[G.R. No. 134298. August 26, 1999.

RAMON C. TAN, petitioner, vs. PEOPLE OF THE

PHILIPPINES, respondent.

PARDO, J  : p

The case before the Court is an appeal via certiorari from a decision of the

Court of Appeals * affirming that of the Regional Trial Court of Manila, Branch
19, ** convicting petitioner of the crime of fencing. 
cdtai

Complainant Rosita Lim is the proprietor of Bueno Metal Industries,

located at 301 Jose Abad Santos St., Tondo, Manila, engaged in the business of
manufacturing propellers or spare parts for boats. Manuelito Mendez was one of
the employees working for her. Sometime in February 1991, Manuelito Mendez
left the employ of the company. Complainant Lim noticed that some of the
welding rods, propellers and boat spare parts, such as bronze and stainless
propellers and brass screws were missing. She conducted an inventory and
discovered that propellers and stocks valued at P48,000.00, more or less, were
missing. Complainant Rosita Lim informed Victor Sy, uncle of Manuelito Mendez,
of the loss. Subsequently, Manuelito Mendez was arrested in the Visayas and he
admitted that he and his companion Gaudencio Dayop stole from the
complainant's warehouse some boat spare parts such as bronze and stainless
propellers and brass screws. Manuelito Mendez asked for complainant's
forgiveness. He pointed to petitioner Ramon C. Tan as the one who bought the
stolen items and who paid the amount of P13,000.00, in cash to Mendez and
Dayop, and they split the amount with one another. Complainant did not file a
case against Manuelito Mendez and Gaudencio Dayop.
On relation of complainant Lim, an Assistant City Prosecutor of Manila filed
with the Regional Trial Court, Manila, Branch 19, an information against
petitioner charging him with violation of Presidential Decree No. 1612 (Anti-
Fencing Law) committed as follows:
"That on or about the last week of February 1991, in the City of
Manila, Philippines, the said accused, did then and there wilfully,
unlawfully and feloniously knowingly receive, keep, acquire and possess
several spare parts and items for fishing boats all valued at P48,130.00
belonging to Rosita Lim, which he knew or should have known to have
been derived from the proceeds of the crime of theft.
Contrary to law."
Upon arraignment on November 23, 1992, petitioner Ramon C. Tan
pleaded not guilty to the crime charged and waived pre-trial. To prove the
accusation, the prosecution presented the testimonies of complainant Rosita Lim,
Victor Sy and the confessed thief, Manuelito Mendez.
On the other hand, the defense presented Rosita Lim and Manuelito
Mendez as hostile witnesses and petitioner himself. The testimonies of the
witnesses were summarized by the trial court in its decision, as follows:
"ROSITA LIM stated that she is the owner of Bueno Metal
Industries, engaged in the business of manufacturing propellers,
bushings, welding rods, among others (Exhibits A, A-1, and B). That
sometime in February 1991, after one of her employees left the
company, she discovered that some of the manufactured spare parts
were missing, so that on February 19, 1991, an inventory was conducted
and it was found that some welding rods and propellers, among others,
worth P48,000.00 were missing. Thereafter, she went to Victor Sy, the
person who recommended Mr. Mendez to her. Subsequently, Mr.
Mendez was arrested in the Visayas, and upon arrival in Manila,
admitted to his having stolen the missing spare parts sold then to Ramon
Tan. She then talked to Mr. Tan, who denied having bought the same.  Cdpr

