MUSTAPHA DIMAKUTA MARUHOM vs. PEOPLE OF THE years and two (2) months of prision correccional, as maximum. SEC.
eccional, as maximum. SEC. 4. Grant of Probation. – Subject to the provisions of this
PHIILPPINES G.R. No. 206513
The Court is now faced with one of the predicaments I discussed in
my Dissenting and Concurring Opinion in Colinares v. People.1 The
question regarding the application of the Probation Law is again
inescapably intertwined with the present petition. Consequently, I
must reiterate my assertions and arguments in Colinares to the
case at bar.
In the present controversy, petitioner Mustapha Dimakuta y
Maruhom alias Boyet was indicted for Violation of Section 5
Paragraph (b), Article III of Republic Act (R.A.) No. 7610 or the
Special Protection of Children Against Abuse, Exploitation and
Discriminatory Act. The Information reads:
That on or about the 24th day of September 2005, in the City of Las
Piñas, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, with lewd designs, did then and
there willfully, unlawfully and feloniously commit a lascivious
conduct upon the person of one AAA, who was then a sixteen (16)
year old minor, by then and there embracing her, touching her
breast and private part against her will and without her consent
and the act complained of is prejudicial to the physical and
psychological development of the complainant.2
After trial, the RTC promulgated its Decision3 which convicted
petitioner of the crime charged and sentenced him to suffer an
indeterminate penalty of imprisonment ranging from ten (10)
years of prision mayor, as minimum, to seventeen (17) years, four
(4) months and one (1) day of reclusion temporal, as maximum,
with the accessory penalty of perpetual absolute disqualification.
In addition, he was directed to pay a fine of ₱20,000.00, civil
indemnity of ₱25,000.00, and moral damages of ₱25,000.00.4
Feeling aggrieved, petitioner elevated the case to the Court of
Appeals (CA) arguing, among other things, that even assuming he
committed the acts imputed, still there is no evidence showing that
the same were done without the victim’s consent or through force,
duress, intimidation or violence upon her. Surprisingly, when
asked to comment on the appeal, the Office of the Solicitor General
(OSG), relying heavily on People v. Abello,5 opined that petitioner
should have been convicted only of Acts of Lasciviousness under
Article 336 of the Revised Penal Code (RPC) in view of the
prosecution’s failure to establish that the lascivious acts were
attended by force or coercion because the victim was asleep at the
time the alleged acts were committed.
On June 28, 2012, the CA rendered a Decision6 adopting the
recommendation of the OSG. In modifying the RTC Decision,
petitioner was found guilty of Acts of Lasciviousness under Article
336 of the RPC and was sentenced to suffer the indeterminate
penalty of six (6) months of arresto mayor, as minimum, to four (4)
Likewise, he was ordered to pay ₱20,000.00 as civil indemnity and
₱30,000.00 as moral damages.
Petitioner received a copy of CA Decision on July 6, 2012. 7 Instead
of further appealing the case, he filed on July 23, 2012 before the
CA a manifestation with motion to allow him to apply for probation
upon remand of the case to the RTC.8 Petitioner invoked the case
of Colinares v. People9 which allowed petitioner therein to apply for
probation after his sentence was later reduced on appeal by the
Supreme Court.
The CA issued a Resolution on September 3, 2012 denying
petitioner’s manifestation with motion.10 It was ruled that
Colinares is inapplicable since petitioner therein raised as sole
issue the correctness of the penalty imposed and claimed that the
evidence presented warranted only a conviction for the lesser
offense. Instead, the appellate court viewed as appropriate the case
of Lagrosa v. People,11 wherein the application for probation was
denied because petitioners therein put in issue on appeal the
merits of their conviction and did not simply assail the propriety of
the penalties imposed.
Petitioner filed a motion for reconsideration,12 but it was denied in
a Resolution13 dated March 13, 2013; hence, this petition.
The petition should be denied.
At the outset, tracing the evolution of the present Probation Law is
warranted in order to better understand and apply the wisdom of
its framers to cases invoking its application.
In this jurisdiction, the concept of probation was introduced during
the American colonial period.14 For juvenile delinquents, Act No.
320315 was enacted on December 3, 1924. It was later amended by
Act Nos. 3309,16 3559,17 and 3725.18 As to offenders who are
eighteen years old and above, Act No. 422119 was passed by the
legislature and took effect on August 7, 1935. Said Act allowed
defendants who are convicted and sentenced by a Court of First
Instance or by the Supreme Court on appeal, except those who are
convicted of offenses enumerated in Section 8 thereof,20 to be
placed on probation upon application after the sentence has
become final and before its service has begun.21 However, We
declared in People v. Vera22 that Act No. 4221 is unconstitutional
and void as it constitutes an improper and unlawful delegation of
legislative authority to the provincial boards.
During the martial law period, then President Ferdinand E. Marcos
issued Presidential Decree (P.D.) No. 96823 on July 24, 1976.
Originally, P.D. No. 968 allowed the filing of an application for
probation at any time after the defendant had been convicted and
sentenced. Section 4 of which provides:
Decree, the court may, after it shall have convicted and
sentenced a defendant and upon application at any time of
said defendant, suspend the execution of said sentence and place
the defendant on probation for such period and upon such terms
and conditions as it may deem best.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be
filed with the trial court, with notice to the appellate court if an
appeal has been taken from the sentence of conviction. The filing
of the application shall be deemed a waiver of the right to appeal,
or the automatic withdrawal of a pending appeal. An order
granting or denying probation shall not be appealable. 24
Later, the filing of an application for probation pending appeal was
still allowed when Section 4 of P.D. No. 968 was amended by P.D.
No. 125725 on December 1, 1977 by providing that such application
may be made after the defendant had been convicted and
sentenced but before he begins to serve his sentence. Thus:
SEC. 4. Grant of Probation. – Subject to the provisions of this
Decree, the court may, after it shall have convicted and
sentenced a defendant but before he begins to serve his
sentence and upon his application, suspend the execution of
said sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best.
The prosecuting officer concerned shall be notified by the court of
the filing of the application for probation and he may submit his
comment on such application within ten days from receipt of the
notification.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of
insolvency. An application for probation shall be filed with the trial
court, with notice to the appellate court if an appeal has been taken
from the sentence of conviction. The filing of the application shall
be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal. In the latter case, however, if the
application is filed on or after the date of the judgment of the
appellate court, said application shall be acted upon by the trial
court on the basis of the judgment of the appellate court. An order
granting or denying probation shall not be appealable. 26
On October 5, 1985, Section 4 was subsequently amended by P.D.
No. 1990.27 Henceforth, the policy has been to allow convicted and
sentenced defendant to apply for probation within the 15-day
period for perfecting an appeal. As modified, Section 4 of the
Probation Law now reads:
SEC. 4. Grant of Probation. – Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
SPL CASES- PROBATION LAW
sentenced a defendant and upon application by said
defendant within the period for perfecting an appeal, suspend
the execution of the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem
best; Provided, that no application for probation shall be
entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be
filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable. 28
The reason for the disallowance may be inferred from the
preamble of P.D. No. 1990, thus:
WHEREAS, it has been the sad experience that persons who are
convicted of offenses and who may be entitled to probation still
appeal the judgment of conviction even up to the Supreme Court,
only to pursue their application for probation when their appeal is
eventually dismissed;
WHEREAS, the process of criminal investigation, prosecution,
conviction and appeal entails too much time and effort, not to
mention the huge expenses of litigation, on the part of the State;
WHEREAS, the time, effort and expenses of the Government in
investigating and prosecuting accused persons from the lower
courts up to the Supreme Court, are oftentimes rendered nugatory
when, after the appellate Court finally affirms the judgment of
conviction, the defendant applies for and is granted probation;
WHEREAS, probation was not intended as an escape hatch and
should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated;
WHEREAS, it becomes imperative to remedy the problems
abovementioned confronting our probation system[.]
Observing the developments in our Probation Law, the Court
settled in Llamado v. Court of Appeals:29
Examination of Section 4, after its amendment by P.D. No. 1257,
reveals that it had established a prolonged but definite period
during which an application for probation may be granted by the
trial court. That period was: "After [the trial court] shall have
convicted and sentenced a defendant but before he begins to serve
his sentence." Clearly, the cut-off time – commencement of service
of sentence – takes place not only after an appeal has been
taken from the sentence of conviction, but even after judgment has
been rendered by the appellate court and after judgment has become
final. Indeed, in this last situation, Section 4, as amended by P.D. No.
1257 provides that "the application [for probation] shall be acted
upon by the trial court on the basis of the judgment of the appellate
court"; for the appellate court might have increased or reduced the
original penalty imposed by the trial court. x x xx x x x
In sharp contrast with Section 4 as amended by PD No. 1257, in its
present form, Section 4 establishes a much narrower period during
which an application for probation may be filed with the trial court:
"after [the trial court] shall have convicted and sentenced a
defendant and – within the period for perfecting an appeal –." As if
to provide emphasis, a new proviso was appended to the first
paragraph of Section 4 that expressly prohibits the grant of an
application for probation "if the defendant has perfected an appeal
from the judgment of conviction." It is worthy of note too that
Section 4 in its present form has dropped the phrase which said
that the filing of an application for probation means "the
automatic withdrawal of a pending appeal." The deletion is quite
logical since an application for probation can no longer be filed
once an appeal is perfected; there can, therefore, be no pending
appeal that would have to be withdrawn. x x x x
We find ourselves unable to accept the eloquently stated
arguments of petitioner's counsel and the dissenting opinion. We
are unable to persuade ourselves that Section 4 as it now stands, in
authorizing the trial court to grant probation "upon application by
[the] defendant within the period for perfecting an appeal" and in
reiterating in the proviso that
"no application for probation shall be entertained or granted if the
defendant has perfected an appeal from the judgment of
conviction."
did not really mean to refer to the fifteen-day period established,
as indicated above, by B.P. Blg. 129, the Interim Rules and
Guidelines Implementing B.P. Blg. 129 and the 1985 Rules on
Criminal Procedure, but rather to some vague and undefined time,
i.e., "the earliest opportunity" to withdraw the defendant's appeal.
The whereas clauses invoked by petitioner did not, of course, refer
to the fifteen-day period. There was absolutely no reason why they
should have so referred to that period for the operative words of
Section 4 already do refer, in our view, to such fifteen-day
period. Whereas clauses do not form part of a statute, strictly
speaking; they are not part of the operative language of the statute.
Nonetheless, whereas clauses may be helpful to the extent they
articulate the general purpose or reason underlying a new
enactment, in the present case, an enactment which drastically but
clearly changed the substantive content of Section 4 existing before
the promulgation of P.D. No. 1990. Whereas clauses, however,
cannot control the specific terms of the statute; in the instant case,
the whereas clauses of P.D. No. 1990 do not purport to control or
modify the terms of Section 4 as amended. Upon the other hand,
the term "period for perfecting an appeal" used in Section 4 may be
seen to furnish specification for the loose language "first
opportunity" employed in the fourth whereas clause. "Perfection of
an appeal" is, of course, a term of art but it is a term of art widely
understood by lawyers and judges and Section 4 of the Probation
Law addresses itself essentially to judges and lawyers. "Perfecting
an appeal" has no sensible meaning apart from the meaning given
to those words in our procedural law and so the law-making
agency could only have intended to refer the law-making agency
could only have intended to refer to the meaning of those words in
the context of procedural law.30
In Sable v. People, et al.,31 this Court stated that Section 4 of the
Probation Law was amended precisely to put a stop to the practice
of appealing from judgments of conviction even if the sentence is
probationable, for the purpose of securing an acquittal and
applying for the probation only if the accused fails in his bid. 32 The
Probation Law "expressly requires that an accused must not have
appealed his conviction before he can avail himself of probation.
This outlaws the element of speculation on the part of the accused
– to wager on the result of his appeal – that when his conviction is
finally affirmed on appeal, the moment of truth well nigh at hand
and the service of his sentence inevitable, he now applies for
probation as an ‘escape hatch,’ thus rendering nugatory the
appellate court's affirmance of his conviction."33
Verily, Section 4 of the Probation Law provides that the application
for probation must be filed with the trial court within the 15-day
period for perfecting an appeal. The need to file it within such
period is intended to encourage offenders, who are willing to be
reformed and rehabilitated, to avail themselves of probation at the
first opportunity.34 If the application for probation is filed beyond
the 15-day period, then the judgment becomes final and executory
and the lower court can no longer act on the application for
probation. On the other hand, if a notice of appeal is perfected, the
trial court that rendered the judgment of conviction is divested of
any jurisdiction to act on the case, except the execution of the
judgment when it has become final and executory.
In view of the latest amendment to Section 4 of the Probation Law
that "no application for probation shall be entertained or granted if
the defendant has perfected an appeal from the judgment of
conviction," prevailing jurisprudence35 treats appeal and probation
as mutually exclusive remedies because the law is unmistakable
about it.36 Indeed, the law is very clear and a contrary
interpretation would counter its envisioned mandate. Courts have
no authority to invoke "liberal interpretation" or "the spirit of the
law" where the words of the statute themselves, and as illuminated
by the history of that statute, leave no room for doubt or
interpretation.37 To be sure, the remedy of convicted felons who
want to avail of the benefits of probation even after the remedy of
an appeal is to go to the Congress and ask for the amendment of the
law. To surmise a converse construal of the provision would be
SPL CASES- PROBATION LAW
dangerously encroaching on the power of the legislature to enact
laws and is tantamount to judicial legislation.
With due respect, however, to the ponente and the majority
opinion in Colinares,38 the application of the Probation Law in the
said case deserves a second hard look so as to correct the mistake
in the application of the law in that particular case and in similar
cases which will be filed before the courts and inevitably elevated
to Us like this petition.
To refresh, Colinares concluded that since the trial court imposed
a penalty beyond what is allowed by the Probation Law, albeit
erroneously, the accused was deprived of his choice to apply for
probation and instead was compelled to appeal the case. The
reprehensible practice intended to be avoided by the law was,
therefore, not present when he appealed the trial court’s decision.
Taking into account that the accused argued in his appeal that the
evidence presented against him warranted his conviction only for
attempted, not frustrated, homicide, the majority of the Court
opined that the accused had purposely sought to bring down the
impossible penalty in order to allow him to apply for probation.
It was obvious then, as it is now, that the accused
in Colinares should not have been allowed the benefit of probation.
As I have previously stated and insisted upon, probation is not a
right granted to a convicted offender; it is a special privilege
granted by the State to a penitent qualified offender, 39 who does
not possess the disqualifications under Section 9 of P.D. No. 968, as
amended.40 Likewise, the Probation Law is not a penal law for it to
be liberally construed to favor the accused.41
In the American law paradigm, probation is considered as an act of
clemency and grace, not a matter of right.42 It is a privilege granted
by the State, not a right to which a criminal defendant is
entitled.43 In City of Aberdeen v. Regan,44 it was pronounced that:
The granting of a deferred sentence and probation, following a plea
or verdict of guilty, is a rehabilitative measure and, as such, is not a
matter of right but is a matter of grace, privilege, or clemency
granted to the deserving.
As such, even in the American criminal justice model, probation
should be granted only to the deserving or, in our system, only to
qualified "penitent offenders" who are willing to be reformed and
rehabilitated. Corollarily, in this jurisdiction, the wisdom behind
the Probation Law is outlined in its stated purposes, to wit:
(a) promote the correction and rehabilitation of an offender by
providing him with individualized treatment;
(b) provide an opportunity for the reformation of a penitent
offender which might be less probable if he were to serve a prison
sentence; and
(c) prevent the commission of offenses.45
As I have previously indicated in Colinares, if this Court will adopt
as jurisprudential doctrine the opinion that an accused may still be
allowed to apply for probation even if he has filed a notice of
appeal, it must be categorically stated that such appeal must be
limited to the following grounds:
1. When the appeal is merely intended for the correction of the
penalty imposed by the lower court, which when corrected would
entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for
which the accused was convicted and that the accused should only
be liable to the lesser offense which is necessarily included in the
crime for which he was originally convicted and the proper penalty
imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the
crime committed by the accused is more than six years; hence, the
sentence disqualifies the accused from applying for probation. The
accused should then be allowed to file an appeal under the afore-
stated grounds to seek a review of the crime and/or penalty
imposed by the trial court. If, on appeal, the appellate court finds it
proper to modify the crime and/or the penalty imposed, and the
penalty finally imposed is within the probationable period, the
accused should still be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds
enumerated above, the accused should first file a motion for
reconsideration of the decision of the trial court anchored on the
above-stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for reconsideration
will give the trial court an opportunity to review and rectify any
errors in its judgment, while the manifestation of the accused will
immediately show that he is agreeable to the judgment of
conviction and does not intend to appeal from it, but he only seeks
a review of the crime and/or penalty imposed, so that in the event
that the penalty will be modified within the probationable limit, he
will immediately apply for probation. Without such motion for
reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
(1) that an earlier motion for reconsideration was filed but was
denied by the trial court;
(2) that the appeal is only for reviewing the penalty imposed by the
lower court or the conviction should only be for a lesser crime
necessarily included in the crime charged in the information; and
(3) that the accused-appellant is not seeking acquittal of the
conviction.
To note, what Section 4 of the Probation Law prohibits is an appeal
from the judgment of conviction, which involves a review of the
merits of the case and the determination of whether the accused is
entitled to acquittal. However, under the recommended grounds
for appeal which were enumerated earlier, the purpose of the
appeal is not to assail the judgment of conviction but to question
only the propriety of the sentence, particularly the penalty
imposed or the crime for which the accused was convicted, as the
accused intends to apply for probation upon correction of the
penalty or conviction for the lesser offense. If the CA finds it proper
to modify the sentence, and the penalty finally imposed by the
appellate court is within the probationable period, or the crime for
which the accused is eventually convicted imposes a probationable
penalty, application for probation after the case is remanded to the
trial court for execution should be allowed.
It is believed that the recommended grounds for appeal do not
contravene Section 4 of the Probation Law, which expressly
prohibits only an appeal from the judgment of conviction. In such
instances, the ultimate reason of the accused for filing the appeal
based on the afore-stated grounds is to determine whether he may
avail of probation based on the review by the appellate court of the
crime and/or penalty imposed by the trial court. Allowing the
afore-stated grounds for appeal would give an accused the
opportunity to apply for probation if his ground for appeal is found
to be meritorious by the appellate court, thus, serving the purpose
of the Probation Law to promote the reformation of a penitent
offender outside of prison.
On the other hand, probation should not be granted to the accused
in the following instances:
1. When the accused is convicted by the trial court of a crime where
the penalty imposed is within the probationable period or a fine, and
the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits
of his conviction in issue, even if there is an alternative prayer for
the correction of the penalty imposed by the trial court or for a
conviction to a lesser crime, which is necessarily included in the
crime in which he was convicted where the penalty is within the
probationable period.
Both instances violate the spirit and letter of the law, as Section 4
of the Probation Law prohibits granting an application for
SPL CASES- PROBATION LAW
probation if an appeal from the sentence of conviction has been
perfected by the accused.
