Legal Feasibility of Probation After Appeal Under Philippine Laws

Probation is a remedy which offenders must avail of at the first opportunity. As presently worded, the Probation Law requires that the application for probation must be filed within the period for perfecting an appeal. Thus, the filing of an appeal and an application for probation are mutually exclusive remedies, such that recourse to one necessarily bars resort to the other – as each will operate as an automatic waiver of the other.

Despite what appears to be the clear and categorical wording of Section 4 of the Probation Law that “no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction,” the law itself is not at all that encompassing, plain and unambiguous such that there would be no further room for construction or interpretation.

On the contrary, the provisions of the Probation Law do not address a situation wherein resort to probation is not obtainable at the time of the conviction by the trial court in view of the sentence imposed, thereby making appeal the only remedy available to the accused.

Thus, a question arises when an accused appeals a judgment of conviction by the trial court that carries a penalty of more than six years imprisonment (which by express language of the law is beyond probationary limits) and the appellate court either affirms the decision of the lower court but reduces the penalty to less than six years or finds the accused guilty of a lower offense which provides for a term of imprisonment below the statutory limit. Would the offender then be eligible to apply for probation?

The Court of Appeals in People of the Philippines v. Araceli Valenzuela held that the offender whose penalty has been reduced on appeal to within probationable limits can apply for probation in the court a quo after the remand of the records of the case. In the above-entitled case, accused-appellant Araceli Valenzuela was convicted by the Regional Trial Court of the crime of estafa and was sentenced to an indeterminate penalty of 1 year, 8 months and 20 days to 6 years, 8 months and 21 days of imprisonment.

On appeal, the Court of Appeals modified the judgment and reduced the penalty to 1 year, 12 months and 21 days to 5 years, 5 months and 11 days of imprisonment. Subsequently, the accused filed with the Court of Appeals a motion for leave to file application for probation alleging that with the lowering of the penalty imposed on her to a penalty that is probationable, she should be afforded the opportunity to avail of the benefits of the Probation Law. In its comment, the Office of the Solicitor General interposed no objection to the application and submitted the following rationication:

“The vital question is whether appellant can now apply for probation considering the provision in the law that an accused who appeals his conviction waives his right to probation. The rationale behind the disqualification of a criminal offender who takes an appeal from applying for probation is that by appealing he shows his impenitence for the wrong he committed. This reason does not apply to appellant. When she was convicted by the trial court, she filed a motion for reconsideration questioning the penalty imposed, obviously with an eye to probation.

When her motion was denied, she appealed to this Honorable Court again questioning the penalty again (sic) for the same purpose. Under the circumstances it can not be said that appellant was impenitent. Had the penalty imposed by the trial court been correct, appellant would probably have accepted his conviction and sentence, and applied for probation. “A parallel case is Santos To v. Pano, 120 SCRA 8, where the Supreme Court declared: “’The penalty imposed by respondent court placed petitioner beyond the pale of the Probation Law.

How can he be said to be a non-penitent offender, as the law would judge one to be so, just because he appealed, as he could not have them (sic) applied for probation even if he wanted to? Who knows but that if the penalty imposed by the trial court is that imposed by the Court of Appeals petitioner would have applied for probation forthwith? ’ “The Supreme Court went on to declare that petitioner therein may not be disqualified from being entitled to the benefits of probation, not being included in the enumeration of disqualified offenders provided by law based on the decision of the Court of Appeals.

“The modification of the penalty imposed on appellant brought him outside the sphere of the disqualification provided by law. ” (as originally emphasized) In resolving the motion for leave to apply for probation, the Court of Appeals ruled: “We agree with the above observations of the Office of the Solicitor General. And we would like to add that the reasons of PD 1990 for amending PD 968 by disqualifying a defendant who has perfected an appeal from the judgment of conviction against him from applying for probation are:

“’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. ’

“If, however, the appellate court finds merit in the appeal of the defendant and, although not acquitting him, substantially modifies the judgment of the trial court, as in this case, the reasons for PD 1990 no longer hold, and the appellant should then be allowed to apply for probation if the penalty imposed on him by the appellate court is probationable, as in this case.

“We believe, though, that appellant’s application for probation should be filed with the court a quo, as all the proceedings under PD 968, the Probation Law of 1976, should be held in the trial court, not in the appellate court. “WHEREFORE, appellant Araceli Valenzuela is allowed to apply for probation with the court a quo after the remand of the original records of this case to that court. ” (emphasis ours) Significantly, the Revised Internal Rules of the Court of Appeals provide in Rule 11 thereof: “Section 1. Entry of Judgment. – Unless a motion for reconsideration is filed or an appeal is taken to the Supreme Court, judgments and final resolutions of the Court of Appeals shall be entered upon the expiration of fifteen (15) days after notice to the parties. “a.

In criminal cases, when the accused-appellant is acquitted, unless the state or any of the parties may still appeal, files an application for probation, or withdraws his appeal, entry of judgment shall be made immediately. “x x x . ” (emphasis ours) Thus, said Rules recognize that probation remains an available legal remedy even after appeal in cases where the appellate court modifies the judgment of the trial court and imposes upon the accused-appellant a penalty that falls within the six-year limit set by the Probation Law. The Supreme Court, on the other hand, in People of the Philippines v. Antonio C. Evangelista declared: “Until its amendment by P. D. No. 1990 in 1986, it was possible under P. D. No.

986, otherwise known as the Probation Law, for the accused to take his chances on appeal by allowing probation to be granted even after an accused had appealed his sentence and failed to obtain an acquittal, just so long as he had not yet started to serve the sentence. Accordingly, in Santos To v. Pano, it was held that the fact that the accused had appealed did not bar him from applying for probation especially because it was as a result of the appeal that his sentence was reduced and made the probationable limit.