When presented on rebuttal, she stated that some of their stocks

were bought under the name of Asia Pacific, the guarantor of their
Industrial Welding Corporation, and stated further that whether the
stocks are bought under the name of the said corporation or under the
name of William Tan, her husband, all of these items were actually
delivered to the store at 3012-3014 Jose Abad Santos Street and all paid
by her husband.
That for about one (1) year, there existed a business relationship
between her husband and Mr. Tan. Mr. Tan used to buy from them
stocks of propellers while they likewise bought from the former brass
woods, and that there is no reason whatsoever why she has to frame up
Mr. Tan.
MANUELITO MENDEZ stated that he worked as helper at Bueno
Metal Industries from November 1990 up to February 1991. That
sometime in the third week of February 1991, together with Gaudencio
Dayop, his co-employee, they took from the warehouse of Rosita Lim
some boat spare parts, such as bronze and stainless propellers, brass
screws, etc. They delivered said stolen items to Ramon Tan, who paid
for them in cash in the amount of P13,000.00. After taking his share
(one-half (1/2) of the amount), he went home directly to the province.
When he received a letter from his uncle, Victor Sy, he decided to return
to Manila. He was then accompanied by his uncle to see Mrs. Lim, from
whom he begged for forgiveness on April 8, 1991. On April 12, 1991, he
executed an affidavit prepared by a certain Perlas, a CIS personnel,
subscribed to before a Notary Public (Exhibits C and C-1).
 VICTORY [sic] SY stated that he knows both Manuelito Mendez
and Mrs. Rosita Lim, the former being the nephew of his wife while the
latter is his auntie. That sometime in February 1991, his auntie called up
and informed him about the spare parts stolen from the warehouse by
Manuelito Mendez. So that he sent his son to Cebu and requested his
kumpadre, a police officer of Sta. Catalina, Negros Occidental, to arrest
and bring Mendez back to Manila. When Mr. Mendez was brought to
Manila, together with Supt. Perlas of the WPDC, they fetched Mr.
Mendez from the pier after which they proceeded to the house of his
auntie. Mr. Mendez admitted to him having stolen the missing items and
sold to Mr. Ramon Tan in Sta. Cruz, Manila. Again, he brought Mr.
Mendez to Sta. Cruz where he pointed to Mr. Tan as the buyer, but
when confronted, Mr. Tan denied the same.
ROSITA LIM, when called to testify as a hostile witness, narrated
that she owns Bueno Metal Industries located at 301 Jose Abad Santos
Street, Tondo, Manila. That two (2) days after Manuelito Mendez and
Gaudencio Dayop left, her husband, William Tan, conducted an
inventory and discovered that some of the spare parts worth P48,000.00
were missing. Some of the missing items were under the name of Asia
Pacific and William Tan. LLpr

MANUELITO MENDEZ, likewise, when called to testify as a

hostile witness, stated that he received a subpoena in the Visayas from
the wife of Victor Sy, accompanied by a policeman of Buliloan, Cebu on
April 8, 1991. That he consented to come to Manila to ask forgiveness
from Rosita Lim. That in connection with this case, he executed an
affidavit on April 12, 1991, prepared by a certain Atty. Perlas, a CIS
personnel, and the contents thereof were explained to him by Rosita Lim
before he signed the same before Atty. Jose Tayo, a Notary Public, at
Magnolia House, Carriedo, Manila (Exhibits C and C-1).
That usually, it was the secretary of Mr. Tan who accepted the
items delivered to Ramon Hardware. Further, he stated that the stolen
items from the warehouse were placed in a sack and he talked to Mr.
Tan first over the phone before he delivered the spare parts. It was Mr.
Tan himself who accepted the stolen items in the morning at about 7:00
to 8:00 o'clock and paid P13,000.00 for them.
RAMON TAN, the accused, in exculpation, stated that he is a
businessman engaged in selling hardware (marine spare parts) at 944
Espeleta Street, Sta. Cruz, Manila.
He denied having bought the stolen spare parts worth P48,000.00
for he never talked nor met Manuelito Mendez, the confessed thief. That
further the two (2) receipts presented by Mrs. Lim are not under her
name and the other two (2) are under the name of William Tan, the
husband, all in all amounting to P18,000.00. Besides, the incident was
not reported to the police (Exhibits 1 to 1-g).
 He likewise denied having talked to Manuelito Mendez over the
phone on the day of the delivery of the stolen items and could not have
accepted the said items personally for everytime (sic) goods are
delivered to his store, the same are being accepted by his staff. It is not
possible for him to be at his office at about 7:00 to 8:00 o'clock in the
morning, because he usually reported to his office at 9:00 o'clock. In
connection with this case, he executed a counter-affidavit (Exhibits 2 and
2-a). 1
On August 5, 1996, the trial court rendered decision, the dispositive portion
of which reads:
"WHEREFORE, premises considered, the accused RAMON C.
TAN is hereby found guilty beyond reasonable doubt of violating
the Anti-Fencing Law of 1979, otherwise known as Presidential Decree
No. 1612, and sentences him to suffer the penalty of imprisonment of
SIX (6) YEARS and ONE (1) DAY to TEN (10) YEARS of prision
mayor and to indemnify Rosita Lim the value of the stolen merchandise
purchased by him in the sum of P18,000.00.
"Costs against the accused.
"SO ORDERED.  cdasia