In this case, petitioner appealed the trial court’s judgment of
conviction before the CA alleging that it was error on the part of the
RTC to have found him guilty of violating Section 5(b), Article III of
R.A. No. 7610. He argued that the RTC should not have given much
faith and credence to the testimony of the victim because it was
tainted with inconsistencies. Moreover, he went on to assert that
even assuming he committed the acts imputed on him, still there
was no evidence showing that the lascivious acts were committed
without consent or through force, duress, intimidation or violence
because the victim at that time was in deep slumber. It is apparent
that petitioner anchored his appeal on a claim of innocence and/or
lack of sufficient evidence to support his conviction of the offense
charged, which is clearly inconsistent with the tenor of the
Probation Law that only qualified penitent offender are allowed to
apply for probation. The CA, therefore, did not err in applying the
similar case of Lagrosa v. People46 wherein the protestations of
petitioners therein did not simply assail the propriety of the
penalties imposed but meant a profession of guiltlessness, if not
complete innocence.
To be sure, if petitioner intended in the first instance to be entitled
to apply for probation he should have admitted his guilt and
buttressed his appeal on a claim that the penalty imposed by the
RTC was erroneous or that he is only guilty of a lesser offense
necessarily included in the crime for which he was originally
convicted. Unfortunately for him, he already perfected his appeal
and it is late in the day to avail the benefits of probation despite the
imposition of the CA of a probationable penalty.
As regards the CA Decision convicting petitioner of the crime of
Acts of Lasciviousness under Article 336 of the RPC, such
conclusion clearly contravenes the law and existing jurisprudence.
Petitioner was charged and convicted by the trial court with
violation of Section 5(b), Article III of R.A. No. 7610 based on the
complaint of a sixteen (16)-year-old girl for allegedly molesting her
by touching her breast and vagina while she was sleeping. The
provision reads:
SEC. 5. Child Prostitution and Other Sexual Abuse. – Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subject to other
sexual abuse; Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article
335, paragraph 3, for rape and Article 336 of Act No. 3815, as
amended, the Revised Penal Code, for rape or lascivious conduct,
as the case may be: Provided, That the penalty for lascivious
conduct when the victim is under twelve (12) years of age shall be
reclusion temporal I its medium period; x x x(Emphasis supplied)
The elements of sexual abuse are as follows:
1. The accused commits the act of sexual intercourse or lascivious
conduct.
2. The said act is performed with a child exploited in prostitution
or subjected to sexual abuse.
3. The child, whether male or female, is below 18 years of age.47
Under Section 5, Article III of R.A. No. 7610, a child is deemed
subjected to other sexual abuse when he or she indulges in
lascivious conduct under the coercion or influence of any
adult.48 This statutory provision must be distinguished from Acts
of Lasciviousness under Articles 336 and 339 of the RPC. As
defined in Article 336 of the RPC, Acts of Lasciviousness has the
following elements:
(1) That the offender commits any act of lasciviousness or
lewdness;
(2) That it is done under any of the following circumstances:
a. By using force or intimidation; or
b. When the offended party is deprived or reason or otherwise
unconscious; or
c. When the offended party is under 12 years of age; and
That the offended party is another person of either sex.49
Article 339 of the RPC likewise punishes acts of lasciviousness
committed with the consent of the offended party done by the
same persons and under the same circumstances mentioned in
Articles 337 and 338 of the RPC, to wit:
1. if committed against a virgin over twelve years and under
eighteen years of age by any person in public authority, priest,
home-servant, domestic, guardian, teacher, or any person who, in
any capacity, shall be entrusted with the education or custody of
the woman; or
2. if committed by means of deceit against a woman who is single
or a widow of good reputation, over twelve but under eighteen
years of age.
Therefore, if the victim of the lascivious acts or conduct is over 12
years of age and under eighteen (18) years of age shall be liable for:
1. Other acts of lasciviousness under Art. 339 of the RPC, where the
victim is a virgin and consents to the lascivious acts through
abuse of confidence or when the victim is single or a widow of
good reputation and consents to the lascivious acts through
deceit, or;
2. Acts of lasciviousness is not covered by lascivious conduct as
defined in R.A. No. 7610. In case the acts of lasciviousness is
covered by lascivious conduct under R.A. No. 7610 and it is done
through coercion or influence, which established absences or lack
of consent, the Art.336 of the RPC is no longer applicable
3. Section 5(b), Article III of R.A. No. 7610, where there was no
consent on the part of the victim to the lascivious conduct, which
was done through the employment of coercion or influence. The
offender may likewise be liable for sexual abuse under R.A. No.
7610 if the victim is at least eighteen (18) years and she is unable
to fully take care of herself or protect herself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
mental disability or condition.50
Article 226-A, paragraph 2 of the RPC, punishes inserting of the
penis into another person's mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another
person if the victim did not consent either it was done through
force, threat or intimidation; or when the victim is deprived of
reason or is otherwise unconscious; or by means of fraudulent
machination or grave abuse of authority as sexual assault as a form
of rape. However, in instances where the lascivious conduct is
covered by the definition under R.A. No 7610, where the penalty is
reclusion temporal medium, and the act is likewise covered by
sexual assault under Article 266-A, paragraph 2 of the RPC, which
is punishable by prision mayor, the offender should be liable for
violation of Section 5(b), Article III of R.A. No. 7610, where the law
provides for the higher penalty of reclusion temporal medium, if
the offended party is a child victim. But if the victim is at least
eighteen (18) years of age, the offender should be liable under Art.
266-A, par. 2 of the RPC and not R.A. No. 7610, unless the victim is
at least eighteen (18) years and she is unable to fully take care of
herself or protect herself from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or
condition, in which case, the offender may still be held liable for
sexual abuse under R.A. No. 7610.
SPL CASES- PROBATION LAW
There could be no other conclusion, a child is presumed by law to
be incapable of giving rational consent to any lascivious act, taking
into account the constitutionally enshrined State policy to promote
the physical, moral, spiritual, intellectual and social well-being of
the youth, as well as, in harmony with the foremost consideration
of the child’s best interests in all actions concerning him or
her.51 This is equally consistent with the with the declared policy
of the State to provide special protection to children from all
forms of abuse, neglect, cruelty, exploitation and discrimination,
and other conditions prejudicial to their development; provide
sanctions for their commission and carry out a program for
prevention and deterrence of and crisis intervention in situations
of child abuse, exploitation, and discrimination.52 Besides, if it was
the intention of the framers of the law to make child offenders
liable only of Article 266-A of the RPC, which provides for a lower
penalty than R.A. No. 7610, the law could have expressly made such
statements.
As correctly found by the trial court, all the elements of sexual
abuse under Section 5(b), Article III of R.A. No. 7610 are present in
the case at bar.
First, petitioner’s lewd advances of touching the breasts and vagina
of his hapless victim constitute lascivious conduct as defined in
Section 32, Article XIII of the Implementing Rules and Regulations
(IRR) of R.A. No. 7610:
[T]he intentional touching, either directly or through clothing, of
the genitalia, anus, groin, breast, inner thigh, or buttocks, or the
introduction of any object into the genitalia, anus or mouth, of any
person, whether of the same or opposite sex, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, bestiality, masturbation, lascivious exhibition
of the genitals or pubic area of a person.53
Second, petitioner clearly has moral ascendancy over the minor
victim not just because of his relative seniority but more
importantly due to the presumed presence of mutual trust and
confidence between them by virtue of an existing employment
relationship, AAA being a domestic helper in petitioner’s
household. Notably, a child is considered as sexually abused under
Section 5(b) of R.A. No. 7610 when he or she is subjected to
lascivious conduct under the coercion or influence of any adult.
Intimidation need not necessarily be irresistible. It is sufficient that
some compulsion equivalent to intimidation annuls or subdues the
free exercise of the will of the offended party.54 The law does not
require physical violence on the person of the victim; moral
coercion or ascendancy is sufficient.55 On this point, Caballo v.
People56 explicated:
As it is presently worded, Section 5, Article III of RA 7610 provides
that when a child indulges in sexual intercourse or any
lascivious conduct due to the coercion or influence of any
adult, the child is deemed to be a "child exploited in prostitution
and other sexual abuse." In this manner, the law is able to act as
an effective deterrent to quell all forms of abuse, neglect, cruelty,
exploitation and discrimination against children, prejudicial as
they are to their development.
In this relation, case law further clarifies that sexual intercourse or
lascivious conduct under the coercion or influence of any adult
exists when there is some form of compulsion equivalent to
intimidation which subdues the free exercise of the offended
party’s free will. Corollary thereto, Section 2(g) of the Rules on
Child Abuse Cases conveys that sexual abuse involves the
element of influence which manifests in a variety of forms. It
is defined as:
The employment, use, persuasion, inducement, enticement or
coercion of a child to engage in, or assist another person to engage
in, sexual intercourse or lascivious conduct or the molestation,
prostitution, or incest with children.
To note, the term "influence" means the "improper use of power or
trust in any way that deprives a person of free will and substitutes
another’s objective." Meanwhile, "coercion" is the "improper use of
x x x power to compel another to submit to the wishes of one who
wields it."57
Finally, the victim is 16 years of age at the time of the commission
of the offense. Under Section 3 (a) of R.A. No. 7610, "children"
refers to
"persons below eighteen (18) years of age or those over but unable
to fully take care of themselves or protect themselves from abuse,
neglect, cruelty, exploitation or discrimination because of a
physical or mental disability or condition."
The decision of the trial court finding the petitioner guilty of
Violation of Section 5(b), Article III R.A. No. 7610 should have been
upheld by the CA instead of erroneously adopting the
recommendation of the OSG, which inaccurately relied on People v.
Abello.58 In said case, the decisive factor for the acquittal of the
accused was not the absence of coercion or intimidation on the
offended party, who was then sleeping at the time the lascivious
act was committed, but the fact that the victim could not be
considered as a "child" under R.A. No. 7610. This Court held that
while the twenty-one year old woman has polio as a physical
disability that rendered her incapable of normal function, the
prosecution did not present any testimonial or documentary
evidence - any medical evaluation or finding from a qualified
physician, psychologist or psychiatrist - attesting that the physical
condition rendered her incapable of fully taking care of herself or
of protecting herself against sexual abuse.
Thus, it is clear that petitioner could not have been entitled to apply
for probation in the first place. Regrettably, since neither the
accused nor the OSG questioned the CA Decision, it has attained
finality and to correct the error at this stage is already barred by
the right of the accused against double jeopardy.
Based on the above disquisitions, the petitioner should be denied
the benefit of the Probation Law and that the Court should adopt
the recommendations above-stated in situations where an accused
files an appeal for the sole purpose of correcting the penalty
imposed to qualify him for probation or where he files an appeal
specifically claiming that he should be found guilty of a lesser
offense necessarily included with the crime originally filed with a
prescribed penalty which is probationable. SO ORDERED.
ARTEMIO VILLAREAL vs. PEOPLE OF THE PHILIPPINES G.R. No.
151258 December 1, 2014
We are asked to revisit our Decision in the case involving the death
of Leonardo "Lenny" Villa due to fraternity hazing. While there is
nothing new in the arguments raised by the parties in their
respective Motions for Clarification or Reconsideration, we find a
few remaining matters needing to be clarified and resobed. Sorne
oJ' these matters include the effect of our Decision on the finality of
the Court of Appeals judgments insofar as respondents Antonio
Mariano A!meda (Almeda), June] Anthony D. Arna (Arna), Renato
Bantug, Jr. (Bantug), and Vincent Tecson (Tecson) are concerned;
the question of who are eligible to seek probation; and the issue of
the validity of the probation proceedings and the concomitant
orders of a court that allegedly had no jurisdiction over the case.
Before the Court are the respective Motions for Reconsideration or
Clarification filed by petitioners People of the Philippines, through
the Office of the Solicitor General (OSG), and Gerarda H. Villa
(Villa); and by respondents Almeda, Ama, Bantug, and Tecson
(collectively, Tecson et al.) concerning the Decision of this Court
dated 1 February 2012.1 The Court modified the assailed
judgments2 of the Court of Appeals (CA) in CA-G.R. CR No. 15520
and found respondents Fidelito Dizon (Dizon), Almeda, Ama,
Bantug, and Tecson guilty beyond reasonable doubt of the crime of
reckless imprudence resulting in homicide. The modification had
the effect of lowering the criminal liability of Dizon from the crime
of homicide, while aggravating the verdict against Tecson et al.
from slight physical injuries. The CA Decision itself had modified
the Decision of the Caloocan City Regional Trial Court (RTC)
Branch 121 finding all of the accused therein guilty of the crime of
homicide.3
Also, we upheld another CA Decision4 in a separate but related case
docketed as CA-G.R. S.P. Nos. 89060 & 90153 and ruled that the CA
did not commit grave abuse of discretion when it dismissed the
criminal case against Manuel Escalona II (Escalona), Marcus Joel
Ramos (Ramos), Crisanto Saruca, Jr. (Saruca), and Anselmo
Adriano (Adriano) on the ground that their right to speedy trial
was violated. Reproduced below is the dispositive portion of our
Decision:5
SPL CASES- PROBATION LAW
WHEREFORE, the appealed Judgmentin G.R. No. 155101 finding
petitioner Fidelito Dizon guilty of homicide is hereby MODIFIED
and SET ASIDE IN PART. The appealed Judgment in G.R. No.
154954 – finding Antonio Mariano Almeda, Junel Anthony Ama,
Renato Bantug, Jr., and Vincent Tecson guilty of the crime of slight
physical injuries – is also MODIFIED and SET ASIDE IN PART.
Instead, Fidelito Dizon, Antonio Mariano Almeda, Junel Anthony
Ama, Renato Bantug, Jr., and Vincent Tecson are found GUILTY
beyond reasonable doubt of reckless imprudence resulting in
homicide defined and penalized under Article 365 in relation to
Article 249 of the Revised Penal Code. They are hereby sentenced
to suffer an indeterminate prison term of four (4) months and one
(1) day of arresto mayor, as minimum, to four (4) years and two
(2) months of prision correccional, as maximum. In addition,
accused are ORDERED jointly and severally to pay the heirs of
Lenny Villa civil indemnity ex delicto in the amount of 50,000, and
moral damages in the amount of 1,000,000, plus legal interest on
all damages awarded at the rate of 12% from the date of the finality
of this Decision until satisfaction. Costs de oficio.
The appealed Judgment in G.R. No. 154954, acquitting Victorino et
al., is hereby AFFIRMED. The appealed Judgments in G.R. Nos.
178057 & 178080, dismissing the criminal case filed against
Escalona, Ramos, Saruca, and Adriano, are likewise AFFIRMED.
Finally, pursuant to Article 89(1) of the Revised Penal Code, the
Petition in G.R. No. 151258 is hereby dismissed, and the criminal
case against Artemio Villareal deemed CLOSED and TERMINATED.
Let copies of this Decision be furnished to the Senate President and
the Speaker of the House of Representatives for possible
consideration of the amendment of the Anti-Hazing Law to include
the fact of intoxication and the presence of non-resident or alumni
fraternity members during hazing as aggravating circumstances
that would increase the applicable penalties. SO ORDERED.
To refresh our memories, we quote the factual antecedents
surrounding the present case:6
In February 1991, seven freshmen law students of the Ateneo de
Manila University School of Law signified their intention to join the
Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien"
Marquez III, Roberto Francis "Bert" Navera, Geronimo "Randy"
Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some
members of the Aquila Fraternity (Aquilans) at the lobby of the
Ateneo Law School. They all proceeded to Rufo’s Restaurant to
have dinner. Afterwards, they went to the house of Michael Musngi,
also an Aquilan, who briefed the neophytes on what to expect
during the initiation rites. The latter were informed that there
would be physical beatings, and that they could quit at any time.
Their initiation rites were scheduled to last for three days. After
their "briefing," they were brought to the Almeda Compound in
Caloocan City for the commencement of their initiation.
Even before the neophytes got off the van, they had already
received threats and insults from the Aquilans. As soon as the
neophytes alighted from the van and walked towards the pelota
court of the Almeda compound, some of the Aquilans delivered
physical blows to them. The neophytes were then subjected to
traditional forms of Aquilan "initiation rites." These rites included
the "Indian Run," which required the neophytes to run a gauntlet
of two parallel rows of Aquilans, each row delivering blows to the
neophytes; the "Bicol Express," which obliged the neophytes to sit
on the floor with their backs against the wall and their legs
outstretched while the Aquilans walked, jumped, or ran over their
legs; the "Rounds," in which the neophytes were held at the back of
their pants by the "auxiliaries" (the Aquilans charged with the duty
of lending assistance to neophytes during initiation rites), while
the latter were being hit with fist blows on their arms or withknee
blows on their thighs by two Aquilans; and the "Auxies’ Privilege
Round," in which the auxiliaries were given the opportunity to
inflict physical pain on the neophytes. During this time, the
neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day – 9 February 1991 – the
neophytes were made to present comic plays and to play rough
basketball. They were also required to memorize and recite the
Aquila Fraternity’s principles. Whenever they would give a wrong
answer, they would be hit on their arms or legs. Late in the
afternoon, the Aquilans revived the initiation rites proper and
proceeded to torment them physically and psychologically. The
neophytes were subjected to the same manner of hazing that they
endured on the first day of initiation. After a few hours, the
initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity members
Fidelito Dizon (Dizon) and Artemio Villareal (Villareal) demanded
that the rites be reopened. The head of initiation rites, Nelson
Victorino (Victorino), initially refused. Upon the insistence of
Dizon and Villareal, however, he reopened the initiation rites. The
fraternity members, including Dizon and Villareal, then subjected
the neophytes to "paddling" and to additional rounds of physical
pain. Lenny received several paddle blows, one of which was so
strong it sent him sprawling to the ground. The neophytes heard
him complaining of intense pain and difficulty in breathing. After
their last session of physical beatings, Lenny could no longer walk.
He had to be carried by the auxiliaries to the carport. Again, the
initiation for the day was officially ended, and the neophytes
started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by
Lenny’s shivering and incoherent mumblings.1avvphi1 Initially,
Villareal and Dizon dismissed these rumblings, as they thought he
was just overacting. When they realized, though, that Lenny was
really feeling cold, some of the Aquilans started helping him. They
removed his clothes and helped him through a sleeping bag to keep
him warm. When his condition worsened, the Aquilans rushed him
to the hospital. Lenny was pronounced dead on arrival.
Twenty-six of the accused Aquilans in Criminal Case No. C-
38340(91) were jointly tried. On the other hand, the trial against
the remaining nine accused in Criminal Case No. C-38340 was held
in abeyance due to certain matters that had to be resolved first.
On 8 November 1993, the trial court rendered judgment in
Criminal Case No. C-38340(91), holding the 26 accused guilty
beyond reasonable doubt of the crime of homicide, penalized with
reclusion temporal under Article 249 of the Revised Penal Code. A
few weeks after the trial court rendered its judgment, or on 29
November 1993, Criminal Case No. C-38340 against the remaining
nine accused commenced anew.
On 10 January 2002, the CA in (CA-G.R. No. 15520) set aside the
finding of conspiracy by the trial court in Criminal Case No. C-
38340(91) and modified the criminal liability of each of the
accused according to individual participation. Accused De Leon
had by then passed away, so the following Decision applied only to
the remaining 25 accused, viz:
1. Nineteen of the accused-appellants– Victorino, Sabban, Lledo,
Guerrero, Musngi, Perez, De Guzman, Santos, General, Flores, Lim,
Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez,
Abas, and Brigola (Victorino et al.) – were acquitted, as their
individual guilt was not established by proof beyond reasonable
doubt.
2. Four of the accused-appellants– Vincent Tecson, Junel Anthony
Ama, Antonio Mariano Almeda, and Renato Bantug, Jr. (Tecson et
al.) – were found guilty of the crime of slight physical injuries and
sentenced to 20 days of arresto menor. They were also ordered to
jointly pay the heirs of the victim the sum of ₱30,000 as indemnity.