“The law was, however, amended by P. D. No. 1990 which took effect on January 15, 1986 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 probation only if the accused fails in his bid. x x x. ” In the earlier case of Pablo Francisco v. Court of Appeals and the Honorable Maximo C.

Contreras , a sharply-divided Supreme Court in the ponencia of Mr. Justice Bellosillo 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 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. ” And in what appears to be a categorical and definitive rejection of any possibility for an offender being placed under the benefits of the Probation Law after judgment on appeal, the Supreme Court declared: “Petitioner is no longer eligible for probation. “First. Probation is a mere privilege, not a right.

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. 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.

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 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 appeal is 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. x x x. ” “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 negative clause, “no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. “

The Francisco doctrine obviously rests on a very strict and literal application of Section 4 of the Probation Law. Consequently, it would appear at first glance that the ruling would be applicable to and under all circumstances – including the situation where probation was not available at the onset and the only remedy obtainable to the accused was an appeal. However, a more serious appraisal of the Francisco ruling would readily yield the distinct possibility that the Supreme Court might have based its decision on other facts and circumstances peculiar to the case, which when singly or collectively taken would militate against the allowance of probation. In fine, the Court dealt with and resolved the case through four central issues.

The first issue having been earlier quoted, the other three issues considered by the Court to be determinative of the controversy are reproduced as follows: “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. x x x. “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. x x x. “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. “Fourth. The application for probation was filed way beyond the period allowed by law.

This is vital 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” of the RTC. This is a significant fact which militates against the instant petition. x x x. “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. ”

Equally significant to note and quote is the Court’s dispositive declaration: “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. ”

Despite the exhaustiveness of the discussion in the majority opinion, several questions still hang in the air: What if the penalties involved in the case were originally outside probationable limits? What if the application was filed within the reglamentary period to file an appeal? Would the Court’s position be any different?

It is submitted that it would not be entirely impossible that the Court’s stance would have been drastically altered. Absent the factual circumstances caused by the petitioner’s own acts or mis/appreciation of the law, it can be surmised that the decision of the Court may have been one allowing the application for probation, thus giving life to the beneficent purposes of the Probation Law. The dissenting opinion of Mr. Justice Mendoza bears reading and may provide better understanding of the issues involved:

“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: x x x. “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. x x x. ” “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 be 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. “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. ” On the other hand, Mr. Justice Vitug wrote a separate opinion: “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 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 N. 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 world 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. ” COMMENTS ON THE “FRANCISCO” RULING I.

As originally decreed, the Probation Law did not prohibit the application for probation even after an appeal had been taken by the accused; nor did it foreclose an application for probation after the appellate court had rendered judgment. In 1986, however, PD 1990 was enacted primarily to prevent an offender from making use of probation as a “last resort or alternative,” in case his conviction is affirmed by the appellate court. For an accused, despite the fact that he may be eligible for probation, may be tempted to exhaust all remedies of appeal in order to obtain an acquittal before he applies for probation – knowing fully well that he can do so anytime. The reason for the change in policy is plainly stated in the preambular clauses of PD 1990:

“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. ” A careful reading of the above unmistakably and clearly indicates that the intent of the amendatory decree was to prevent offenders who are otherwise already eligible to apply for probation in taking their chances on appeal, and failing to do so, would ultimately apply for probation.

There is 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 where he becomes eligible for probation only because on appeal his sentence is reduced.

The purpose of the amendment is simply to prevent speculation or opportunism on the part of an accused who, although eligible for probation, does not apply for probation, doing so only after failing in his appeal. Thus, PD 1990 was never intended to deny to an accused the remedy of appealing a judgment of conviction not falling within the coverage of the probation law and in subsequently applying for probation should such appeal result in the modification of his conviction to an offense or sentence not exceeding six years. It is not entirely illogical for an accused not initially entitled to probation to appeal his conviction since it is the only remedy available to him at that particular time.

And should the offender subsequently apply for probation after he becomes qualified or entitled to do so under the modified judgment, he then would have availed of the privilege at the first opportunity, as clearly required by law. Thus, while there can be no dispute or controversy that an appeal and application for probation are mutually exclusive remedies such that an availment of one would result in the automatic waiver of the other, this restrictive rule MUST, by reason of law and logic, not apply when probation is NOT available to the offender at the time of conviction. For how can a person waive a right or privilege not yet in existence? II.

It is a well-settled principle in statutory construction that when the law is clear, the court must apply it. There is no room for interpretation or construction. This is the general rule.

But the court is not duty bound to apply the strict letter of the law when it will result in injustice. This is the exception. An ambiguity in a law may exist not only when there is a doubtful meaning to a word or group of words, but also when provisions of a statute are inconsistent with each other, or when a literal application of the words would lead to unreasonable, unjust or absurd consequences. In interpreting a statute, care should be taken that every part be given effect and construction that would render a provision inoperative should be avoided and inconsistent provisions be reconciled whenever possible as parts of a harmonious whole.

Thus, the court may consider the spirit and reason of a statute where a literal meaning would lead to absurdity, contradiction, injustice, or would defeat the clear purpose of the law makers. The spirit and intendment of the law must prevail over the letter thereof, especially where adherence to the letter would result in absurdity and injustice. To assert a position of strictness would be to create and apply a situation not contemplated by law, thereby effectively denying an offender the chance and opportunity to apply for probation. Thus, a literal adherence to Section 4 of the law would clearly prejudice offenders who desire to apply for probation once or as soon as the opportunity arises and run counter to the meaning and reasons behind the enactment of the law.

“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. ” III. It has been vigorously stressed by the Court in this case that p