"Manila, Philippines, August 5, 1996.

"(s/t) ZENAIDA R. DAGUNA
"Judge"
Petitioner appealed to the Court of Appeals.
After due proceedings, on January 29, 1998, the Court of Appeals
rendered decision finding no error in the judgment appealed from, and affirming
the same in toto.
In due time, petitioner filed with the Court of Appeals a motion for
reconsideration; however, on June 16, 1998, the Court of Appeals denied the
motion.
Hence, this petition.
The issue raised is whether or not the prosecution has successfully
established the elements of fencing as against petitioner. 2
We resolve the issue in favor of petitioner.
"Fencing, as defined in Section 2 of P.D. No. 1612 is 'the act of any person
who, with intent to gain for himself or for another, shall buy, receive, possess,
keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner
deal in any article, item, object or anything of value which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or
theft.'" 3
"Robbery is the taking of personal property belonging to another, with
intent to gain, by means of violence against or intimidation of any person, or
using force upon things." 4
The crime of theft is committed if the taking is without violence against or
intimidation of persons nor force upon things. 5
"The law on fencing does not require the accused to have participated in
the criminal design to commit, or to have been in any wise involved in the
commission of, the crime of robbery or theft." 6
Before the enactment of P.D. No. 1612 in 1979, the fence could only be
prosecuted as an accessory after the fact of robbery or theft, as the term is
defined in Article 19 of the Revised Penal Code, but the penalty was light as it
was two (2) degrees lower than that prescribed for the principal. 7
P.D. No. 1612 was enacted to "impose heavy penalties on persons who
profit by the effects of the crimes of robbery and theft." Evidently, the accessory
in the crimes of robbery and theft could be prosecuted as such under the
Revised Penal Code or under P.D. No. 1612. However, in the latter case, the
accused ceases to be a mere accessory but becomes a principal in the crime of
fencing. Otherwise stated, the crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct offenses. 8 The State may thus
choose to prosecute him either under the Revised Penal Code or P.D. No. 1612,
although the preference for the latter would seem inevitable considering that
fencing is malum prohibitum, and P.D. No. 1612 creates a presumption of
fencing 9 and prescribes a higher penalty based on the value of the property. 10
In Dizon-Pamintuan vs. People of the Philippines, we set out the essential
elements of the crime of fencing as follows:
"1. A crime of robbery or theft has been committed;
"2. The accused, who is not a principal or accomplice in the commission
of the crime of robbery or theft, buys, receives, possesses, keeps,
acquires, conceals, sells or disposes, or buys and sells, or in any
manner deals in any article, item, object or anything of value,
which has been derived from the proceeds of the said crime;
"3. The accused knows or should have known that the said article, item,
object or anything of value has been derived from the proceeds of
the crime of robbery or theft; and
"4. There is on the part of the accused, intent to gain for himself or for
another." 11
 Consequently, "the prosecution must prove the guilt of the accused by
establishing the existence of all the elements of the crime charged." 12
Short of evidence establishing beyond reasonable doubt the existence of
the essential elements of fencing, there can be no conviction for such
offense. 13 "It is an ancient principle of our penal system that no one shall be
found guilty of crime except upon proof beyond reasonable doubt (Perez vs.
Sandiganbayan, 180 SCRA 9)." 14
In this case, what was the evidence of the commission of theft
independently of fencing?  cdasia