3. Two of the accused-appellants– Fidelito Dizon and Artemio
Villareal– were found guilty beyond reasonable doubt of the crime
of homicide under Article 249 of the Revised Penal Code. Having
found no mitigating or aggravating circumstance, the CA sentenced
them to an indeterminate sentence of 10 years of prision mayor to
17 years of reclusion temporal. They were also ordered to
indemnify, jointly and severally, the heirs of Lenny Villa in the sum
of ₱50,000 and to pay the additional amount of ₱1,000,000 by way
of moral damages.
On 5 August 2002, the trial court in Criminal Case No. 38340
dismissed the charge against accused Concepcion on the ground of
violation of his right to speedy trial. Meanwhile, on different dates
between the years 2003 and 2005, the trial court denied the
respective Motions to Dismiss of accused Escalona, Ramos, Saruca,
SPL CASES- PROBATION LAW
and Adriano. On 25 October 2006, the CA in CA-G.R. SP Nos. 89060
& 90153 reversed the trial court’s Orders and dismissed the
criminal case against Escalona, Ramos, Saruca, and Adriano on the
basis of violation of their right to speedy trial.
From the aforementioned Decisions, the five (5) consolidated
Petitions were individually brought before this Court. (Citations
omitted)
Motion for Partial Reconsideration filed by Petitioner Gerarda H.
Villa
Petitioner Villa filed the present Motion for Partial
Reconsideration7 in connection with G.R. Nos. 178057 & 178080
(Villa v. Escalona) asserting that the CA committed grave abuse of
discretion when it dismissed the criminal case against Escalona,
Ramos, Saruca, and Adriano (collectively, Escalona et al.) in its
assailed Decision and Resolution.8 Villa reiterates her previous
arguments that the right to speedy trial of the accused was not
violated, since they had failed to assert that right within a
reasonable period of time. She stresses that, unlike their co-
accused Reynaldo Concepcion, respondents Escalona et al. did not
timely invoke their right to speedy trial during the time that the
original records and pieces of evidence were unavailable. She again
emphasizes that the prosecution cannot be faulted entirely for the
lapse of 12 years from the arraignment until the initial trial, as
there were a number of incidents attributable to the accused
themselves that caused the delay of the proceedings. She then
insists that we apply the balancing test in determining whether the
right to speedy trial of the accused was violated.
Motion for Reconsideration filed by the OSG
The OSG, in its Motion for Reconsideration9 of G.R. Nos. 155101
(Dizon v. People) and 154954 (People v. Court of Appeals), agrees
with the findings of this Court that accused Dizon and Tecson et al.
had neither the felonious intent to kill (animus interficendi) nor
the felonious intent to injure (animus iniuriandi) Lenny Villa. In
fact, it concedes that the mode in which the accused committed the
crime was through fault (culpa). However, it contends that the
penalty imposed should have been equivalent to that for deceit
(dolo) pursuant to Article 249 (Homicide) of the Revised Penal
Code. It argues that the nature and gravity of the imprudence or
negligence attributable to the accused was so gross that it
shattered the fine distinction between dolo and culpa by
considering the act as one committed with malicious intent. It
maintains that the accused conducted the initiation rites in such a
malevolent and merciless manner that it clearly endangered the
lives of the initiates and was thus equivalent to malice
aforethought.
With respect to the 19 other accused, or Victorino et al., the OSG
asserts that their acquittal may also be reversed despite the rule on
double jeopardy, as the CA also committed grave abuse of Findings on the Motion for Partial Reconsideration of
discretion in issuing its assailed Decision (CA-G.R. No. 15520). The Petitioner Gerarda H. Villa
OSG insists that Victorino et al. should have been similarly
convicted like their other co-accused Dizon, Almeda, Ama, Bantug,
As regards the first issue, we take note that the factual
and Tecson, since the former also participated in the hazing of
circumstances and legal assertions raised by petitioner Villa in her
Lenny Villa, and their actions contributed to his death.
Motion for Partial Reconsideration concerning G.R. Nos. 178057 &
178080 have already been thoroughly considered and passed upon
Motions for Clarification or Reconsideration of Tecson et al. in our deliberations, which led to our Decision dated 1 February
2012. We emphasize that in light of the finding of violation of the
right of Escalona et al. to speedy trial, the CA’s dismissal of the
Respondents Tecson et al.,10 filed their respective motions
criminal case against them amounted to an acquittal,15 and that any
pertaining to G.R. No. 154954 (People v. Court of Appeals). They
appeal or reconsideration thereof would result in a violation of
essentially seek a clarification as to the effect of our Decision
their right against double jeopardy.16 Though we have recognized
insofar as their criminal liability and service of sentence are
that the acquittal of the accused may be challenged where there has
concerned. According to respondents, they immediately applied
been a grave abuse of discretion,17 certiorari would lie if it is
for probation after the CA rendered its Decision (CAG.R. No. 15520)
convincingly established that the CA’s Decision dismissing the case
lowering their criminal liability from the crime of homicide, which
was attended by a whimsical or capricious exercise of judgment
carries a non-probationable sentence, to slight physical injuries,
equivalent to lack of jurisdiction. It must be shown that the assailed
which carries a probationable sentence. Tecson et al. contend that,
judgment constitutes "a patent and gross abuse of discretion
as a result, they have already been discharged from their criminal
amounting to an evasion of a positive duty or to a virtual refusal to
liability and the cases against them closed and terminated. This
perform a duty imposed by law or to act in contemplation of law;
outcome was supposedly by virtue of their Applications for
an exercise of power in an arbitrary and despotic manner by
Probation on various dates in January 200211 pursuant to
reason of passion and hostility; or a blatant abuse of authority to a
Presidential Decree No. 968, as amended, otherwise known as the
point so grave and so severe as to deprive the court of its very
Probation Law. They argue that Branch 130 of Caloocan City
power to dispense justice."18 Thus, grave abuse of discretion
Regional Trial Court (RTC) had already granted their respective
cannot be attributed to a court simply because it allegedly
Applications for Probation on 11 October 200212 and, upon their
misappreciated the facts and the evidence.19
completion of the terms and conditions thereof, discharged them
from probation and declared the criminal case against them
terminated on various dates in April 2003.13 We have taken a second look at the court records, the CA Decision,
and petitioner’s arguments and found no basis to rule that the CA
gravely abused its discretion in concluding that the right to speedy
To support their claims, respondents attached14 certified true
trial of the accused was violated. Its findings were sufficiently
copies of their respective Applications for Probation and the RTC
supported by the records of the case and grounded in law. Thus,
Orders granting these applications, discharging them from
we deny the motion of petitioner Villa with finality.
probation, and declaring the criminal case against them
terminated. Thus, they maintain that the Decision in CA-G.R. No.
15520 had already lapsed into finality, insofar as they were Ruling on the Motion for Reconsideration filed by the OSG
concerned, when they waived their right to appeal and applied for
probation.
We likewise deny with finality the Motion for Reconsideration filed
by the OSG with respect to G.R. Nos. 155101 (Dizon v. People) and
ISSUES 154954 (People v. Court of Appeals). Many of the arguments raised
therein are essentially a mere rehash of the earlier grounds alleged
in its original Petition for Certiorari.
I. Whether the CA committed grave abuse of discretion amounting
to lack or excess of jurisdiction when it dismissed the case against
Escalona, Ramos, Saruca, and Adriano for violation of their right to Furthermore, we cannot subscribe to the OSG’s theory that even if
speedy trial the act complained of was born of imprudence or negligence,
malicious intent can still be appreciated on account of the gravity
of the actions of the accused. We emphasize that the finding of a
II. Whether the penalty imposed on Tecson et al. should have
felony committed by means of culpa is legally inconsistent with
corresponded to that for intentional felonies
that committed by means of dolo. Culpable felonies involve those
wrongs done as a result of an act performed without malice or
III. Whether the completion by Tecson et al. of the terms and criminal design. The Revised Penal Code expresses thusly:
conditions of their probation discharged them from their criminal
liability, and closed and terminated the cases against them
DISCUSSION
SPL CASES- PROBATION LAW
ARTICLE 365. Imprudence and Negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prisión correccional in
its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods
shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious
felony, the penalty of arresto mayor in its minimum period shall be
imposed. x x x x
Reckless imprudence consists in voluntary, but without malice,
doing or falling to do an act from which material damage results by
reason of inexcusable lack of precaution on the part of the person
performing or failing to perform such act, taking into consideration
his employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and
place.
Simple imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is not
immediate nor the danger clearly manifest. (Emphases supplied)
On the other hand, intentional felonies concern those wrongs in
which a deliberate malicious intent to do an unlawful act is present.
Below is our exhaustive discussion on the matter: 20 Our Revised
Penal Code belongs to the classical school of thought. The identity
of mens rea– defined as a guilty mind, a guilty or wrongful purpose
or criminal intent – is the predominant consideration. Thus, it is
not enough to do what the law prohibits. In order for an intentional
felony to exist, it is necessary that the act be committed by means
of dolo or "malice."
The term "dolo" or "malice" is a complex idea involving the
elements of freedom, intelligence, and intent. The element of intent
– on which this Court shall focus – is described as the state of mind
accompanying an act, especially a forbidden act. It refers to the
purpose of the mind and the resolve with which a person proceeds.
It does not refer to mere will, for the latter pertains to the act, while
intent concerns the result of the act. While motive is the "moving
power" that impels one to action for a definite result, intent is the
"purpose" of using a particular means to produce the result. On the
other hand, the term "felonious" means, inter alia, malicious,
villainous, and/or proceeding from an evil heart or purpose. With
these elements taken together, the requirement of intent in
intentional felony must refer to malicious intent, which is a vicious
and malevolent state of mind accompanying a forbidden act. Stated
otherwise, intentional felony requires the existence of dolus
malus– that the act or omission be done "willfully," "maliciously,"
"with deliberate evil intent," and "with malice aforethought." The
maxim is actus non facit reum, nisi mens sit rea– a crime is not
committed if the mind of the person performing the act complained
of is innocent. As is required of the other elements of a felony, the
existence of malicious intent must be proven beyond reasonable
doubt.
The presence of an initial malicious intent to commit a felony is
thus a vital ingredient in establishing the commission of the
intentional felony of homicide. Being mala in se, the felony of
homicide requires the existence of malice or dolo immediately
before or simultaneously with the infliction of injuries. Intent to kill
– or animus interficendi– cannot and should not be inferred, unless
there is proof beyond reasonable doubt of such intent.
Furthermore, the victim’s death must not have been the product of
accident, natural cause, or suicide. If death resulted from an act
executed without malice or criminal intent – but with lack of
foresight, carelessness, or negligence – the act must be qualified as
reckless or simple negligence or imprudence resulting in homicide.
xxxx
In order to be found guilty of any of the felonious acts under
Articles 262 to 266 of the Revised Penal Code, the employment of
physical injuries must be coupled with dolus malus. As an act that
is mala in se, the existence of malicious intent is fundamental, since
injury arises from the mental state of the wrongdoer – iniuria ex
affectu facientis consistat. If there is no criminal intent, the accused
cannot be found guilty of an intentional felony. Thus, in case of
physical injuries under the Revised Penal Code, there must be a
specific animus iniuriandi or malicious intention to do wrong
against the physical integrity or wellbeing of a person, so as to
incapacitate and deprive the victim of certain bodily functions.
Without proof beyond reasonable doubt of the required animus
iniuriandi, the overt act of inflicting physical injuries per se merely
satisfies the elements of freedom and intelligence in an intentional
felony. The commission of the act does not, in itself, make a man
guilty unless his intentions are.
Thus, we have ruled in a number of instances that the mere
infliction of physical injuries, absent malicious intent, does not
make a person automatically liable for an intentional felony.
The absence of malicious intent does not automatically mean,
however, that the accused fraternity members are ultimately
devoid of criminal liability. The Revised Penal Code also punishes
felonies that are committed by means of fault (culpa). According to
Article 3 thereof, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done
without malice, from which an immediate personal harm, injury or
material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it.
In this case, the danger is visible and consciously appreciated by
the actor. In contrast, simple imprudence or negligence comprises
an act done without grave fault, from which an injury or material
damage ensues by reason of a mere lack of foresight or skill. Here,
the threatened harm is not immediate, and the danger is not openly
visible.
The test for determining whether or not a person is negligent in
doing an act is as follows: Would a prudent man in the position of
the person to whom negligence is attributed foresee harm to the
person injured as a reasonable consequence of the course about to
be pursued? If so, the law imposes on the doer the duty to take
precaution against the mischievous results of the act. Failure to do
so constitutes negligence.
As we held in Gaid v. People, for a person to avoid being charged
with recklessness, the degree of precaution and diligence required
varies with the degree of the danger involved. If, on account of a
certain line of conduct, the danger of causing harm to another
person is great, the individual who chooses to follow that
particular course of conduct is bound to be very careful, in order to
prevent or avoid damage or injury. In contrast, if the danger is
minor, not much care is required. It is thus possible that there are
countless degrees of precaution or diligence that may be required
of an individual, "from a transitory glance of care to the most
vigilant effort." The duty of the person to employ more or less
degree of care will depend upon the circumstances of each
particular case. (Emphases supplied, citations omitted)
We thus reiterate that the law requires proof beyond reasonable
doubt of the existence of malicious intent or dolus malus before an
accused can be adjudged liable for committing an intentional
felony.
Since the accused were found to have committed a felony by means
of culpa, we cannot agree with the argument of the OSG. It contends
that the imposable penalty for intentional felony can also be
applied to the present case on the ground that the nature of the
imprudence or negligence of the accused was so gross that the
felony already amounted to malice. The Revised Penal Code has
carefully delineated the imposable penalties as regards felonies
committed by means of culpa on the one hand and felonies
committed by means of dolo on the other in the context of the
distinctions it has drawn between them. The penalties provided in
Article 365 (Imprudence and Negligence) are mandatorily applied
if the death of a person occurs as a result of the imprudence or
negligence of another. Alternatively, the penalties outlined in
Articles 246 to 261 (Destruction of Life) are automatically invoked
if the death was a result of the commission of a forbidden act
accompanied by a malicious intent. These imposable penalties are
statutory, mandatory, and not subjectto the discretion of the court.
We have already resolved – and the OSG agrees – that the accused
Dizon and Tecson et al. had neither animus interficendi nor animus
iniuriandi in inflicting physical pain on Lenny Villa. Hence, we rule
that the imposable penalty is what is applicable to the crime of
SPL CASES- PROBATION LAW
reckless imprudence resulting in homicide as defined and
penalized under Article 365 of the Revised Penal Code.
Ruling on the Motions for Clarification or Reconsideration filed by
Tecson et al.
We clarify, however, the effect of our Decision in light of the
motions of respondents Tecson et al. vis-à-vis G.R. No. 154954
(People v. Court of Appeals).
The finality of a CA decision will not bar the state from seeking the
annulment of the judgment via a Rule 65 petition.
In their separate motions,21 respondents insist that the previous
verdict of the CA finding them guilty of slight physical injuries has
already lapsed into finality as a result of their respective
availments of the probation program and their ultimate discharge
therefrom. Hence, they argue that they can no longer be convicted
of the heavier offense of reckless imprudence resulting in
homicide.22 Respondents allude to our Decision in Tan v.
People23 to support their contention that the CA judgment can no
longer be reversed or annulled even by this Court.
The OSG counters24 that the CA judgment could not have attained
finality, as the former had timely filed with this Court a petition for
certiorari. It argues that a Rule 65 petition is analogous to an
appeal, or a motion for new trial or reconsideration, in that a
petition for certiorari also prevents the case from becoming final
and executory until after the matter is ultimately resolved.
Indeed, Rule 120 of the Rules of Court speaks of the finality of a
criminal judgment once the accused applies for probation, viz:
SECTION 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 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. (7a) (Emphases supplied)
Coupled with Section 7 of Rule 11725 and Section 1 of Rule 122,26 it
can be culled from the foregoing provisions that only the accused
may appeal the criminal aspect of a criminal case, especially if the
relief being sought is the correction or review of the judgment
therein. This rule was instituted in order to give life to the
constitutional edict27 against putting a person twice in jeopardy of
punishment for the same offense. It is beyond contention that the
accused would be exposed to double jeopardy if the state appeals
the criminal judgment in order to reverse an acquittal or even to
increase criminal liability. Thus, the accused’s waiver of the right
to appeal – as when applying for probation – makes the criminal unassailability of a criminal judgment as soon as the accused
judgment immediately final and executory. Our explanation in applies for probation, we point out that what the state filed therein
People v. Nazareno is worth reiterating:28 was a mere motion for the modification of the penalty, and not a
Rule 65 petition. A petition for certiorari is a special civil action that
is distinct and separate from the main case. While in the main case,
Further prosecution via an appeal from a judgment of acquittal is
the core issue is whether the accused is innocent or guilty of the
likewise barred because the government has already been afforded
crime charged, the crux of a Rule 65 petition is whether the court
a complete opportunity to prove the criminal defendant’s
acted (a) without or in excess of its jurisdiction; or (b) with grave
culpability; after failing to persuade the court to enter a final
abuse of discretion amounting to lack or excess of jurisdiction.
judgment of conviction, the underlying reasons supporting the
Hence, strictly speaking, there is no modification of judgment in a
constitutional ban on multiple trials applies and becomes
petition for certiorari, whose resolution does not call for a re-
compelling. The reason is not only the defendant’s already
evaluation of the merits of the case in order to determine the
established innocence at the first trial where he had been placed in
ultimate criminal responsibility of the accused. In a Rule 65
peril of conviction, but also the same untoward and prejudicial
petition, any resulting annulment of a criminal judgment is but a
consequences of a second trial initiated by a government who has
consequence of the finding of lack of jurisdiction.
at its disposal all the powers and resources of the State.
