EN BANC
Agenda of
Item No. 77
G.R. No. 182748 (ARNEL COLINARES v. People
of the
Promulgated:
December 13, 2011
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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,
[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
[5] Dean
v. State, 57 So.3d 169
(2010)
[6] 170
[7] Emphasis
supplied.
[8] P.D.
No. 968, Section 2.
[9] Establishing
a Probation System, Appropriating Funds Therefor and Other Purposes,
[10] Emphases
supplied.
[11] Amending
Certain Sections of Presidential Decree Numbered Nine Hundred and Sixty-Eight,
Otherwise Known as The Probation Law of 1976,
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,
[13] Emphasis supplied.
[14] Italics
supplied.
[15] Supra note 1.
[16]
[17]
[18]
[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.