Complainant Rosita Lim testified that she lost certain items and Manuelito
Mendez confessed that he stole those items and sold them to the accused.
However, Rosita Lim never reported the theft or even loss to the police. She
admitted that after Manuelito Mendez, her former employee, confessed to the
unlawful taking of the items, she forgave him, and did not prosecute him. Theft is
a public crime. It can be prosecuted de oficio, or even without a private
complainant, but it cannot be without a victim. As complainant Rosita Lim
reported no loss, we cannot hold for certain that there was committed a crime of
theft. Thus, the first element of the crime of fencing is absent, that is, a crime of
robbery or theft has been committed.
There was no sufficient proof of the unlawful taking of another's property.
True, witness Mendez admitted in an extra-judicial confession that he sold the
boat parts he had pilfered from complainant to petitioner. However, an admission
or confession acknowledging guilt of an offense may be given in evidence only
against the person admitting or confessing. 15 Even on this, if given extra-
judicially, the confessant must have the assistance of counsel; otherwise, the
admission would be inadmissible in evidence against the person so
admitting. 16 Here, the extra-judicial confession of witness Mendez was not given
with the assistance of counsel, hence, inadmissible against the witness. Neither
may such extra-judicial confession be considered evidence against
accused. 17 There must be corroboration by evidence of corpus delicti to sustain
a finding of guilt. 18 Corpus delicti means the "body or substance of the crime,
and, in its primary sense, refers to the fact that the crime has been actually
committed." 19 The "essential elements of theft are (1) the taking of personal
property; (2) the property belongs to another; (3) the taking away was done with
intent of gain; (4) the taking away was done without the consent of the owner;
and (5) the taking away is accomplished without violence or intimidation against
persons or force upon things (U.S. vs. De Vera, 43 Phil. 1000)." 20 In
theft, corpus delicti has two elements, namely: (1) that the property was lost by
the owner, and (2) that it was lost by felonious taking. 21 In this case, the theft
was not proved because complainant Rosita Lim did not complain to the public
authorities of the felonious taking of her property. She sought out her former
employee Manuelito Mendez, who confessed that he stole certain articles from
the warehouse of the complainant and sold them to petitioner. Such confession is
insufficient to convict, without evidence of corpus delicti. 22
What is more, there was no showing at all that the accused knew or should
have known that the very stolen articles were the ones sold to him. "One is
deemed to know a particular fact if he has the cognizance, consciousness or
awareness thereof, or is aware of the existence of something, or has the
acquaintance with facts, or if he has something within the mind's grasp with
certitude and clarity. When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person is aware of a
high probability of its existence unless he actually believes that it does not exist.
On the other hand, the words "should know" denote the fact that a person of
reasonable prudence and intelligence would ascertain the fact in performance of
his duty to another or would govern his conduct upon assumption that such fact
exists. Knowledge refers to a mental state of awareness about a fact. Since the
court cannot penetrate the mind of an accused and state with certainty what is
contained therein, it must determine such knowledge with care from the overt
acts of that person. And given two equally plausible states of cognition or mental
awareness, the court should choose the one which sustains the constitutional
presumption of innocence." 23
Without petitioner knowing that he acquired stolen articles, he can not be
guilty of "fencing". 24
Consequently, the prosecution has failed to establish the essential
elements of fencing, and thus petitioner is entitled to an acquittal. 
prcd

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of

the Court of Appeals in CA-G.R. CR No. 20059 and hereby ACQUITS petitioner
of the offense charged in Criminal Case No. 92-108222 of the Regional Trial
Court, Manila.
Costs de oficio.
SO ORDERED.
|||  (Tan v. People, G.R. No. 134298, [August 26, 1999], 372 PHIL 93-106)

[G.R. No. 189644. July 2, 2014.]

 NEIL E. SUYAN, petitioner, vs. PEOPLE OF THE PHILIPPINES
AND THE CHIEF PROBATION AND PAROLE OFFICER,
DAGUPAN CITY, respondents.