In view thereof, we find that the proper interpretation of Section 7
Unfairness and prejudice would necessarily result, as the
of Rule 120 must be that it is inapplicable and irrelevant where the
government would then be allowed another opportunity to
court’s jurisdiction is being assailed through a Rule 65 petition.
persuade a second trier of the defendant’s guilt while
Section 7 of Rule 120 bars the modification of a criminal judgment
strengthening any weaknesses that had attended the first trial, all
only if the appeal brought before the court is in the nature of a
in a process where the government’s power and resources are once
regular appeal under Rule 41, or an appeal by certiorari under Rule
again employed against the defendant’s individual means. That the
45, and if that appeal would put the accused in double jeopardy. As
second opportunity comes via an appeal does not make the effects
it is, we find no irregularity in the partial annulment of the CA
any less prejudicial by the standards of reason, justice and
Decision in CA-G.R. No. 15520 in spite of its finality, as the
conscience. (Emphases supplied, citations omitted)
judgment therein was issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
It must be clarified, however, that the finality of judgment evinced
in Section 7 of Rule 120 does not confer blanket invincibility on
The orders of Caloocan City RTC Branch 130 have no legal effect, as
criminal judgments. We have already explained in our Decision
they were issued without jurisdiction.
that the rule on double jeopardy is not absolute, and that this rule
is inapplicable to cases in which the state assails the very
jurisdiction of the court that issued the criminal judgment.29 The First, Tecson et al. filed their Applications for Probation with the
reasoning behind the exception is articulated in Nazareno, from wrong court. Part and parcel of our criminal justice system is the
which we quote:30 authority or jurisdiction of the court to adjudicate and decide the
case before it. Jurisdiction refers to the power and capacity of the
tribunal to hear, try, and decide a particular case or matter before
In such instance, however, no review of facts and law on the merits,
it.31 That power and capacity includes the competence to
in the manner done in an appeal, actually takes place; the focus of
pronounce a judgment, impose a punishment,32 and enforce or
the review is on whether the judgment is per se void on
suspend33 the execution of a sentence in accordance with law.
jurisdictional grounds, i.e., whether the verdict was rendered by a
court that had no jurisdiction; or where the court has appropriate
jurisdiction, whether it acted with grave abuse of discretion The OSG questions34 the entire proceedings involving the
amounting to lack or excess of jurisdiction. In other words, the probation applications of Tecson et al. before Caloocan City RTC
review is on the question of whether there has been a validly Branch 130. Allegedly, the trial court did not have competence to
rendered decision, not on the question of the decision’s error or take cognizance of the applications, considering that it was not the
correctness. Under the exceptional nature of a Rule 65 petition, the court of origin of the criminal case. The OSG points out that the trial
burden — a very heavy one — is on the shoulders of the party court that originally rendered the Decision in Criminal Case No. C-
asking for the review to show the presence of a whimsical or 38340(91) was Branch 121 of the Caloocan City RTC.
capricious exercise of judgment equivalent to lack of jurisdiction;
or of a patent and gross abuse of discretion amounting to an
The pertinent provision of the Probation Law is hereby quoted for
evasion of a positive duty or a virtual refusal to perform a duty
reference:
imposed by law or to act in contemplation of law; or to an exercise
of power in an arbitrary and despotic manner by reason of passion
and hostility. (Emphases supplied, citations omitted) While this SEC. 4. Grant of Probation. — Subject to the provisions of this
Court’s Decision in Tan may have created an impression of the Decree, the trial court may, after it shall have convicted and
SPL CASES- PROBATION LAW
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. x x x x (Emphases supplied)
It is obvious from the foregoing provision that the law requires that
an application for probation be filed with the trial court that
convicted and sentenced the defendant, meaning the court of
origin. Here, the trial court that originally convicted and sentenced
Tecson et al. of the crime of homicide was Branch 121 – not Branch
130 – of the Caloocan City RTC.35 Neither the judge of Branch 130
in his Orders nor Tecson et al.in their pleadings have presented any
explanation or shown any special authority that would clarify why
the Applications for Probation had not been filed with or taken
cognizance of by Caloocan City RTC Branch 121. While we take
note that in a previous case, the CA issued a Decision ordering the
inhibition of Branch 121 Judge Adoracion G. Angeles from hearing
and deciding Criminal Case No. C-38340(91), the ruling was made
specifically applicable to the trial of petitioners therein, i.e. accused
Concepcion, Ampil, Adriano, and S. Fernandez.36
Tecson et al. thus committed a fatal error when they filed their
probation applications with Caloocan City RTC Branch 130, and not
with Branch 121. We stress that applicants are not at liberty to
choose the forum in which they may seek probation, as the
requirement under Section 4 of the Probation law is substantive
and not merely procedural. Considering, therefore, that the
probation proceedings were premised on an unwarranted exercise
of authority, we find that Caloocan City RTC Branch 130 never
acquired jurisdiction over the case.
Second, the records of the case were still with the CA when
Caloocan City RTC Branch 130 granted the probation applications.
Jurisdiction over a case is lodged with the court in which the
criminal action has been properly instituted.37 If a party appeals
the trial court’s judgment or final order,38 jurisdiction is
transferred to the appellate court. The execution of the decision is
thus stayed insofar as the appealing party is concerned.39 The court
of origin then loses jurisdiction over the entire case the moment
the other party’s time to appeal has expired.40 Any residual
jurisdiction of the court of origin shall cease – including the
authority to order execution pending appeal – the moment the
complete records of the case are transmitted to the appellate
court.41 Consequently, it is the appellate court that shall have the
authority to wield the power to hear, try, and decide the case
before it, as well as to enforce its decisions and resolutions
appurtenant thereto. That power and authority shall remain with
the appellate court until it finally disposes of the case. Jurisdiction
cannot be ousted by any subsequent event, even if the nature of the
incident would have prevented jurisdiction from attaching in the
first place.
According to Article 78 of the Revised Penal Code, "[n]o penalty
shall be executed except by virtue of a final judgment." A judgment
of a court convicting or acquitting the accused of the offense
charged becomes final under any of the following conditions
among others:42 after the lapse of the period for perfecting an
appeal; when the accused waives the right to appeal; upon the
grant of a withdrawal of an appeal; when the sentence has already
been partially or totally satisfied or served; or when the accused
applies for probation. When the decision attains finality, the
judgment or final order is entered in the book of entries of
judgments.43 If the case was previously appealed to the CA, a
certified true copy of the judgment or final order must be attached
to the original record, which shall then be remanded to the clerk of
the court from which the appeal was taken.44 The court of origin
then reacquires jurisdiction over the case for appropriate action. It
is during this time that the court of origin may settle the matter of
the execution of penalty or the suspension of the execution
thereof,45 including the convicts’ applications for probation.46
A perusal of the case records reveals that the CA had not yet
relinquished its jurisdiction over the case when Caloocan City RTC
Branch 130 took cognizance of the Applications for Probation of
Tecson et al. It shows that the accused filed their respective
applications47 while a motion for reconsideration was still pending
before the CA48 and the records were still with that court.49 The CA
settled the motion only upon issuing the Resolution dated 30
August 2002 denying it, or about seven months after Tecson et al.
had filed their applications with the trial court.50 In September
2002, or almost a month before the promulgation of the RTC Order
dated 11 October 2002 granting the probation applications, 51 the
OSG had filed Manifestations of Intent to File Petition for Certiorari
with the CA52 and this Court.53 Ultimately, the OSG assailed the CA
judgments by filing before this Court a Petition for Certiorari on 25
November 2002.54 We noted the petition and then required
respondents to file a comment thereon.55 After their submission of
further pleadings and motions, we eventually required all parties
to file their consolidated memoranda.56 The records of the case
remained with the CA until they were elevated to this Court in
2008.57
For the foregoing reasons, we find that RTC Branch 130 had no
jurisdiction to act on the probation applications of Tecson et al. It
had neither the power nor the authority to suspend their sentence,
place them on probation, order their final discharge, and
eventually declare the case against them terminated. This glaring
jurisdictional faux pas is a clear evidence of either gross ignorance
of the law or an underhanded one-upmanship on the part of RTC
Branch 130 or Tecson et al., or both – to which this Court cannot
give a judicial imprimatur.
In any event, Tecson et al. were ineligible to seek probation at the
time they applied for it. Probation58 is a special privilege granted
by the state to penitent qualified offenders who immediately admit
their liability and thus renounce their right to appeal. In view of
their acceptance of their fate and willingness to be reformed, the
state affords them a chance to avoid the stigma of an incarceration
record by making them undergo rehabilitation outside of prison.
Some of the major purposes of the law are to help offenders to
eventually develop themselves into law-abiding and self-
respecting individuals, as well as to assist them in their
reintegration with the community.
It must be reiterated that probation is not a right enjoyed by the
accused. Rather, it is an act of grace or clemency conferred by the
state. In Francisco v. Court of Appeals,59 this Court explained thus:
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. (Emphases supplied)
The OSG questions the validity of the grant of the probation
applications of Tecson et al.60 It points out that when they appealed
to the CA their homicide conviction by the RTC, they thereby made
themselves ineligible to seek probation pursuant to Section 4 of
Presidential Decree No. 968 (the Probation Law).
We refer again to the full text of Section 4 of the Probation Law as
follows:
SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best;
Provided, That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. 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.
Indeed, one of the legal prerequisites of probation is that the
offender must not have appealed the conviction.61 In the 2003 case
Lagrosa v. Court of Appeals,62 this Court was faced with the issue of
whether a convict may still apply for probation even after the trial
court has imposed a non probationable verdict, provided that the
CA later on lowers the original penalty to a sentence within the
SPL CASES- PROBATION LAW
probationable limit. In that case, the trial court sentenced the
accused to a maximum term of eight years of prisión mayor, which
was beyond the coverage of the Probation Law. They only became
eligible for probation after the CA reduced the maximum term of
the penalty imposed to 1 year, 8 months and 21 days of prisión
correccional.
In deciding the case, this Court invoked the reasoning in Francisco
and ruled that the accused was ineligible for probation, since they
had filed an appeal with the CA. In Francisco, we emphasized that
Section 4 of the Probation Law offers no ambiguity and does not
provide for any distinction, qualification, or exception. What is
clear is that all offenders who previously appealed their cases,
regardless of their reason for appealing, are disqualified by the law
from seeking probation. Accordingly, this Court enunciated in
Lagrosa that the accused are disallowed from availing themselves
of the benefits of probation if they obtain a genuine opportunity to
apply for probation only on appeal as a result of the downgrading
of their sentence from non-probationable to probationable.
While Lagrosa was promulgated three months after Caloocan City
RTC Branch 130 issued its various Orders discharging Tecson et al.
from probation, the ruling in Lagrosa, however, was a mere
reiteration of the reasoning of this Court since the 1989 case
Llamado v. Court of Appeals63 and Francisco. The Applications for
Probation of Tecson et al., therefore, should not have been granted
by RTC Branch 130, as they had appealed their conviction to the
CA. We recall that respondents were originally found guilty of
homicide and sentenced to suffer 14 years, 8 months, and 1 day of
reclusion temporal as maximum. Accordingly, even if the CA later
downgraded their conviction to slight physical injuries and
sentenced them to 20 days of arresto menor, which made the
sentence fall within probationable limits for the first time, the RTC
should have nonetheless found them ineligible for probation at the
time.
The actions of the trial court must thus be adjudged as an arbitrary
and despotic use of authority, so gross that it divested the court of
its very power to dispense justice. As a consequence, the RTC
Orders granting the Applications for Probation of Tecson et al. and
thereafter discharging them from their criminal liability must be
deemed to have been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Whether for lack of jurisdiction or for grave abuse of discretion,
amounting to lack or excess of jurisdiction, we declare all orders,
resolutions, and judgments of Caloocan City RTC Branch 130 in
relation to the probation applications of Tecson et al. null and void
for having been issued without jurisdiction. We find our
pronouncement in Galman v. Sandiganbayan64 applicable, viz:
A void judgment is, in legal effect, no judgment at all. By it no rights
are divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims
flowing out of it are void. (Emphasis supplied)
The ultimate discharge of Tecson et al. from probation did not totally
extinguish their criminal liability.
Accused Bantug asserts65 that, in any event, their criminal liability
has already been extinguished as a result of their discharge from
probation and the eventual termination of the criminal case against
them by Caloocan City RTC Branch 130. To support his argument,
he cites the following provision of the Revised Penal Code:
ARTICLE 89. How Criminal Liability is Totally Extinguished. —
Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal
penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the
offender occurs before final judgment.
2. By service of the sentence.
3. By amnesty, which completely extinguishes the
penalty and all its effects.
4. By absolute pardon.
5. By prescription of the crime.
6. By prescription of the penalty.
7. By the marriage of the offended woman, as provided
in article 344 of this Code. (Emphasis supplied)
As previously discussed, a void judgment cannot be the source of
legal rights; legally speaking, it is as if no judgment had been
rendered at all. Considering our annulment of the Orders of
Caloocan City RTC Branch 130 in relation to the probation
proceedings, respondents cannot claim benefits that technically do
not exist.
In any event, Tecson et al. cannot invoke Article89 of the Revised
Penal Code, as we find it inapplicable to this case. One of the
hallmarks of the Probation Law is precisely to "suspend the
execution of the sentence,"66 and not to replace the original
sentence with another, as we pointed out in our discussion in
Baclayon v. Mutia:67
An order placing 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. (Emphases supplied)
Correspondingly, the criminal liability of Tecson et al.remains. In
light of our recent Decision in Colinares v. People, Tecson et al.
may now reapply for probation.
Very recently, in Colinares v. People, 68 we revisited our ruling in
Francisco and modified our pronouncements insofar as the
eligibility for probation of those who appeal their conviction is
concerned. Through a majority vote of 9-6, the Court En Banc in
effect abandoned Lagrosa and settled the following once and for
all:69
Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from
availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court, now
set aside; and, two, a conviction for attempted homicide by the
Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position,
it will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him.
More, the Supreme Court’s judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial
court’s judgment — even if this has been found in error. And,
worse, Arnel will now also be made to pay for the trial court’s
erroneous judgment with the forfeiture of his right to apply for
probation. Ang kabayo ang nagkasala, ang hagupit ay sa
kalabaw(the horse errs, the carabao gets the whip). Where is
justice there?
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appeals that the probation law requires that
an accused must not have appealed his conviction before he can
avail himself of probation. But there is a huge difference between
Francisco and this case.
Here, however, Arnel did not appeal from a judgment that would
have allowed him to apply for probation. He did not have a choice
between appeal and probation. He was not in a position to say, "By
taking this appeal, I choose not to apply for probation." The stiff
penalty that the trial court imposed on him denied him that choice.
Thus, a ruling that would allow Arnel to now seek probation under
this Court’s greatly diminished penalty will not dilute the sound
SPL CASES- PROBATION LAW
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.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy
is not served by a harsh and stringent interpretation of the
statutory provisions. As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be regarded as a
mere privilege to be given to the accused only where it clearly
appears he comes within its letter; to do so would be to disregard
the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but
to achieve its beneficent purpose.
At any rate, what is clear is that, had the RTC done what was right
and imposed on Arnel the correct penalty of two years and four
months maximum, he would have had the right to apply for
probation. No one could say with certainty that he would have
availed himself of the right had the RTC done right by him. The idea
may not even have crossed his mind precisely since the penalty he
got was not probationable.
The question in this case is ultimately one of fairness.1âwphi1 Is it
fair to deny Arnel the right to apply for probation when the new
penalty that the Court imposes on him is, unlike the one
erroneously imposed by the trial court, subject to probation?
(Emphases supplied)
In our Decision, we set aside the RTC and the CA judgments and
found Tecson et al. ultimately liable for the crime of reckless
imprudence resulting in homicide. Pursuant to Article 365 of the
Revised Penal Code, the offense is punishable by arresto mayor in
its maximum period (from 4 months and 1 day to 6 months) to
prisión correccional in its medium period (from 2 years, 4 months,
and 1 day to 4 years and 2 months). Considering that the new
ruling in Colinares is more favorable to Tecson et al., we rule that
they are now eligible to apply for probation. Since Fidelito Dizon
(Dizon) was convicted of the same crime, we hereby clarify that
Dizon is also eligible for probation.
While we cannot recognize the validity of the Orders of RTC Branch
130, which granted the Applications for Probation, we cannot
disregard the fact that Tecson et al. have fulfilled the terms and
conditions of their previous probation program and have
eventually been discharged therefrom. Thus, should they reapply
for probation, the trial court may, at its discretion, consider their
antecedent probation service in resolving whether to place them
under probation at this time and in determining the terms,
conditions, and period thereof.
Final clarificatory matters
We now take this opportunity to correct an unintentional
typographical error in the minimum term of the penalty imposed
on the accused Dizon and Tecson et al. While this issue was not
raised by any of the parties before us, this Court deems it proper to
discuss the matter ex proprio motu in the interest of justice. In the
first paragraph of the dispositive portion of our Decision dated 1
February 2012, the fourth sentence reads as follows:
They are hereby sentenced to suffer an indeterminate prison term
of four (4) months and one (1) day of arresto mayor, as minimum,
to four (4) years and two (2) months of prisión correccional, as
maximum.
As we had intended to impose on the accused the maximum term
of the "penalty next lower" than that prescribed by the Revised
Penal Code for the offense of reckless imprudence resulting in
homicide, in accordance with the Indeterminate Sentence Law
(ISL),70 the phrase "and one (1) day," which had been inadvertently
added, must be removed. Consequently, in the first paragraph of
the dispositive portion, the fourth sentence should now read as
follows:
They are hereby sentenced to suffer an indeterminate prison term
of four (4) months of arresto mayor, as minimum, to four (4) years
and two (2) months of prisión correccional, as maximum. In this
instance, we further find it important to clarify the accessory
penalties inherent to the principal penalty imposed on Dizon and
Tecson et al.
By operation of Articles 40 to 45 and 73 of the Revised Penal Code,
a corresponding accessory penalty automatically attaches every
time a court lays down a principal penalty outlined in Articles 25
and 27 thereof.71 The applicable accessory penalty is determined
by using as reference the principal penalty imposed by the court
before the prison sentence is computed in accordance with the
ISL.72 This determination is made in spite of the two classes of
penalties mentioned in an indeterminate sentence. It must be
emphasized that the provisions on the inclusion of accessory
penalties specifically allude to the actual "penalty"73 imposed, not
to the "prison sentence"74 set by a court. We believe that the ISL did
not intend to have the effect of imposing on the convict two distinct
sets of accessory penalties for the same offense.75 The two
penalties are only relevant insofar as setting the minimum
imprisonment period is concerned, after which the convict may
apply for parole and eventually seek the shortening of the prison
term.76
Under Article 365 of the Revised Penal Code, the prescribed
penalty for the crime of reckless imprudence resulting in homicide
is arresto mayor in its maximum period to prisión correccional in
its medium period. As this provision grants courts the discretion to
lay down a penalty without regard to the presence of mitigating
and aggravating circumstances, the imposable penalty must also
be within the aforementioned range.77 Hence, before applying the
ISL, we ultimately imposed on Dizon and Tecson et al. the actual
(straight) penalty78 of four years and two months of prisión
correccional.79 Pursuant to Article 43 of the Revised Penal Code,
the penalty of prisión correccional automatically carries with
it80 the following accessory penalties: ARTICLE 43. Prisión
Correccional— Its accessory penalties. — The penalty of prisión
correccional shall carry with it that of suspension from public
office, from the right to follow a profession or calling, and that of
perpetual special disqualification from the right of suffrage, if the
duration of said imprisonment shall exceed eighteen months. The
offender shall suffer the disqualification provided in this article
although pardoned as to the principal penalty, unless the same
shall have been expressly remitted in the pardon.
The duration of their suspension shall be the same as that of their
principal penalty sans the ISL; that is, for four years and two
months81 or until they have served their sentence in accordance
with law. Their suspension takes effect immediately, once the
judgment of conviction becomes final.82
We further point out that if the length of their imprisonment
exceeds 18 months, they shall furthermore suffer a perpetual
special disqualification from the right of suffrage. Under Article 32
of the Revised Penal Code, if this accessory penalty attaches, it shall
forever deprive them of the exercise of their right (a) to vote in any
popular election for any public office; (b) to be elected to that
office; and (c) to hold any public office.83 Any public office that they
may be holding becomes vacant upon finality of the
judgment.84 The aforementioned accessory penalties can only be
wiped out if expressly remitted in a pardon.85
Of course, the aforementioned accessory penalties are without
prejudice to a grant of probation, should the trial court find them
eligible therefor. As we explained in Baclayon,86 the grant of
probation suspends the execution of the principal penalty of
imprisonment, as well as that of the accessory penalties. We have
reiterated this point in Moreno v. Commission on Elections: 87
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a
SPL CASES- PROBATION LAW
profession or calling, and that of perpetual special disqualification
from the right of suffrage. We thus deleted from the order granting
probation the paragraph which required that petitioner refrain
from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties
of suspension from public office, from the right to follow a
profession or calling, and that of perpetual special disqualification
from the right of suffrage, attendant to the penalty of arresto mayor
in its maximum period to prision correccional in its minimum
period imposed upon Moreno were similarly suspended upon the
grant of probation.
