offender under Section 4,
thus:
 
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 waiver of the right to appeal, or the automatic withdrawal of a pending
appeal.
 
An order granting or denying probation shall not be appealable.[10]
 
 
Thereafter, 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. 1257.[11]
However, with the subsequent amendment of Section 4 of P.D. No. 968 by
P.D. No. 1990,[12] the application for probation is no longer allowed if the accused
has perfected an appeal from the judgment of conviction. 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 an 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.[13]
 
 
The reason for the disallowance 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;
 
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.[14]
 
 
In Sable v. People,[15] the 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. [16] 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.[17]
 
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.[18]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 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[19] treats appeal and probation as mutually exclusive remedies
because the law is unmistakable about it.[20]
 
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:
 
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. Thus, the accused should be allowed to
file an appeal under the aforestated 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.
 
What Section 4 of the Probation Law prohibits is an appeal from
the judgment of conviction, 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, 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.[21]
 
 
 An appeal from the judgment of conviction involves a review of the merits
of the case and the determination of whether or not 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 question the judgment of
conviction, but to question only the propriety of the sentence, particularly the
penalty imposed, as the accused intends to apply for probation. If the appellate
court finds it proper to modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, the accused should be allowed to
apply for probation after the case is remanded to the trial court for execution.
 
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 aforestated 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 aforestated 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:
 
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.
 
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. [22] Thus, the remedy is
the amendment of Section 4 of P.D. No. 968, and not adaptation through judicial
interpretation.
 
 
 
 
DIOSDADO M. PERALTA
Associate Justice
 
 
 
 

[1]
 Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625.
[2]
 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.
[3]
 Pablo v. Castillo, G.R. No. 125108, August 3, 2000, 337 SCRA 176, 181; Llamado v. Court of Appeals, G.R.
No.84850, June 29, 1989, 174 SCRA 566, 577.
[4]
 People v. Anderson, 50 Cal. 4th 19, 235 P.3d 11 (2010).
[5]
 Dean v. State, 57 So.3d 169 (2010)
[6]
 170 Wash. 2d 103, 239 P.3d 1102 (2010).
[7]
 Emphasis supplied.
[8]
 P.D. No. 968, Section 2.
[9]
 Establishing a Probation System, Appropriating Funds Therefor and Other Purposes, July 24, 1976.
[10]
 Emphases supplied.
[11]
 Amending Certain Sections of Presidential Decree Numbered Nine Hundred and Sixty-Eight, Otherwise Known
as The Probation Law of 1976, December 1, 1977.
SECTION 1. Section 4 of Presidential Decree No. 968, otherwise known as the Probation Law of 1976, is
hereby amended 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 supplied.)
[12]
 Amending Presidential Decree No. 968, Otherwise Known as The Probation Law of 1976, October 5, 1985.
[13]
 Emphasis supplied.
[14]
 Italics supplied.
[15]
 Supra note 1.
[16]
 Id. at 627.
[17]
 Id.
[18]
 Id.
[19]
 Sable v. People, supra note 1; Francisco v. Court of Appeals, G.R. No. 108747, April 6, 1995, 243 SCRA
384; Llamado v. Court of Appeals, G.R. No. 84850, June 29, 1989, 174 SCA 566.
[20]
 Sable v. People, supra note 1, at 628.
[21]
 Emphasis and underscoring supplied.
[22]
 Pablo v. Castillo, supra note 3, at 181.