RESOLUTION

SERENO, C.J  : p

Before this Court is an appeal from the Decision 1 of the Court of Appeals
(CA) dated 27 March 2009, which affirmed the Orders dated 31 March
2006 2 and 26 June 2006 3 of the Regional Trial Court (RTC) of Dagupan City.
The RTC found that Neil E. Suyan (petitioner) had violated the conditions of his
probation and thus, ordered that his probation be revoked. The instant petition
likewise assails the Resolution dated 9 September 2009, 4 which denied
petitioner's Motion for Reconsideration of the aforementioned Decision dated 27
March 2009.
The facts as found by the CA are summarized as follows:
On 27 October 1995, an Information was filed against petitioner, charging
him with violation of Section 16, Article III of Republic Act (R.A.) No.
6425. 5 During arraignment, he pleaded guilty to the charge. The RTC thereafter
proceeded with trial.
On 22 November 1995, petitioner was convicted of the crime, for which he
was sentenced to suffer the penalty of six (6) years of prision correccional and to
pay the costs. On even date, he filed his application for probation.
On 16 February 1996, the RTC issued a Probation Order covering a period
of six (6) years. 6
While on probation, petitioner was arrested on two occasions, more
specifically on 2 September and 20 October 1999 7 for violating Section 16,
Article III of R.A. No. 6425. Two separate Informations were filed against him,
both of which were filed with the RTC of Dagupan City. One of these cases was
docketed as Criminal Case No. 99-03073-D before Branch 43 (Branch 43 case),
and the other case as Criminal Case No. 99-03129-D before Branch 41.
On 1 December 1999, Atty. Simplicio A. Navarro, Jr. (Atty. Navarro), then
the Chief Probation and Parole Officer of Dagupan City, filed a Motion to Revoke
Probation (Motion to Revoke). 8 Atty. Navarro alleged that petitioner has been
apprehended twice for drug possession while on probation. The former further
alleged that petitioner was considered a recidivist, whose commission of other
offenses while on probation was a serious violation of the terms thereof. Atty.
Navarro also pointed out that petitioner was no longer in a position to comply with
the conditions of the latter's probation, in view of his incarceration. 9 
STIHaE

On 15 December 1999, the RTC issued an order revoking the probation of

petitioner and directing him to serve the sentence imposed upon him. 10 It
denied 11 his Motion for Reconsideration. 12
Aggrieved, on 6 April 2000 petitioner filed a Rule 65 Petition 13 with the CA
(first CA case), 14 wherein he assailed the revocation of his probation. He argued
that he was denied due process as he was not furnished with a copy of the
Motion to Revoke; and when the motion was heard, he was not represented by
his counsel of record. 15
On 2 January 2006, the CA in its Decision, 16 granted the Rule 65 Petition
by annulling and set aside RTC's revocation of petitioner's probation. The CA
ruled that the trial court had not complied with the Probation Law and the
procedural requisites for the revocation of probation under the Revised Rules on
Probation Methods and Procedures, enumerated as follows: 17
1. No fact-finding investigation of the alleged violations was
conducted by the Probation Officer.
2. The Probation Office should have reported to respondent court
the result of said investigation, if any, upon its completion.
3. There was no Violation Report under P.A. Form No. 8, the
contents of which are enumerated under Section 38 of
the Revised Rules on Probation Methods and Procedures.
4. No warrant of arrest was issued by respondent court after
considering the nature and seriousness of the alleged
violations based on the report, if any. 
CDaTAI