It appears then that during the period of probation, the
probationer is not even disqualified from running for a public
office because the accessory penalty of suspension from public
office is put on hold for the duration of the probation. x x x x. During
the period of probation, the probationer does not serve the penalty
imposed upon him by the court but is merely required to comply
with all the conditions prescribed in the probation order.
WHEREFORE, premises considered, the Motion for Partial
Reconsideration of petitioner Gerarda H. Villa in connection with
G.R. Nos. 178057 & 178080 is hereby DENIED. The Motion for
Reconsideration filed by the Office of the Solicitor General
concerning G.R. Nos. 155101 and 154954 is also DENIED.
The respective Motions for Clarification or Reconsideration of
Antonio Mariano Almeda, Junel Anthony D. Arna, Renato Bantug,
Jr., and Vincent Tecson are likewise DENIED. In light of the finding
that Caloocan City Regional Trial Court Branch 130 acted without
or in excess of its jurisdiction in taking cognizance of the
aforementioned Applications for Probation, we hereby ANNUL the
entire probation proceedings and SET ASIDE all orders,
resolutions, or judgments issued in connection thereto. We,
however, CLARIFY that Antonio Mariano Almeda, Junel Anthony D.
Arna, Renato Bantug, Jr., Vincent Tecson, and Fidelito Dizon are
eligible to apply or reapply for probation in view of our recent
ruling in Colinares v. People of the Philippines,88 without prejudice
to their remaining civil liability, if any.
Furthermore, we issue a CORRECTION of the dispositive portion of
our Decision dated 1 February 2012 and hereby delete the phrase
"and one (1) day" located in the fourth sentence of the first
paragraph thereof. The sentence shall now read as follows: "They
are hereby sentenced to suffer an indeterminate prison term of
four (4) months of arresto mayor, as minimum, to four (4) years
and two (2) months of prisi6n correccional, as maximum." SO
ORDERED.
ENRIQUE ALMERO y ALCANTARA vs. PEOPLE OF THE
PHILIPPINES G.R. No. 188191 March 12, 2014
We resolve the petition filed under Rule 45 of the 1997 Rules of
Civil Procedure by Enrique Almero y Alcantara from the Decision
of the Court of Appeals (CA) dated 26 September 2008 and
Resolution dated 29 May 2009 in CA-G.R. SP. No. 103030.1
THE MTC RULING IN CRIMINAL CASE No. 96-6531
Petitioner is the accused in Criminal Case No. 96-6531 for reckless
imprudence resulting in homicide and multiple physical injuries.
After private respondents reserved the right to institute a separate
action for damages, trial ensued. On 8 January 2007, the Municipal
Trial Court (MTC) of Labo, Camarines Norte found petitioner guilty
and sentenced him to suffer prision correccional in its medium and
maximum periods.
Petitioner filed an Application for Probation on 7 September 2007,
reasoning that he was informed of his conviction only upon being
served the warrant for his arrest.2 Prosecutor Analie Velarde
opposed his application on the ground that he was known to be
uncooperative, habitually absent, and had even neglected to inform
the court of his change of address. On 22 February 2007, the MTC
denied his application, prompting petitioner to file a special civil
action with the Regional Trial Court (RTC). While his first Petition
raised the sole issue of the denial of his application for probation,
he filed a Supplemental Petition,3 which a) assailed the validity of
the promulgation of the 8 January 2007 judgment; and b)
impleaded private complainants Mirasol Bartolome, Clarita P.
Matias, Rosendo P. Matias and Antonio P. Matias.
THE RTC RULING IN SPECIAL CIVIL ACTION NO. 07-0012
In his supplemental Petition, petitioner stated that upon close
scrutiny, he discovered that the judgment itself was premature and
flawed, because the MTC never ruled upon his Formal Offer of
Exhibits.4 The RTC found that the MTC committed grave abuse of
discretion in rendering judgment without first ruling on his Formal
Offer of Exhibits since, technically, petitioner had not yet rested his
case. It also ruled that the promulgation of judgment was similarly
tainted with grave abuse of discretion, because petitioner was not
present at the time, in violation of Section 6, Rule 120 of the Rules
of Court. Without addressing the issue of probation, the dispositive
portion states:
WHEREFORE, premises considered, the instant petition for
Certiorari is hereby GRANTED. The judgment promulgated on 22
February, 2007 is hereby SET ASIDE AND NULLIFIED and the case
is remanded to the Municipal Trial Court of Labo, Camarines Norte
for further proceedings.
The Director of the Bureau of Corrections, Muntinlupa City or any
person acting in his behalf to release immediately petitioner
ENRIQUE ALMERO Y ALCANTARA from detention by virtue of the
property bond posted by him for his provisional liberty in Criminal
Case No. 96-6531, unless he is being detained for some other lawful
cause or causes. No costs. SO ORDERED.5
THE CA RULING
The CA ruled that the RTC should have confined itself to
determining whether or not the MTC committed grave abuse of
discretion in denying petitioner’s application for probation. Since
no appeal or other plain, speedy and adequate remedy in the
ordinary course of law is available against the denial of probation,
a Rule 65 petition is clearly the appropriate remedy. However, the
trial court erred in taking cognizance of supplemental grounds
assailing the judgment of conviction, because an application for
probation is a waiver of the right to appeal from the judgment of
conviction and effectively renders the same final. The CA ruled that
even assuming petitioner failed to be present at the promulgation
of judgment, he had no one but himself to blame for failing to
inform the MTC of his change of address.6
On the argument that private respondents possessed no legal
personality to represent the State in a criminal case, the CA held
that petitioner himself impleaded them in the certiorari petition
before the RTC. The CA also found that petitioner filed his
application for probation only on 7 September 2007, or more than
one month after he received notice of the judgment of conviction.
Inasmuch as the grant of probation rests solely on the discretion of
the court, the denial thereof cannot be considered grave abuse, viz.:
WHEREFORE, premises considered, the trial court’s appealed
January 28, 2008 Decision is REVERSED and SET ASIDE. In lieu
thereof, another is entered ordering the DISMISSAL of appellee’s
petition for certiorari.7
Petitioner comes before this Court, assigning the following errors:
I. The Court of Appeals committed an error of law in
ruling that private complainants have personality to
appeal the 28 January 2008 Decision of the RTC.
II. The Court of Appeals committed an error of law in
ruling that the RTC reversibly erred in nullifying
petitioner’s judgment of conviction.
III. The Court of Appeals committed an error of law in
ruling that petitioner is not entitled to probation.8
OUR RULING The Petition lacks merit.
Anent the first issue, petitioner argues that in criminal cases, the
offended party is the State, and that private complainants’ interest
is limited to the civil liability arising therefrom. Petitioner's
SPL CASES- PROBATION LAW
application for probation purportedly did not involve the civil
aspect of the case. Heirs of the Late Francisco Abueg v. Court of
Appeals cited by the CA allegedly cannot apply, since it does not
even discuss the right of private complainants to interpose an
appeal.
In the Comment9 it filed, the Office of the Solicitor General (OSG)
reiterated that what petitioner filed with the RTC was a petition for
certiorari, which is a special civil action. It cannot be considered an
appeal in a criminal case over which only the State has an interest,
but an appeal in a civil action from which private persons can
appeal in the event of an adverse outcome. Private respondents, in
their Comment,10 argued that the CA correctly applied Abueg,
which is on all fours with the present case. In Abueg, the accused
was convicted of reckless imprudence resulting in homicide and
damage to property for crashing against and killing Francisco
Abueg. Instead of filing an appeal, the accused applied for
probation. After the CA affirmed the grant of probation, the
Supreme Court entertained and acted upon the petition for
certiorari filed by the victims’ heirs.11
We agree with the submission of the respondents. While the
present petition originated from a criminal proceeding, what
petitioner filed with the RTC was a special civil action, in which he
himself impleaded private respondents. He cannot now belatedly
change his stance to the prejudice of private respondents, who
would otherwise be deprived of recourse in a civil action they did
not initiate. In any case, this Court has consistently ruled that
private parties may be clothed with sufficient personality if the
facts show that the ends of substantial justice would be better
served, and if the issues in the action could be determined in a
more just, speedy and inexpensive manner.
In Narciso vs. Sta. Romana-Cruz,12 citing People v. Calo, Jr.,13 the
Supreme Court ruled:
While the rule is, as held by the Court of Appeals, only the Solicitor
General may bring or defend actions on behalf of the Republic of
the Philippines, or represent the People or the State in criminal
proceeding pending in this Court and the Court of Appeals, the ends
of substantial justice would be better served, and the issues in this
action could be determined in a more just, speedy and inexpensive
manner, by entertaining the petition at bar. As an offended party in
a criminal case, private petitioner has sufficient personality and a
valid grievance against Judge Adao’s order granting bail to the
alleged murderers of his (private petitioner’s) father. 14 (Citations
omitted.)
Furthermore, in Paredes v. Gopengco, it was held that parties in
criminal cases have sufficient personality as "person(s) aggrieved"
to file the special civil action of prohibition and certiorari under
Sections 1 and 2 of Rule 65 in line with the underlying spirit of the
liberal construction of the rules, to wit:
Furthermore, as offended parties in the pending criminal case
before petitioner judge, it cannot be gainsaid that respondents
have sufficient interest and personality as ‘person(s) aggrieved’ by
petitioner judge’s ruling on his non-disqualification to file the
special civil action under sections 1 and 2 of Rule 65. Recently in
line with the underlying spirit of a liberal construction of the Rules
of Court in order to promote their object, as against the literal
application of Rule 110, section 2, we held, overruling the
implication of an earlier case, that a widow possesses the right as
an offended party to file a criminal complaint for the murder of her
deceased husband.15
Petitioner’s second and third arguments are brought by an
erroneous understanding of the nature of probation and shall be
discussed jointly.
Probation is not a right but a mere privilege, an act of grace and
clemency conferred by the State, and may be granted by the court
to a deserving defendant. Accordingly, the grant of probation rests
solely upon the discretion of the court. It is to be exercised
primarily for the benefit of organized society, and only incidentally
for the benefit of the accused.16
In Francisco v. Court of Appeals, the Court explained:
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… he now applies for probation as an "escape
hatch" thus rendering nugatory the appellate court's affirmance of
his conviction.17
Aside from the goals of according expediency and liberality to the
accused, the rationale for the treatment of appeal and probation as
mutually exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for probation is
deemed to have accepted the judgment. The application for
probation is an admission of guilt on the part of an accused for the
crime which led to the judgment of conviction.18 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.19
Similarly, in the present case, petitioner cannot make up his mind
whether to question the judgment, or apply for probation, which is
necessarily deemed a waiver of his right to appeal.20 While he did
not file an appeal before applying for probation, he assailed the
validity of the conviction in the guise of a petition supposedly
assailing the denial of probation. In so doing, he attempted to
circumvent P.D. No. 968, as amended by P.D. 1990, which seeks to
make appeal and probation mutually exclusive remedies.
The assignment of errors in the Petition before us reflects the
diametrically opposed positions taken by accused petitioner. On
the one hand, he bewails the defects committed by the trial court
during the promulgation of the judgment, thus casting doubt on the
judgment itself. Yet in the same breath, he persists in his
application for probation, despite the waiver and admission of guilt
implicit in any procedure for probation – precisely the unhealthy
wager the law seeks to prevent.
Petitioner applied for probation beyond the reglementary period,
yet the trial court still allowed the filing before ultimately denying
it for lack of merit. Regarding this delay and the other defects
imputed by petitioner to the RTC, we concur with the findings of
the CA:
(W)e find that public respondent committed no grave abuse of
discretion in denying appellee’s application for probation. Granted
that appellee had not received the notice of the January 8, 2007
decision rendered in Criminal Case No. 06-6531, it appears from
the record that appellee had no one but himself to blame for the
procedural quagmire he subsequently found himself in. In denying
appellee’s motion for reconsideration of the September 18, 2007
denial of the application for probation, public respondent
distinctly ruled as follows:
x x x. (T)he application has been filed out of time as accused himself
admitted in the motion.1âwphi1 He blames Atty. Evan D. Dizon, his
former counsel, for not notifying the court of his change of address
but Atty. Dizon himself had been trying to contact accused since
2001 even before he filed his formal offer of evidence since all
notices sent to the accused’s given address have been returned to
this court since 2001. If it is true that he moved to Cavite only in
2003, why were said notices returned with notations ‘unknown,’
‘unclaimed,’ or ‘moved’?21
This Court will not countenance pleas for liberality in adverse
outcomes caused by the negligence and evasiveness of the parties
themselves. WHEREFORE, in view of the foregoing, we deny the
instant Petition for lack of merit. The Court of Appeals Decision and
Resolution in CA-G.R. SP No. 103030 dated 26 September 2008 and
29 May 2009 are hereby AFFIRMED, respectively. SO ORDERED.
SPL CASES- PROBATION LAW
PATERNO DE LOS SANTOS, JR. V. COURT OF APPEALS 13TH
DIVISION, ET AL. [G.R. No. 181306: March 21, 2011]
Sirs/Mesdames: Please take notice that the Court, Second Division,
issued a Resolution dated 21 March 2011 which reads as follows:
G.R. No. 181306 (Paterno de Los Santos, Jr. v. Court of Appeals
13th Division, et al.) - Before this Court is a petition for review
on certiorari of the Resolution dated June 18, 2007 of the Court of
Appeals in CA-G.R. CR No. 20472 which denied petitioner Paterno
de Los Santos, Jr.'s (petitioner) application for probation, and the
Resolution dated December 10, 2007 which denied petitioner's
motion for reconsideration.
On November 20, 1996, the Regional Trial Court of Cebu, Branch
58 rendered a Decision finding petitioner Paterno de los Santos, Jr.
guilty of the crime of intentional abortion. Petitioner was
sentenced to suffer the penalty of 6 years and one day to 8 years
of prison mayor; as maximum.
Petitioner appealed his conviction to the Court of Appeals,
docketed as CA-G.R. CR No. 20472. The appellate court affirmed
petitioner's conviction with modification as to the penalty imposed
by reducing the penalty to 6 months of arresto mayor, as minimum,
to 3 years, 6 months and 21 days, as maximum.
Petitioner then filed an application for probation. In the disputed
Resolution dated June 18, 2007, the appellate court denied
petitioner's application. Petitioner filed a motion for
reconsideration, but was likewise denied in a Resolution dated
December 10, 2007. The appellate court ruled that pursuant to
Section 4 of Presidential Decree No. (P.D.) 968 as amended by P.D.
1990, petitioner is ineligible to apply for probation, considering the
fact that he has waived his right to avail the benefits of probation
law when he appealed the judgment of conviction by the trial court.
Hence, this Petition for Review on Certiorari under Rule 45 of the
Rules of Court raising the issue of whether 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.
Petitioner prays that he should be allowed to apply for probation
even if he had appealed the decision of the trial court. He argues
that his application should be treated as an exception to the general
rule which excludes an accused who has appealed his conviction
from the benefits of probation. Petitioner asserts that in his case,
he only became eligible for probation only after the Court of
Appeals modified the judgment of the trial court and reduced the
maximum term of the penalty imposed to 3 years, 6 months and 21
days.
In its Comment, the Office of the Solicitor General (OSG), invoking
Section 4 of P.D. 968, asserts the prohibition of the grant of
probation to those who have appealed their conviction. Thus, when
petitioner filed an appeal from the trial court's decision, he was, in
effect, precluded from the benefits of probation. The OSG likewise
maintained that petitioner is disqualified from availing the benefits
of probation, considering that the trial court sentenced him to
suffer an imprisonment of more than six (6) years which is not
probationable. The petition is without merit.
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.[2]
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.[3]
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 facto relinquished the
alternative remedy of availing of the Probation Law.[4]
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.[5]
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.
WHEREFORE, premises considered, the instant petition
is DENIED. The Resolutions dated June 18, 2007 and December 10,
2007, respectively, are AFFIRMED. Nachura, J., on sabbatical leave;
Velasco, Jr., J., designated additional member per S.O. No. 933 dated
24 January 2011. Mendoza, J., on leave; Brion, J., designated
additional member per S.O. No. 975 dated 21 March 2011. SO
ORDERED.
THE UNITED STATES vs. CESAREO DURBAN G.R. No. L-
12510 August 27, 1917
It appears from the record in this case that upon November 30,
1914, the judge of the Court of First Instance of Iloilo, upon the
petition and recommendation of Salvador Laguda, a practicing
lawyer of Iloilo, named Cesareo Durban as procurador judicial,
with the right to appear in the courts of the justices of the peace in
the Province of Iloilo as the representative of said Salvador Laguda,
subject to certain restrictions which were set out in the
appointment. So far as affects the question involved in this case
these restrictions were that the said Durban should only be
permitted to appear in matters signed and presented by the said
Laguna with his own signature and when the latter should send the
said Durban to attend to such mattes; that the said Durban should
have no authority to make contracts to represent any person in any
justice court; that all contracts and appearances should be made by
the said Laguda, and that the latter could send the said Durban to
represent him in said courts; and finally that said Durban should
not collect any sum for any service.
Upon a certain occasion while Laguda was absent for two months
an elderly woman, Eustaqui Montage by name, a resident of an
outlying municipality, was brought to the office by a man named
Adriano Coronado. They were seeking a lawyer to represent her in
a complaint in the justice of the peace court in her municipality.
Durban received the two and upon being informed of the nature of
their errand gave her to understand through Coronado, who acted
as the principal spokesman, that he could attend to the business for
her. He was therefore engaged and did attend to that suit in the
justice of the peace court successfully. He collected P10 from her
that day, and P10 upon each of the three visits he made out into the
country to attend to the proceedings in the justice of the peace
court and when the case was there concluded Coronado paid him
another P10 from her money as a gratification. This made P50 in
all which was received by Durban in respect to that business. The
suit in the justice of the peace court involved no more than the
possession of a piece of land worth about P20; and the fee collected
by Durban was greatly in excess of what he should have received.
Section 34 of the Code of Civil Procedure as amended by Act No.
1919 provides that the compensation of a procurador judicial shall
SPL CASES- PROBATION LAW
not exceed P5 for all services rendered in any one case. But Durban
claims that he was representing the office of Laguda and therefore
was entitled to charge more.
There would seem to be no just grounds for questioning the power
of the judge of the Court of First Instance to limit and restrict the
activities of procuradores judiciales appointed under section 34 of
the Code of Civil Procedure, as amended by Act No. 1919. It follows
that the defendant was unauthorized by such appointment to
represent Eustaquia Montage in the court of the justice of the peace
or to collect money for services therein rendered. As to all these
matters he is clearly in no better position than if he had never been
appointed procurador judicial. Section 34 of the Code of Civil
Procedure, as amended by Act No. 1919, says:
No person not duly authorized to practice law may
engaged in the occupation of appearing for or defending
other persons in justice of the peace courts without
being first authorized for that purpose by the judge of
the Court of First Instance.
The defendant therefore has violated this provision of law; and the
question is whether or not he is guilty of estafa, under subsection
1 of article 535 of the Penal Code, as having defrauded another by
falsely pretending to possess a qualification not actually possessed
by him.
As the accused successfully managed the litigation which he
undertook to conduct there might at first view seem to be room for
the contention that the complaining witness was not defrauded
within the meaning of the provision of the Penal Code referred to
above. But we believe that this position is not tenable. It would
seem to be clear that one who, falsely representing his own
qualifications, renders a service which the law expressly declares
to be unlawful defrauds the person who in good faith receives and
pays for such services. In United States vs. Del Castillo (35 Phil.
Rep., 413), this court held that a man who obtains the title deeds of
another upon the false representation that he is qualified to
represent him in litigation in a court of a justice of the peace is
guilty of estafa.
For the reasons stated we are constrained to affirm the judgment
in this cause, with costs against the appellant, with the
modification that the defendant be required to indemnify Eustaqui
Montage in the sum of P50, instead of P30, as judged by the court
below. So ordered.
[G.R. No. 153845. September 11, 2003.]
EFREN SALVAN y PRESENES v. PEOPLE OF THE PHILIPPINES
This is a petition for review under Rule 45 of the Rules of Court,
which seeks to set aside the Order of the Regional Trial Court,
Branch 13 of Malolos, Bulacan, dated February 12, 2002, denying
due course to petitioner Efren Salvan’s Notice of Partial Appeal,
and the Order of the same court, dated June 6, 2002, denying
petitioner’s Motion for Reconsideration. 1 The petition also
specifically prays for the issuance of an Order directing the trial
court to give due course to the petitioner’s Notice of Partial Appeal.
Petitioner Efren Salvan, a bus driver, was charged with Reckless
Imprudence Resulting in Homicide for the death of John Barry
Abogado, in Criminal Case No. 718-M-00 before the Regional Trial
Court of Malolos, Bulacan, Branch 13. 3 At his arraignment,
petitioner pleaded guilty to the charge. The trial court then
proceeded to receive evidence to determine the civil liability of
petitioner. During the course of the hearing, petitioner and private
complainant Edna Abogado, the mother of the accused, agreed to
amicably settle the civil aspect of the case. 4
On October 23, 2001, the trial court promulgated its Decision, the
decretal portion of which provides:chanrob1es virtual 1aw library
WHEREFORE, premises considered, this Court finds the accused
GUILTY beyond reasonable doubt of the crime of simple negligence
resulting in homicide as per the recitals in the information,
punished under the second paragraph of Article 365 of the Revised
Penal Code, and hereby sentences him to suffer the penalty of six
(6) months of arresto mayor. Accused is directed to pay to the heirs
of the deceased the net sum of P100,000.00, representing the
difference between the P100,000.00 earlier paid by way of
amicable settlement herein and the sum of:
a) P50,000.00 in actual damages;
b) P50,000.00 in civil indemnity; and
c) P100,000.00 in moral damages.
SO ORDERED.
Petitioner filed a Motion for Partial Reconsideration praying for
the deletion of the additional award of damages. 6 He also filed an
Application for Probation on the same date. 7 On January 28, 2002,
the trial court denied the petitioner’s Motion for Partial
Reconsideration, but gave due course to the petitioner’s
Application for Probation.
Petitioner then filed a Notice of Partial Appeal on February 8, 2002.
On February 12, 2002, the trial court issued the first assailed Order,
the dispositive portion of which states:
Considering that the application for probation of the accused was
given due course as per the Order of this Court dated January 28,
2002, and the application for probation is deemed under the law to
be a waiver of the right to appeal, the Notice of Appeal is hereby
DENIED due course.SO ORDERED.
Petitioner filed a Motion for Reconsideration, which was denied on
June 6, 2002. Petitioner is now before us, alleging that:
THE TRIAL COURT ERRED WHEN IT DENIED GIVING DUE COURSE
TO ACCUSED’S NOTICE OF PARTIAL APPEAL EXCLUSIVELY ON
THE AWARD OF DAMAGES.
In Rule 41 of the 1964 Rules of Court, the dismissal of appeals was
governed by the following provisions:
SEC. 13. Effect of failure to file notice, bond, or record on appeal. —
Where the notice of appeal, appeal bond or record on appeal is not
filed within the period of time herein provided, the appeal shall be
dismissed.
SEC. 14. Motion to dismiss appeal. — A motion to dismiss an appeal
on any of the grounds mentioned in the preceding section, may be
filed in the Court of First Instance prior to the transmittal of the
record to the appellate court.
Rule 41, Section 13 of the 1997 Rules of Civil Procedure, provides
for the grounds to dismiss appeals, to wit:
Sec. 13. Dismissal of appeal. — Prior to the transmittal of the
original record or the record on appeal to the appellate court, the
trial court may motu proprio or on motion dismiss the appeal for
having been taken out of time or for non-payment of the docket and
other lawful fees within the reglementary period.
The above-quoted rule limits the grounds for dismissal of appeals
to very specific instances. The filing of an application for probation
is not one of them.
In the parallel case of Ortigas & Company Limited Partnership v.
Velasco, we held:
His Honor was apparently incognizant of the principle that
dismissals of appeals from the judgment of a Regional Trial Court
by the latter are authorized only in the instances specifically set
forth in Section 13, Rule 41 of the Rules of Court. The succeeding
provision, Section 14 of said Rule 41, provides that" (a) motion to
dismiss an appeal may be filed in the (Regional Trial) Court . . . prior
to the transmittal of the record to the appellate court;" and the
grounds are limited to those "mentioned in the preceding section,"
i.e., Section 13 to wit: where "the notice of appeal, appeal bond, or
record on appeal is not filed within the period of time herein
provided. . ."
These two (2) sections clearly establish "that. . . . (A) trial court may
not dismiss an appeal as frivolous, or on the ground that the case
has become moot and academic, such step devolving upon the
appellate courts. Otherwise, the way would be opened for (regional
trial) courts . . . to forestall review or reversal of their decisions by
higher courts, no matter how erroneous or improper such
decisions should be.
Although the aforementioned ruling was made in a civil case, we
see no reason why the principles enunciated therein cannot be
applied, by analogy, to a criminal case, such as the one at bar. Thus,
aside from its competence to dismiss withdrawn appeals, 15 the
Regional Trial Court’s power to dismiss an appeal is limited to the
instances provided for in Rule 41, Section 13.
SPL CASES- PROBATION LAW
Going now to the issue of probation, we recall that the law which
governs all matters relating to probation is Presidential Decree No.
968, commonly known as the Probation Law, as amended by
Presidential Decree No. 1990. The provision of the law that is
pertinent to the current controversy reads:
SEC. 4. Grant of Probation. — Subject to the provisions of this
Decree, the trial court may, after it shall have convicted and
sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the execution
of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best;
Provided, That no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the
judgment of conviction.
Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An application for probation shall be
filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.
An order granting or denying probation shall not be appealable.
Relying solely on the letter of the law, the filing of the application
for probation should be deemed a waiver of the right to appeal.
However, in the case of Budlong v. Apalisok, 16 we had occasion to
rule that the above provision of the Probation Law clearly provides
only for the suspension of the sentence imposed on the accused by
virtue of his application for probation. It has absolutely no bearing
on civil liability. This ruling was clarified in Salgado v. Court of
Appeals, 17 wherein we ruled that, although the execution of
sentence is suspended by the grant of probation, it does not follow
that the civil liability of the offender, if any, is extinguished.
This intertwining of criminal and civil liability is best understood
by analyzing the criminal act itself which, by its very nature, causes
two (2) classes of injury. The first is the social injury produced by
the criminal act which is sought to be repaired thru the imposition
of the corresponding penalty and the second is the personal injury
caused to the victim of the crime which injury is sought to be
compensated thru indemnity, which is civil in nature. 18 This has
been codified in our criminal law, where every person criminally
liable for a felony is also civilly liable. 19 Thus, Article 113 of the
Revised Penal Code provides that, except in case of extinction of
civil liability, the offender shall continue to be obliged to satisfy the
civil liability resulting from the crime committed by him,
notwithstanding the fact that he has served his sentence consisting
of deprivation of liberty or other rights, or has not been required
to serve the same by reason of amnesty, pardon, commutation of
sentence or any other reason. Furthermore, this principle has
found its way into our rules of criminal procedure, where it is
provided that an action for recovery of civil liability is deemed
instituted in the criminal action unless reserved by the offended
party. 20 And yet it must be remembered that the civil liability of
the accused is not part of the penalty for the crime committed: it is
personal to the victim.
The Probation Law prohibits a judge from entertaining or granting of four (4) months and one (1) day to one (1) year. He was likewise
an application for probation if the defendant has perfected an ordered to pay private complainant Alejo Cuyo the amount of
appeal from the judgment of conviction. The fact of conviction most ₱10,000 for attorney’s fees and litigation expenses.2 Petitioner was
certainly refers to the criminal liability of the accused, as a result of not present during the promulgation of the judgment and was
a finding made by a judge that he is guilty of the crime charged. represented by his counsel instead.
However, the appeal in this case involved only the civil aspect of
the trial court’s judgment. Hence, we see no reason why, between
On 28 August 2009, petitioner filed a Motion for
the conjoined criminal and civil aspects of a felony, a line cannot be
Reconsideration3 of the Decision, but the motion was subsequently
drawn marking where the one springs from the other. Even if by
denied4 by the MTCC on 19 October 2009.
definition civil liability ex delicto arises from the criminal act, once
its existence is established, it should be treated separately from the
criminal liability. Indeed there is even categorical statutory basis Petitioner received the Order of the MTCC denying his Motion for
to state that it subsists despite the extinguishment of the criminal Reconsideration on 23 October 2009. He subsequently filed a
liability from which it arose. This was the finding in Budlong v. Motion for Probation5 on 5 November 2009.
Apalisok and Salgado v. Court of Appeals.
On 6 January 2010, the MTCC issued an Order6 denying petitioner’s
Thus, we rule that, in an appeal from a judgment of conviction, the
latter motion on the ground that it had been filed beyond the
criminal liability and the civil liability ex delicto should be
reglementary period of fifteen (15) days as provided by Section 4
considered independently, each with its own corresponding
of Presidential Decree No. 968, as amended, or the Probation Law
effects. In the present case, the law that bars an appeal of the
of 1976.7 The reckoning date used by the MTCC in computing the
judgment of conviction, as well as its corresponding criminal
15 day period was the day of promulgation on 25 August 2009,
liability, should not bar an appeal of the civil aspect of the same
tolled by the period from the filing of the Motion for
judgment.
Reconsideration to the receipt of the Order denying the motion on
23 October 2009. Thus, the MTCC stated:
WHEREFORE, in view of the foregoing, the petition is GRANTED.
The Orders of the Regional Trial Court, Branch 13 of Malolos,
Bulacan, dated February 12, 2002, and June 6, 2002 are REVERSED It is note-worthy (sic) that four (4) days has (sic) lapsed from
and SET ASIDE. Let this case be REMANDED to the court of origin August 25, 2009 when the decision was entered in the criminal
which is ORDERED to give due course to the petitioner’s Notice of docket of this court and the time the motion for reconsideration
Partial Appeal. SO ORDERED. was filed.
Since the period to apply for probation as provided for by law in
G.R. No. 192164 October 12, 2011
(sic) only fifteen (15) days, the accused has only the remaining
ANSELMO DE LEON CUYO v. PEOPLE OF THE PHILIPPINES
eleven (11) days of the fifteen (15) days reglamentary period to
apply for probation. The 11-day period from October 23, 2009
Before us is a Petition for Review under Rule 45 assailing the
when he received the denial of his motion ended on November 3,
Order1 issued by Branch 28 of the Regional Trial Court of San
2009.
Fernando City, La Union, in Special Civil Action Case No. 0001-10.
The Motion for Probation was received by the court on November
The antecedent facts are as follows:
5, 2009 when the decision has already become Final and Executory
as of November 3, 2009.
Petitioner Anselmo Cuyo and Alejo Cuyo are estranged brothers.
Petitioner filed a complaint for illegal possession of firearms
On 7 January 2010, petitioner moved for the reconsideration8 of
against Alejo. On 20 November 2003, petitioner appeared before
the latter order, asking for a liberal interpretation of the rules with
Judge Samuel H. Gaerlan of the Regional Trial Court (RTC), Branch
regard to the computation of the period for applying for probation.
26, San Fernando City, La Union with regard to the application for
He also filed on 10 January 2010 a Supplemental Motion9 to the
a search warrant by the Criminal Investigation and Detective
Motion for Reconsideration praying for the deferment of the
Group (CIDG) for the search of the house of Alejo, and, in the course
issuance of the Warrant of Arrest or the recall of the warrant if one
of the proceedings, made untruthful statements under oath.
had already been issued.
Consequently, Alejo filed a complaint for perjury against petitioner.
The MTCC, however, denied the motion on 3 February 2010.
On 25 August 2009, Branch 1 of the Municipal Trial Court in Cities
Reference was made to Neypes v. Court of Appeals, 10 wherein the
(MTCC) in San Fernando City, La Union, found petitioner guilty
appeal period was sought to be standardized, by establishing the
beyond reasonable doubt of the offense of perjury under Article
rule that a fresh period of 15 days was allowed within which to file
183 of the Revised Penal Code and sentenced him to imprisonment
SPL CASES- PROBATION LAW
a notice of appeal, counted from the receipt of the order dismissing
a motion for new trial or a motion for reconsideration. The MTCC,
however, did not view Neypes as applicable to the case of
petitioner. It believed that Neypes applied only to Rules 40, 42, 43
and 45 appeals and not to a Rule 122 appeal, all under the Rules of
Court.
Petitioner filed a Petition11 under Rule 65 before the Regional Trial
Court (RTC) of San Fernando City, La Union alleging that the MTCC
had committed grave abuse of discretion amounting to lack or
excess of jurisdiction when it denied his Motion for Probation. He
asserted that the "fresh period rule" established in Neypes should
also be applied to criminal cases. Petitioner prayed for a liberal
construction and application of the rules. He also prayed that the
RTC stay the execution of the Decision dated 25 August 2009, and
that it recall the warrant of arrest issued pending the resolution of
the issues.
On 26 April 2010, the RTC denied the Petition and ruled that the
application period had lapsed when petitioner neither
surrendered nor filed a motion for leave to avail himself of the
remedies under the Rules of Court. In addition, the RTC ruled that
petitioner failed to implead private complainant Alejo Cuyo in
violation of Rule 65, Section 5. This rule mandates that petitioner
should join as private respondent the person interested in
sustaining the proceedings of the court.
Petitioner filed the present Rule 45 Petition for Review, assailing
the Order of the RTC. He contends that the RTC erred in computing
the 15-day period provided in the Probation Law; and in
dismissing the petition on procedural issues without determining
whether petitioner is entitled to avail himself of the benefits of
probation.
We find some merit in the petition, but only with respect to the
additional ground for dismissal of the certiorari petition cited by
the RTC – the failure to implead private complainant as a
respondent in the Petition for Certiorari filed before the RTC. We
uphold the rest of the RTC Decision, and in doing so, fully affirm its
dispositive portion.
The RTC held that petitioner failed to observe Rule 65, Sec. 5, which
states:
Respondents and costs in certain cases. – When the petition filed
relates to the acts or omissions of a judge, court, quasi-judicial
agency, tribunal, corporation, board, officer or person, the
petitioner shall join, as private respondent or respondents with
such public respondent or respondents, the person or persons
interested in sustaining the proceedings in the court; and it shall
be the duty of such private respondents to appear and defend, both
in his or their own behalf and in behalf of the public respondent or
respondents affected by the proceedings, and the costs awarded in
such proceedings in favor of the petitioner shall be against the
private respondents only, and not against the judge, court, quasi-
judicial agency, tribunal, corporation, board, officer or person
impleaded as public respondent or respondents.
Unless otherwise specifically directed by the court where the
petition is pending, the public respondents shall not appear in or
file an answer or comment to the petition or any pleading therein.
If the case is elevated to a higher court by either party, the public
respondent shall be included therein as nominal parties. However,
unless otherwise specifically directed by the court, they shall not
appear of participate in the proceedings therein.
While it may be correct to say that petitioner failed to comply with
the rule cited above, it would not be correct to dismiss the petition
based on this provision. Rule 3, Sec. 11 states that neither
misjoinder nor non-joinder of parties is a ground for the dismissal
of an action. Thus, the trial court should have ordered petitioner to
add private complainant as a respondent to the case.
Nevertheless, we agree with 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 judgement in the criminal docket and
serving him a copy thereof at his last known address or thru 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 to 1 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 (₱200), or both are imposable. Thus,
perjury is not a light felony or offense contemplated by Rule 120,
Sec. 6. It was therefore mandatory for petitioner to be present at
the promulgation of the judgment.
To recall, despite notice, 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 notice, and the failure
to appear was without justifiable cause, the accused shall lose all
the remedies available in the Rules against the judgment. One such
remedy was the Motion for Reconsideration of the judgment of the
MTCC filed by petitioner on 28 August 2009. Absent a motion for
leave to avail of the remedies against the judgment, the MTCC
should not have entertained petitioner’s Motion for
Reconsideration. Thus, petitioner had only 15 days from 25 August
2009 or until 9 September 2009 to file his Motion for Probation.
The MTCC thus committed grave abuse of discretion when it
entertained the motion instead of immediately denying it.
In People of the Philippines v. De Grano,12 we stated:
When the Decision dated April 25, 2002 was promulgated, only
Estanislao Lacaba was present.1avvphi1 Subsequently thereafter,
without surrendering and explaining the reasons for their absence,
Joven, Armando, and Domingo joined Estanislao in their Joint
Motion for Reconsideration. In blatant disregard of the Rules, the
RTC not only failed to cause the arrest of the respondents who
were at large, it also took cognizance of the joint motion.
The RTC clearly exceeded its jurisdiction when it entertained the
joint Motion for Reconsideration with respect to the respondents
who were at large. It should have considered the joint motion as a
motion for reconsideration that was solely filed by Estanislao.
Being at large, Joven and Domingo have not regained their standing
in court. Once an accused jumps bail or flees to a foreign country,
or escapes from prison or confinement, he loses his standing in
court; and unless he surrenders or submits to the jurisdiction of
the court, he is deemed to have waived any right to seek relief from
the court. (Emphasis supplied.)
Petitioner asserts that his failure to appear during the
promulgation was for a justifiable cause. He alleges that he was on
board an international vessel as a seaman at the time of the
promulgation. He further alleges that the MTCC was informed of
this fact. He insists that his absence was justified, thus exempting
him from the application of Rule 120, Sec. 6.
SPL CASES- PROBATION LAW
Petitioner, however, did not file a motion for leave to avail himself
of the remedies prior to filing his Motion for Reconsideration. The
hearing on the motion for leave would have been the proper
opportunity for the parties to allege and contest whatever cause
prevented petitioner from appearing on 25 August 2009, and
whether that cause was indeed justifiable. If granted, petitioner
would have been allowed to avail himself of other remedies under
the Rules of Court, including a motion for reconsideration.
Moreover, in his Reply13 filed on 14 October 2010, petitioner
belatedly questions the propriety of the promulgation. In so doing,
petitioner is barred by estoppel for failing to raise the issue at the
earliest possible opportunity, that is, when the case was still
pending with the MTCC.
As a final point, while we held in Yu v. Samson-Tatad14 that the rule
in Neypes is also applicable to criminal cases regarding appeals
from convictions in criminal cases under Rule 122 of the Rules of
Court, nevertheless, the doctrine is not applicable to this case,
considering that petitioner’s Motion for Probation was filed out of
time.