5. The petitioner should have been brought to respondent court for

a hearing of the violations charged, during which petitioner
— with the right to counsel — should have been informed of
the violations charged and allowed to adduce evidence in his
favor.
The CA ordered the remand of the case to the RTC for further
proceedings, for the purpose of affording petitioner his right to due process
pursuant to Presidential Decree (PD) No. 968, and the Revised Rules on
Probation Methods and Procedures.
In compliance with the CA Decision, the RTC conducted a hearing on the
Motion to Revoke. 18 On 17 February 2006, a Violation Report dated 13 February
2006 19 was filed by the Dagupan City Parole and Probation Office
recommending the revocation of probation. 20 The Violation Report provides in
part:
D. CASE SUMMARY
At the outset of his probation period, probationer showed
manifested negative attitude by incurring absences and not attending
rehabilitation activities despite constant follow-up by his supervising
officers. He continued with his illegal drug activities despite counselling
and warning from this Office.
Obviously, probationer has failed to recognize the value of
freedom and second chance accorded him by the Honorable Court, his
conduct and attitude bespeaks of his deviant character, hence he is
unworthy to continuously enjoy the privilege of probation.
On 22 March 2006, the prosecution submitted its Formal Offer of
Evidence. A Certification dated 23 January 2006 (Certification), 21 issued by
Manuel Z. de Guzman, was offered as evidence to prove that petitioner had been
convicted in the Branch 43 case (one of the two cases subsequently filed against
him, as stated earlier); and that he had served his sentence from 30 September
2000 until his release, by reason of the expiration of his maximum sentence on 8
September 2003. Thereafter, petitioner filed his Comment on the Formal Offer
without disputing the Certification. 22 
cTCADI

On 31 March 2006, the RTC issued an Order 23 revoking the probation. It

ruled that it had granted petitioner due process by affording him the full
opportunity to contest the Motion to Revoke; but that instead of rebutting the
Violation Report, he merely questioned the absence of a violation report when his
probation was first revoked. 24 The RTC further held that there was positive
testimony and documentary evidence showing that petitioner had indeed violated
the conditions of his probation. He never rebutted the fact of his commission of
another offense and conviction therefor while on probation. 25 He filed a Motion
for Reconsideration, 26 but it was denied. 27
Aggrieved, petitioner again filed an appeal with the CA. 28 This time, he
alleged that he had been deprived of his constitutional right to due process when
his probation was ordered revoked. 29 He further alleged that he had not been
given ample opportunity to refute the alleged violations committed by him while
on probation. The probation officer did not conduct a fact-finding investigation of
the alleged violations, and, consequently, petitioner was not furnished any
results. After considering the nature and seriousness of the alleged violations,
the RTC did not issue any warrant for his arrest, as he had not been afforded an
opportunity to adduce evidence in his favor with the assistance of his counsel. 30
With regard to the specific grounds for revocation, petitioner claimed that
the evidence adduced against him did not refer to the grounds cited in the Motion
to Revoke, but instead, the evidence referred to alleged violations of Condition
Nos. 3, 9 and 10 of the Probation Order.
The CA denied his appeal. With regard to the procedural issues discussed
in the assailed Decision, it ruled that petitioner was afforded due process. A full-
blown trial was conducted precisely to allow him to refute the allegations made in
the Motion to Revoke. It held further that petitioner wasted this opportunity when,
instead of rebutting the allegations mentioned in the Violation Report, he merely
questioned the absence of such a report when his probation was first revoked. It
added that the procedural infirmities in the Motion to Revoke were cured when
the RTC conducted a hearing in accordance with the directive laid down in the
First CA Case.
With regard to the substantive issue of revocation, the CA ruled that, for
having been apprehended twice for the commission of two offenses similar in
nature, petitioner violated one of the conditions prescribed in the Probation
Order. He even admitted to having served out his sentence for those offenses.
Aggrieved yet again, petitioner filed an appeal with this Court. On
procedural grounds, he alleges that there was no fact-finding investigation of the
alleged violations conducted by the probation officer, and thus no results were
furnished him. Likewise, no warrant of arrest was issued by the RTC. Neither
was he afforded any opportunity to adduce evidence in his favor with the
assistance of counsel.
On substantive grounds, petitioner alleges that he already showed
repentance after his conviction. In his first case, he readily admitted his
accountability by pleading guilty to the charge. Thus, he was convicted and he
subsequently applied for probation. He further alleges that, of the two cases filed
against him, one was ordered dismissed; he has already served his sentence for
the other. Since then, no derogatory information has been received either by the
probation office or the trial court. Petitioner points out that he has already
reformed his ways and is thus entitled to the grace of law. He contends that the
CA should have ordered him to resume his probation pursuant to the positivist
theory adopted in our criminal justice system. HScDIC