WHEREFORE, in view of foregoing, the Petition is DENIED. The
Order issued by the Regional Trial Court in Special Civil Action Case
No. 0001-10 is AFFIRMED. SO ORDERED.
RONALD SORIANO vs. COURT OF APPEALS G.R. No. 123936
March 4, 1999
This is a petition for certiorari of the decision of the Court of
Appeals in C.A. G.R. SP No. 35550, 1 which upheld the trial court's
orders holding petitioner in contempt and revoking his probation.
The fact of the case are as follows:
Petitioner Ronald Santiago was convicted of the crime of Reckless
Imprudence resulting to homicide, serious physical injuries and
damage to property on December 7, 1993. 2 His application for
probation was granted on March 8, 1994, and among the terms and
conditions imposed by the trial court were the following: 3
7. He shall meet his family responsibilities.
8. He shall devote himself to a specific employment and shall not
change employment without prior notice to the supervising officer;
and/or shall pursue a prescribed secular study or vocational
training.
11. He is to indemnify the heirs of the victim Isidrino Daluyong in
the amount of P98,560.00 as ordered by the Court.
On April 26, 1994, Assistant Prosecutor Benjamin A Fadera filed a
motion to cancel petitioner's probation due to his failure to satisfy
his civil liability to the heirs of the victim, and a supplemental
motion alleging petitioner's commission of another crime for
which at that time he was awaiting arraignment. The Zambales
Parole and Probation Office filed a comment recommending that
the petitioner be allowed to continue with his probation and that
he be required instead to submit a program of payment of his civil
liability.
On June 20, 1994, the trial court denied the prosecutor's motion
and directed petitioner to submit a program of payment of the civil
liability imposed upon him.
Thereafter, probation officer Nelda D. Maycong received
information that petitioners father who owned the vehicle
involved in the accident which killed Daluyong, received
P16,500.00 as insurance payment. This amount was not turned
over to the heirs of Daluyong and Da Maycong considered this a
violation of the terms and conditions of the probation. She
submitted a manifestation to the trial court praying that the
petitioner be made to explain his non-compliance with the court's
order of June 20, 1994, or that be cited for contempt for such non-
compliance. Da Maycong also asked that petitioner be made to
submit a program of payment as soon as possible. The trial court
granted his prayers in an order dated August 15, 1994. Petitioner
was once again ordered to submits his program of payment.
Petitioner instead filed a motion for reconsideration explaining
that he did not receive a copy of said order on June 23, 1994 but
failed to notify petitioner. Thus, the latter failed to comply with said
order.
On October 4, 1994, the trial court issued an order declaring
petitioner in contempt of court for his failure to comply with its
orders of June 20, 1994 and August 15, 1994. The court likewise
revoked the grant of probation to petitioner and ordered that he be
arrested to serve the sentence originally imposed upon him.
According to the trial court, among the violation committed by
petitioner as regards his probation are his failure to (1) meet his
responsibilities to his family, (2) engage in a specific employment,
and (3) cooperate with his program of supervision.
Petitioner then filed a special civil action for certiorari with the
Court of Appeals. He claimed that respondent judge committed
grave abuse of discretion amounting to lack of, or in excess of,
jurisdiction in holding petitioner in contempt and revoking his
probation. The Court of Appeals dismissed the petition, holding
that petitioner's "stubborn unwillingness" to comply with the
orders of the trial court "shows his refusal to reform himself and to
correct a wrong." 4
According to the Court of Appeals:
Where probation was approved and probationer has proven to be
unrepentant and disrespectful and even showed clear defiance to
two lawful court orders, as in the case of herein petitioner, the
court is not barred from revoking the same. 5
Petitioner's motion for reconsideration was likewise denied by the
Court of Appeals for lack of merit.
Hence, this petition for review, in which petitioner makes the
following assignment of errors. 6
1. Respondent Court of Appeals erred in failing to rule that
respondent judge committed grave abuse of discretion in finding
that there was deliberate refusal on the part of petitioner to comply
with his orders dated June 20, 1994 and August 15, 1994 and
subsequently declaring petitioner in contempt.
2. Respondent Court of Appeals erred in failing to rule that
respondent judge committed grave abuse of discretion in revoking
the probation order he earlier issued in favor of petitioner on the
ground that petitioner failed to satisfy the award of civil indemnity
for the heirs of the accident victim.
3. Respondent Court of Appeals erred in failing to rule that
respondent judge committed grave abuse of discretion in revoking
the probation order he earlier issued in favor of petitioner on the
ground that the latter violated the conditions of his probation three
times.
Petitioner asserts that he had no intention to ignore the orders of
the trial court. The court's order of June 20, 1994 was received by
his counsel who, however, did not notify petitioner. Petitioner says
that his "former counsel's irresponsible delay (in informing him of
the order) should not prejudice him." 7
He explains that his non-compliance with the order to submit a
program of payment of his civil liability is, ultimately, due to his
poor financial condition. He only relies on his parents for support.
He claims that it is impossible for him to formulate a payment
program because, in the first place, he is in no position to comply
with the same.
Petitioner avers that to require him to satisfy his civil liability in
order to continue to avail of the benefits of probation is to violate
the constitutional proscription against unequal protection of the
law. He says only moneyed probationers will be able to benefit
from probation if satisfaction of civil liability is made a condition.
Petitioner contends that his enjoyment of probation should not be
made to depend on the satisfaction of his civil liability. He invokes
the separate opinion of Justice Isagani A. Cruz in Salgado v. Court of
Appeals, 8 particularly Justice Cruz' reservation about the validity
SPL CASES- PROBATION LAW
of imposing satisfaction of civil liability as a condition for probation
such an imposition is in the nature of an amendment of the decision
of the trial court in the criminal case against him, which cannot be
allowed since the decision is already final and executory. He
further invokes the majority decision in Salgado and asserts that
"any program of payment of civil liability must take into
consideration the needs and capacity of petitioner." 9
Petitioner claims that his failure to meet his responsibilities to his
family and to engage in gainful employment is not deliberate but is
due to his poverty. He adds that his being unskilled, with a criminal
record to his name, does not exactly enhance his chances for
employment.
Finally, petitioner cites our decision in Baclayon v. Mutia: 10
. . . Conditions should be interpreted with flexibility in their
application and each case should be judged on its own merits — on
the basis of the problems, needs and capacity of the probationer.
The very liberality of the probation should not be made a tool by
trial courts to stipulate instead unrealistic terms. 11
In his comment, the Solicitor General asks for the dismissal of the
petition. The only issue to be resolved according to him is whether
or not petitioner has violated the terms and conditions of his
probation warrant its revocation. The Solicitor General argues that
petitioner has committed violations, thus justifying the trial court'
s revocation of the grant of probation. He further points out that
our ruling in Salgado is inapplicable to the case of petitioner since
what was involved in Salgado was a program of payment already
imposed upon petitioner therein. In this case, however, it is
petitioner who is being asked to submit his own program of
payment and he had not submitted any such program:
The only issue for us to resolve in this case is whether or not the
revocation of petitioner's probation is lawful and proper.
Petitioner asserts that his non-compliance with the orders of the
trial court requiring him to submit a program of payment was not
deliberate. To our mind, his refusal to comply with said orders
cannot be anything but deliberate. He had notice of both orders,
although the notice of the order of June 20, 1994 came belatedly.
He has, up to this point, refused to comply with the trial court's
directive, by questioning instead the constitutionality of the
requirement imposed and harping on his alleged poverty as the
reason for his failure to comply.
Contrary to his assertion, this requirement is not violative of the
equal protection clause of the Constitution. Note that payment of
the civil liability is not made a condition precedent to probation. If
it were, then perhaps there might be some basis to petitioner's
assertion that only moneyed convicts may avail of the benefits of
probation. In this case, however, petitioner's application for
probation had already been granted. Satisfaction of his civil
liability was not made a requirement before he could avail a
probation, but was a condition for his continued enjoyment of the
same.
The trial court could not have done away with imposing payment
of civil liability as a condition for probation, as petitioner suggests.
This is not an arbitrary imposition but one required by law. It is a
consequence of petitioner's having been convicted of a
crime, 12 and petitioner is bound to satisfy this obligation
regardless of whether or not he is placed under probation.
We fail to see why petitioner cannot comply with a simple order to
furnish the trial court with a program of payment of his civil
liability. He may, indeed, be poor, but this is precisely the reason
why the trial court gave him the chance to make his own program
of payment. Knowing his own financial condition, he is in the best
position to formulate a program of payment that fits his needs and
capacity.
Petitioner blames his former counsel's "irresponsible delay" in
informing him of the trial court's order to come up with a program
of payment for his failure to make such a program. Petitioner wants
to take exception to the rule that notice to counsel is notice to
client.
We find no reason to make an exception in this case. Petitioner's
counsel has not been shown to be grossly irresponsible as to cause
prejudice to petitioner's rights. 13 Moreover, we note that
petitioner later on discovered that such a court order was received
by his counsel. He could have endeavored to comply with the order
then. In the June 20, 1994 order, he was given 10 days from receipt
of the order within which to comply. The same period was given
him in the order of August 15, 1994. Petitioner does not claim that
he failed to receive notice of the latter order. In fact, he submitted
a motion for reconsideration of said order, but still without the
required program of payment.
No justifiable reason has been given by petitioner for ignoring
those two orders. The trial court could not be faulted for citing him
in contempt for his failure to comply with its orders. Nor did it
abuse gravely its discretion in issuing said orders. Hence, we are in
full agreement with respondent appellate court's decision as well.
Moreover, petitioner's continued refusal to submit a program of
payment, along with his prayer for the deletion of the requirement
of payment of civil liability from his probation order, creates the
impression that he wants to completely avoid paying his civil
liability. This he cannot do. He cannot escape payment of his civil
liability, with or without a program of payment.
Petitioner's reliance on Salgado is misplaced. In that case, the trial
court itself formulated the manner by which Salgado was to satisfy
his civil liability. He was able to comply for a few months. When he
started skipping his payments, his victim sought the issuance of a
writ of execution to enforce full payment of the civil liability. The
trial court granted this motion and it was sustained by the Court of
Appeals which ruled that the program of payment amounted to an
amendment of the decision of the trial court ordering payment of
civil liability but without a program of payment. Since the trial
court's decision had already become final, it can no longer be
amended by imposing a program of payment, in installments, of the
civil liability.
We held in Salgado, that the program of payment is not an
amendment of the decision of the trial court because it does not
increase or decrease the liability and the obligation to pay is to be
fulfilled during the period of probation.
Unlike in Salgado, herein petitioner was being asked to make a
program of payment. But he failed to do so. Hence, in this case,
there is yet no program of payment to speak of, because of
petitioner's stubborn refusal and delay as well as failure to abide
by the trial court's orders.
Petitioner's reliance on Baclayon is likewise misplaced. In that
case, what was being assailed as an unrealistic condition was the
trial court's requirement that petitioner therein, a teacher
convicted of Serious Oral Defamation, refrain from exercising her
profession. This condition was deemed unreasonable because
teaching was the only profession she knew and it appeared that she
excelled in teaching. No unrealistic condition similar to the one
in Baclayan has been imposed upon petitioner herein.
As regards the other violations committed by petitioner, the
question of whether or not petitioner has, indeed, violated the
terms and conditions of his probation is evidently a factual one
which had already been passed upon by both the trial court and the
Court of Appeals. Settled is the rule in this jurisdiction that findings
of fact of the trial court are entitled to great weight, more so when
they are affirmed by the Court of Appeals, 14 as in this case.
Besides, petitioner himself admits in his petition that he is
unemployed and only depends on his parents for support. He can
barely support his family. 15 Petitioner ought to be reminded of
what is incumbent on a probationer, including those requirements
that the trial court may set.
As Section 10 of the Probation Law states:
Sec. 10. Conditions of Probation. — . . .
The court may also require the probationer to:
(a) Cooperate with a program of supervision;
SPL CASES- PROBATION LAW
(b) Meet his family responsibilities;
(c) Devote himself to a specific employment and not to change said
employment without the prior written approval of the probation
officer
(e) Pursue a prescribed secular study or vocational training;
Clearly, these conditions are not whims of the trial court but are
requirements laid down by statute. They are among the conditions
that the trial court is empowered to impose and the petitioner, as
probationer, is required to follow. Only by satisfying these
conditions may the purposes of probation be fulfilled. These
include promoting the correction and rehabilitation of an offender
by providing him with individualized treatment, and providing an
opportunity for the reformation of a penitent offender which might
be less probable if he were to serve a prison sentence. 16a Failure
to comply will result in the revocation of the order granting
probation, pursuant to the Probation Law:
Sec. 11. Effectivity of Probation Order. — A probation order shall
take effect upon its issuance, at which time the court shall inform
the offender of the consequences thereof and explain that upon his
failure to comply with any of the conditions prescribed in the said
order or his commission of another offense, he shall serve the
penalty imposed for the offense under which he was placed on
probation."
Probation is not an absolute right. It is a mere privilege whose
grant rests upon the discretion of the trial court. 17 Its grant is
subject to certain terms and conditions that may be imposed by the
trial court. Having the power to grant probation, it follows that the
trial court also has the power to order its revocation in a proper
case and under appropriate circumstances.
Moreover, having admittedly violated the terms and conditions of
his probation, petitioner cannot now assail the revocation of his
probation. Regrettably, he has squandered the opportunity
granted him by the trial court to remain outside prison bars, and
must now suffer the consequences of those aforecited violations.
WHEREFORE, the petition is hereby DENIED and the assailed
decision of the Court of Appeals in C.A. G.R. SP No. 35550 is
AFFIRMED. SO ORDERED.
ARNEL COLINARES vs. PEOPLE OF THE PHILIPPINES G.R. No.
182748 December 13, 2011
This case is about a) the need, when invoking self-defense, to prove
all that it takes; b) what distinguishes frustrated homicide from
attempted homicide; and c) when an accused who appeals may still
apply for probation on remand of the case to the trial court.
The Facts and the Case prision correccional, as minimum, to six years and one day of
prision mayor, as maximum. Since the maximum probationable
imprisonment under the law was only up to six years, Arnel did not
The public prosecutor of Camarines Sur charged the accused Arnel
qualify for probation.
Colinares (Arnel) with frustrated homicide before the Regional
Trial Court (RTC) of San Jose, Camarines Sur, in Criminal Case T-
2213. 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
Complainant Rufino P. Buena (Rufino) testified that at around 7:00
imposed on him. The CA entirely affirmed the RTC decision but
in the evening on June 25, 2000, he and Jesus Paulite (Jesus) went
deleted the award for lost income in the absence of evidence to
out to buy cigarettes at a nearby store. On their way, Jesus took a
support it.3 Not satisfied, Arnel comes to this Court on petition for
leak by the roadside with Rufino waiting nearby. From nowhere,
review.
Arnel sneaked behind and struck Rufino twice on the head with a
huge stone, about 15 ½ inches in diameter. Rufino fell unconscious
as Jesus fled. In the course of its deliberation on the case, the Court required
Arnel and the Solicitor General to submit their respective positions
on whether or not, assuming Arnel committed only the lesser crime
Ananias Jallores (Ananias) testified that he was walking home
of attempted homicide with its imposable penalty of imprisonment
when he saw Rufino lying by the roadside. Ananias tried to help but
of four months of arresto mayor, as minimum, to two years and
someone struck him with something hard on the right temple,
four months of prision correccional, as maximum, he could still
knocking him out. He later learned that Arnel had hit him.
apply for probation upon remand of the case to the trial court.
Paciano Alano (Paciano) testified that he saw the whole incident
Both complied with Arnel taking the position that he should be
since he happened to be smoking outside his house. He sought the
entitled to apply for probation in case the Court metes out a new
help of a barangay tanod and they brought Rufino to the hospital.
penalty on him that makes his offense probationable. The language
and spirit of the probation law warrants such a stand. The Solicitor
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that General, on the other hand, argues that under the Probation Law
Rufino suffered two lacerated wounds on the forehead, along the no application for probation can be entertained once the accused
hairline area. The doctor testified that these injuries were serious has perfected his appeal from the judgment of conviction.
and potentially fatal but Rufino chose to go home after initial
treatment.
The Issues Presented
The defense presented Arnel and Diomedes Paulite (Diomedes).
The case essentially presents three issues:
Arnel claimed self-defense. He testified that he was on his way
home that evening when he met Rufino, Jesus, and Ananias who
were all quite drunk. Arnel asked Rufino where he supposed the 1. Whether or not Arnel acted in self-defense when he
Mayor of Tigaon was but, rather than reply, Rufino pushed him, struck Rufino on the head with a stone;
causing his fall. Jesus and Ananias then boxed Arnel several times
on the back. Rufino tried to stab Arnel but missed. The latter picked
2. Assuming he did not act in self-defense, whether or
up a stone and, defending himself, struck Rufino on the head with
not Arnel is guilty of frustrated homicide; and
it. When Ananias saw this, he charged towards Arnel and tried to
stab him with a gaff. Arnel was able to avoid the attack and hit
Ananias with the same stone. Arnel then fled and hid in his sister’s 3. Given a finding that Arnel is entitled to conviction for
house. On September 4, 2000, he voluntarily surrendered at the a lower offense and a reduced probationable penalty,
Tigaon Municipal Police Station. whether or not he may still apply for probation on
remand of the case to the trial court.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a
pre-wedding party on the night of the incident. His three The Court’s Rulings
companions were all drunk. On his way home, Diomedes saw the
three engaged in heated argument with Arnel.
One. Arnel claims that Rufino, Jesus, and Ananias attacked him first
and that he merely acted in self-defense when he hit Rufino back
On July 1, 2005 the RTC rendered judgment, finding Arnel guilty with a stone.
beyond reasonable doubt of frustrated homicide and sentenced
him to suffer imprisonment from two years and four months of
SPL CASES- PROBATION LAW
When the accused invokes self-defense, he bears the burden of
showing that he was legally justified in killing the victim or
inflicting injury to him. The accused must establish the elements of
self-defense by clear and convincing evidence. When successful,
the otherwise felonious deed would be excused, mainly predicated
on the lack of criminal intent of the accused.4
In homicide, whether consummated, frustrated, or attempted, self-
defense requires (1) that the person whom the offender killed or
injured committed unlawful aggression; (2) that the offender
employed means that is reasonably necessary to prevent or repel
the unlawful aggression; and (3) that the person defending himself
did not act with sufficient provocation.5
If the victim did not commit unlawful aggression against the
accused, the latter has nothing to prevent or repel and the other
two requisites of self-defense would have no basis for being
appreciated. Unlawful aggression contemplates an actual, sudden,
and unexpected attack or an imminent danger of such attack. A
mere threatening or intimidating attitude is not enough. The victim
must attack the accused with actual physical force or with a
weapon.6
Here, the lower courts found that Arnel failed to prove the element
of unlawful aggression. He alone testified that Jesus and Ananias
rained fist blows on him and that Rufino and Ananias tried to stab
him. No one corroborated Arnel’s testimony that it was Rufino who
started it. Arnel’s only other witness, Diomedes, merely testified
that he saw those involved having a heated argument in the middle
of the street. Arnel did not submit any medical certificate to prove
his point that he suffered injuries in the hands of Rufino and his
companions.7
In contrast, the three witnesses—Jesus, Paciano, and Ananias—
testified that Arnel was the aggressor. Although their versions
were mottled with inconsistencies, these do not detract from their
core story. The witnesses were one in what Arnel did and when and
how he did it. Compared to Arnel’s testimony, the prosecution’s
version is more believable and consistent with reality, hence
deserving credence.8
Two. But given that Arnel, the accused, was indeed the aggressor,
would he be liable for frustrated homicide when the wounds he
inflicted on Rufino, his victim, were not fatal and could not have
resulted in death as in fact it did not?
The main element of attempted or frustrated homicide is the
accused’s intent to take his victim’s life. The prosecution has to
prove this clearly and convincingly to exclude every possible doubt
regarding homicidal intent.9 And the intent to kill is often inferred
from, among other things, the means the offender used and the
nature, location, and number of wounds he inflicted on his victim.10
Here, Arnel struck Rufino on the head with a huge stone. The blow
was so forceful that it knocked Rufino out. Considering the great
size of his weapon, the impact it produced, and the location of the
wounds that Arnel inflicted on his victim, the Court is convinced
that he intended to kill him.
The Court is inclined, however, to hold Arnel guilty only of
attempted, not frustrated, homicide. In Palaganas v. People,11 we
ruled that when the accused intended to kill his victim, as shown
by his use of a deadly weapon and the wounds he inflicted, but the
victim did not die because of timely medical assistance, the crime
is frustrated murder or frustrated homicide. If the victim’s wounds
are not fatal, the crime is only attempted murder or attempted
homicide.
Thus, the prosecution must establish with certainty the nature,
extent, depth, and severity of the victim’s wounds. While Dr.
Belleza testified that "head injuries are always very serious,"12 he
could not categorically say that Rufino’s wounds in this case were
"fatal." Thus:
Taken in its entirety, there is a dearth of medical evidence on
record to support the prosecution’s claim that Rufino would have
died without timely medical intervention. Thus, the Court finds
Arnel liable only for attempted homicide and entitled to the
mitigating circumstance of voluntary surrender.
Three. Ordinarily, Arnel would no longer be entitled to apply for
probation, he having appealed from the judgment of the RTC
convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of
attempted homicide and holds that the maximum of the penalty
imposed on him should be lowered to imprisonment of four
months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new
penalty, it would be but fair to allow him the right to apply for
probation upon remand of the case to the RTC.
Some in the Court disagrees. They contend that probation is a mere
privilege granted by the state only to qualified convicted offenders.
Section 4 of the probation law (PD 968) provides: "That no
application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of
conviction."15 Since Arnel appealed his conviction for frustrated
homicide, he should be deemed permanently disqualified from
applying for probation.
But, firstly, while it is true that probation is a mere privilege, the
point is not that Arnel has the right to such privilege; he certainly
does not have. What he has is the right to apply for that privilege.
The Court finds that his maximum jail term should only be 2 years
and 4 months. If the Court allows him to apply for probation
because of the lowered penalty, it is still up to the trial judge to
decide whether or not to grant him the privilege of probation,
taking into account the full circumstances of his case.
Secondly, it is true that under the probation law the accused who
appeals "from the judgment of conviction" is disqualified from
availing himself of the benefits of probation. But, as it happens, two
judgments of conviction have been meted out to Arnel: one, a
conviction for frustrated homicide by the regional trial court, now
set aside; and, two, a conviction for attempted homicide by the
Supreme Court.
If the Court chooses to go by the dissenting opinion’s hard position,
it will apply the probation law on Arnel based on the trial court’s
annulled judgment against him. He will not be entitled to probation
because of the severe penalty that such judgment imposed on him.
More, the Supreme Court’s judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial
court’s judgment—even if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial court’s erroneous
judgment with the forfeiture of his right to apply for probation. Ang
kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs,
the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing
Arnel to apply for probation would dilute the ruling of this Court in
Francisco v. Court of Appeals16 that the probation law requires that
an accused must not have appealed his conviction before he can
avail himself of probation. But there is a huge difference between
Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found
the accused guilty of grave oral defamation and sentenced him to a
prison term of one year and one day to one year and eight months
of prision correccional, a clearly probationable penalty. Probation
was his to ask! Still, he chose to appeal, seeking an acquittal, hence
clearly waiving his right to apply for probation. When the acquittal
did not come, he wanted probation. The Court would not of course
let him. It served him right that he wanted to save his cake and eat
it too. He certainly could not have both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an
accused must not have appealed his conviction before he can avail
himself of probation. This requirement "outlaws the element of
speculation on the part of the accused—to wager on the result of
his appeal—that when his conviction is finally affirmed on appeal,
the moment of truth well-nigh at hand, and the service of his
sentence inevitable, he now applies for probation as an ‘escape
hatch’ thus rendering nugatory the appellate court’s affirmance of
his conviction."17
Here, however, Arnel did not appeal from a judgment that would
have allowed him to apply for probation. He did not have a choice
SPL CASES- PROBATION LAW
between appeal and probation. He was not in a position to say, "By
taking this appeal, I choose not to apply for probation." The stiff
penalty that the trial court imposed on him denied him that choice.
Thus, a ruling that would allow Arnel to now seek probation under
this Court’s greatly diminished penalty will not dilute the sound
ruling in Francisco. It remains that those who will appeal from
judgments of conviction, when they have the option to try for
probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness
of the penalty imposed on him. He claimed that the evidence at best
warranted his conviction only for attempted, not frustrated,
homicide, which crime called for a probationable penalty. In a way,
therefore, Arnel sought from the beginning to bring down the
penalty to the level where the law would allow him to apply for
probation.
In a real sense, the Court’s finding that Arnel was guilty, not of
frustrated homicide, but only of attempted homicide, is an original
conviction that for the first time imposes on him a probationable
penalty. Had the RTC done him right from the start, it would have
found him guilty of the correct offense and imposed on him the
right penalty of two years and four months maximum. This would
have afforded Arnel the right to apply for probation.
The Probation Law never intended to deny an accused his right to
probation through no fault of his. The underlying philosophy of
probation is one of liberality towards the accused. Such philosophy
is not served by a harsh and stringent interpretation of the
statutory provisions.18 As Justice Vicente V. Mendoza said in his
dissent in Francisco, the Probation Law must not be regarded as a
mere privilege to be given to the accused only where it clearly
appears he comes within its letter; to do so would be to disregard
the teaching in many cases that the Probation Law should be
applied in favor of the accused not because it is a criminal law but
to achieve its beneficent purpose.19
One of those who dissent from this decision points out that
allowing Arnel to apply for probation after he appealed from the
trial court’s judgment of conviction would not be consistent with
the provision of Section 2 that the probation law should be
interpreted to "provide an opportunity for the reformation of a
penitent offender." An accused like Arnel who appeals from a
judgment convicting him, it is claimed, shows no penitence.
This may be true if the trial court meted out to Arnel a correct
judgment of conviction. Here, however, it convicted Arnel of the
wrong crime, frustrated homicide, that carried a penalty in excess
of 6 years. How can the Court expect him to feel penitent over a
crime, which as the Court now finds, he did not commit? He only
committed attempted homicide with its maximum penalty of 2
years and 4 months.
Ironically, if the Court denies Arnel the right to apply for probation already attained finality. Indeed, petitioner had meanwhile applied
under the reduced penalty, it would be sending him straight behind for probation. Upon motion of the prosecution, however, the trial
bars. It would be robbing him of the chance to instead undergo court reconsidered its order and rendered an amended decision,
reformation as a penitent offender, defeating the very purpose of promulgated on 10 July 1998, concluding thusly:
the probation law.
"WHEREFORE, premises considered, judgment is hereby rendered
At any rate, what is clear is that, had the RTC done what was right finding accused Willy Tan GUILTY beyond reasonable doubt of the
and imposed on Arnel the correct penalty of two years and four crime of Bigamy and applying the Indeterminate Sentence Law, is
months maximum, he would have had the right to apply for hereby sentenced to suffer a minimum prison term of prision
probation. No one could say with certainty that he would have [correccional] TWO (2) YEARS, FOUR (4) MONTHS AND ONE (1)
availed himself of the right had the RTC done right by him. The idea DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1)
may not even have crossed his mind precisely since the penalty he DAY."1
got was not probationable.
On 13 July 1998, petitioner filed a notice of appeal with the trial
The question in this case is ultimately one of fairness. Is it fair to court and elevated the case to the Court of Appeals, contending that
deny Arnel the right to apply for probation when the new penalty -
that the Court imposes on him is, unlike the one erroneously
imposed by the trial court, subject to probation?
"THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION
INCREASING THE PENALTY AFTER THE SAME HAD ALREADY
WHEREFORE, the Court PARTIALLY GRANTS the petition, BECOME FINAL AND EXECUTORY."2
MODIFIES the Decision dated July 31, 2007 of the Court of Appeals
in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY
The Court of Appeals, in a decision, dated 18 August 2000,
beyond reasonable doubt of attempted homicide, and SENTENCES
dismissed petitioner's appeal on the ground that petitioner raised
him to suffer an indeterminate penalty from four months of arresto
a pure question of law. Citing Article VIII, Section 5(2)(e), of the
mayor, as minimum, to two years and four months of prision
Constitution, the appellate court explained that jurisdiction over
correccional, as maximum, and to pay Rufino P. Buena the amount
the case was vested exclusively in the Supreme Court and that, in
of ₱20,000.00 as moral damages, without prejudice to petitioner
accordance with Rule 122, Section 3(e), of the Rules of Criminal
applying for probation within 15 days from notice that the record
Procedure, the appeal should have been brought up by way of a
of the case has been remanded for execution to the Regional Trial
petition for review on certiorari with this Court and not by merely
Court of San Jose, Camarines Sur, in Criminal Case T-2213. SO
filing a notice of appeal before the trial court.
ORDERED.
Petitioner filed a motion for reconsideration which, on 18 May
WILLY TAN y CHUA vs. PEOPLE OF THE PHILIPPINES G.R. No.
2001, was denied by the appellate court. The petition for review
148194 April 12, 2002
on certiorari before this Court raised the following issues:
On 12 December 1996, petitioner Willy Tan was found guilty of
"I. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING
bigamy by the Regional Trial Court, Branch 75, of San Mateo, Rizal.
SECTION 2, RULE 50 ON DISMISSAL OF IMPROPER APPEAL TO
He was sentenced to suffer a prison term of prision correccional in
THE COURT OF APPEALS AS THE SAID SECTION REFERS TO AN
its medium period ranging from two (2) years, four (4) months,
APPEAL UNDER RULE 41 IN ORDINARY CIVIL ACTION BUT NOT
and one (1) day, to four (4) years and two (2) months. On 23
TO AN APPEAL IN CRIMINAL CASES WHICH IS GOVERNED BY
December 1996, petitioner applied for probation. On 8 January
RULE 122 OF THE REVISED RULES ON CRIMINAL PROCEDURE.
1997, the application was granted by the trial court but the release
order was withheld in view of the filing by the prosecution, on 21
January 1997, of a motion for modification of the penalty. The "II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE
prosecution pointed out that the penalty for bigamy under Article SUPREME COURT HAS EXCLUSIVE APPELLATE JURISDICTION ON
349 of the Revised Penal Code was prision mayor and the PURE QUESTIONS OF LAW.
impassable penalty, absent any mitigating nor aggravating
circumstance, should be the medium period of prision mayor, or
"III. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
from eight (8) years and one (1) day to ten (10) years. Thus, the
BECAUSE THE APPEAL RAISED PURE QUESTIONS OF LAW, IT IS
prosecution argued, petitioner was not eligible for probation.
WITHOUT JURISDICTION TO RESOLVE THE ISSUE RAISED IN THE
APPEAL.
The trial court denied the motion of the prosecution for having
been filed out of time since the decision sought to be modified had
SPL CASES- PROBATION LAW
"IV. THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING
THE APPEAL OUTRIGHT INSTEAD OF DECLARING THE AMENDED
DECISION VOID FOR UTTER WANT OF JURISDICTION.
"V. THE COURT OF APPEALS ERRED IN HOLDING THAT RULE 65
IS THE PROPER REMEDY TO RAISE THE ISSUE OF JURISDICTION
AND IF SO IN NOT TREATING THE APPEAL AS A SPECIAL CIVIL
ACTION FOR CERTIORARI."3
In all criminal prosecutions, the accused shall have the right to
appeal in the manner prescribed by law.4 While this right is
statutory, once it is granted by law, however, its suppression would
be a violation of due process, itself a right guaranteed by the
Constitution.5 Section 3(a), Rule 122 of the Rules of Criminal
Procedure states:
"Section 3. How appeal is taken. –
(a) The appeal to the Regional Trial Court, or to the Court of
Appeals in cases decided by the Regional Trial Court in the exercise
of its original jurisdiction, shall be taken by filing a notice of
appeal with the court which rendered the judgment or final order
appealed from and by serving a copy thereof upon the adverse
party. (Emphasis supplied).
The above rule is plain and unambiguous – the remedy of ordinary
appeal by notice of appeal, although not necessarily preclusive of
other remedies provided for by the rules, is open and available to
petitioner.
The notice of appeal was timely filed by petitioner on 13 July 1998,
three days after the questioned decision was promulgated.6 It was
a remedy that the law allowed him to avail himself of, and it threw
the whole case effectively open for review on both questions of law
and of fact whether or not raised by the parties.
Neither the Constitution nor the Rules of Criminal Procedure
exclusively vests in the Supreme Court the power to hear cases on
appeal in which only an error of law is involved.7 Indeed, the Court
of Appeals, under Rule 42 and 44 of the Rules of Civil Procedure, is
authorized to determine "errors of fact, of law, or both."8 These
rules are expressly adopted to apply to appeals in criminal
cases,9 and they do not thereby divest the Supreme Court of
its ultimate jurisdiction over such questions.
Anent the argument that petitioner should have filed a petition
for certiorari under Rule 65, it might be pointed out that this
remedy can only be resorted to when there is no appeal, or any
plain, speedy, and adequate remedy in the ordinary course of
law.10 Appeal, being a remedy still available to petitioner, a petition
for certiorari would have been premature.
In fine, petitioner had taken an appropriate legal step in filing a amendatory judgment of the trial court is SET ASIDE and its
notice of appeal with the trial court. Ordinarily, the Court should decision of 12 December 1996 is REINSTATED. No costs. SO
have the case remanded to the Court of Appeals for further ORDERED.
proceedings. The clear impingement upon petitioner's basic right
against double jeopardy,11 however, should here warrant the
DANIEL G. FAJARDO vs. COURT OF APPEALS G.R. No. 128508
exercise of the prerogative by this Court to relax the stringent
February 1, 1999
application of the rules on the matter. When the trial court
increased the penalty on petitioner for his crime of bigamy after it
had already pronounced judgment and on which basis he then, in The case is an appeal via certiorari taken by petitioner from a
fact, applied for probation, the previous verdict could only be decision of the Court of Appeals that denied due course to his
deemed to have lapsed into finality. motion for probation in Criminal Case No. 14196 of the Regional
Trial Court, Branch 31, Iloilo City, arising from his conviction of
violation of Batas Pambansa Bilang 22, for which he was sentenced
Section 7, Rule 120, of the Rules on Criminal Procedure that states:
to imprisonment of eight (8) months. We deny the petition.
"Sec. 7. Modification of judgment. – A judgment of conviction
On May 26, 1988, the Regional Trial Court, Branch 33, Iloilo City,
may, upon motion of the accused, be modified or set aside
convicted petitioner of violation of Batas Pambansa Bilang 22, and
before it becomes final or before appeal is perfected. Except
sentenced him to suffer the penalty of eight (8) months
where the death penalty is imposed, a judgment becomes final
imprisonment and to pay the costs, in Criminal Case No. 14196. He
after the lapse of the period for perfecting an appeal, or when
appealed to the Court of Appeals. 1 By decision promulgated on
the sentence has been partially or totally satisfied or served,
February 27, 1990, the Court of Appeals affirmed the conviction.
or when the accused has waived in writing his right to appeal,
On August 20, 1990, the Supreme Court denied a petition for
or has applied for probation"-
review on certiorari of the conviction. 2
implements a substantive provision of the Probation Law which
Upon the remand of the record to the lower court, on June 2, 1995,
enunciates that the mere filing of an application for probation
petitioner filed a motion for probation contending that he was
forecloses the right to appeal.
eligible for probation because at the time he committed the offense
in 1981, an accused who had appealed his conviction was still
"SEC. 4. Grant of Probation. – Subject to the provisions of this qualified to apply for probation and that the law that barred an
Decree, the trial court may, after it shall have convicted and application for probation of an accused who had interposed an
sentenced a defendant, and upon application by said defendant appeal was ex post facto in its application, and, hence, not
within the period for perfecting an appeal, suspend the execution applicable to him.
of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem
On January 5, 1996, the trial court denied petitioner's motion for
best: Provided, That no application for probation shall be
probation. On July 29, 1996, petitioner filed with the Court of
entertained or granted if the defendant has perfected the appeal
Appeals a petition for certiorari to annul the lower court's denial of
from the judgment or conviction.
his application for probation. 3 On November 12, 1996, the Court of
Appeals denied due course to the petition. 4 Hence, this appeal. 5
"Probation may be granted whether the sentence imposes a term
of imprisonment or a fine only. An application for probation shall
At issue in this case is whether petitioner could qualify to apply for
be filed with the trial court. The filing of the application shall be
probation under Presidential Decree No. 968 since he had
deemed a waiver of the right to appeal.
appealed from his conviction in 1988, after Presidential Decree No.
1990 amending Presidential Decree No. 968, became effective in
"An order granting or denying probation shall not be appealable. 1986, providing that "no application for probation shall be
(As amended by PD 1257, and by PD 1990, Oct. 5, 1985.)"12 entertained or granted if the defendant has perfected the appeal
from the judgment of conviction." 6 Petitioner maintains the view
that Presidential Decree No. 1990, issued on October 5, 1985, is
Such a waiver amounts to a voluntary compliance with the decision
null and void on the ground that at that time President Ferdinand
and writes finis to the jurisdiction of the trial court over the
E. Marcos could no longer exercise legislative powers as the
judgment.13 There is no principle better settled, or of more
Batasan Pambansa was functioning and exercising sole legislative
universal application, than that no court can reverse or annul,
powers.
reconsider or amend, its own final decree or judgment. 14 Any
attempt by the court to thereafter alter, amend or modify the same,
except in respect to correct clerical errors, would be unwarranted.
WHEREFORE, the petition is given due course. The assailed
SPL CASES- PROBATION LAW
The contention is without merit. At that time, President Marcos
was vested with legislative powers concurrently with the Batasan
Pambansa. 7

Consequently, Presidential Decree No. 1990, is valid. 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." 8 It
is not ex post facto in its application. The law applies only to
accused convicted after its effectivity. 9 An ex post facto law is one
that punishes an act as a crime which was innocent at the time of
its commission. 10 Presidential Decree No. 1990, like the Probation
Law that it amends, is not penal in character. 11 It may not be
considered as an ex post facto law. 12

At the time of the commission of the offense charged—violation of

Batas Pambansa Bilang 22—in 1981, 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, petitioner no longer had the option to
appeal and still apply for probation if unsuccessful in the
appeal. 13 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 14 submitted a

manifestation positing the view that petitioner's application for
probation may still be considered because when 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. 15 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, 16 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 petitioner

has raised questioning the constitutionality and wisdom of
Presidential Decree No. 1990, amending the probation law.
WHEREFORE, the Court DENIES the petition for review
on certiorari of the decision of the Court of Appeals in CA-G.R. SP
No. 41447. Costs against petitioner. SO ORDERED.

SPL CASES- PROBATION LAW