ISSUE
The sole issue to be resolved in the instant case is whether the probation
was validly revoked.
THE COURT'S RULING
We rule that the probation of petitioner was validly revoked.
On the procedural grounds, we do not subscribe to his contention that his
right to due process was violated after the RTC had already conducted a full-
blown trial on the Motion to Revoke, in compliance with the directive of the CA.
Based on record, he had ample opportunity to refute the allegations contained in
the Violation Report.
The essence of due process is that a party is afforded a reasonable
opportunity to be heard in support of his case; what the law abhors and prohibits
is the absolute absence of the opportunity to be heard. 31 When the party seeking
due process was in fact given several opportunities to be heard and to air his
side, but it was by his own fault or choice that he squandered these chances,
then his cry for due process must fail. 32
We adopt the ruling of the CA in that petitioner squandered his own
opportunity when, instead of rebutting the allegations mentioned in the Violation
Report, he merely questioned the absence of any such report when his probation
was first revoked.
On substantive grounds, we believe that there was sufficient justification
for the revocation of his probation.
Petitioner does not deny the fact that he has been convicted, and that he
has served out his sentence for another offense while on probation.
Consequently, his commission of another offense is a direct violation of Condition
No. 9 of his Probation Order, 33 and the effects are clearly outlined in Section 11
of the Probation Law.
Section 11 of the Probation Law provides that the commission of another
offense shall render the probation order ineffective. Section 11 states:
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. (Emphasis
supplied)
Based on the foregoing, the CA was correct in revoking the probation of
petitioner and ordering him to serve the penalty for the offense for which he was
placed on probation.
As probation is a mere discretionary grant, petitioner was bound to
observe full obedience to the terms and conditions pertaining to the probation
order or run the risk of revocation of this privilege. 34 Regrettably, petitioner
wasted the opportunity granted him by the RTC to remain outside prison bars,
and must now suffer the consequences of his violation. 35 The Court's discretion
to grant probation is to be exercised primarily for the benefit of organized society
and only incidentally for the benefit of the accused. 36 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. 37
WHEREFORE, premises considered, the Petition is DENIED. The Court of
Appeals Decision dated 27 March 2009 and Resolution dated 9 September 2009
in CA-G.R. SP No. 95426 are both AFFIRMED.
SO ORDERED.
|||  (Suyan v. People, G.R. No. 189644, [July 2, 2014], 738 PHIL 233-243)

[G.R. No. 168550. August 10, 2006.]

URBANO M. MORENO, petitioner, vs. COMMISSION ON

ELECTIONS and NORMA L. MEJES, respondents.

DECISION

TINGA, J  : p

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails

the Resolution 2 of the Commission on Elections (Comelec) en banc dated June
1, 2005, affirming the Resolution 3 of the Comelec First Division dated November
15, 2002 which, in turn, disqualified him from running for the elective office of
Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.
The following are the undisputed facts:
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running
for Punong Barangay on the ground that the latter was convicted by final
judgment of the crime of Arbitrary Detention and was sentenced to suffer
imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4)
Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August
27, 1998.
Moreno filed an answer averring that the petition states no cause of action
because he was already granted probation. Allegedly, following the case
of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonment, as well as
the accessory penalties, was thereby suspended. Moreno also argued that under
Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the
probation shall operate to restore to him all civil rights lost or suspended as a
result of his conviction and to fully discharge his liability for any fine imposed. The
order of the trial court dated December 18, 2000 allegedly terminated his
probation and restored to him all the civil rights he lost as a result of his
conviction, including the right to vote and be voted for in the July 15, 2002
elections.
The case was forwarded to the Office of the Provincial Election Supervisor
of Samar for preliminary hearing. After due proceedings, the Investigating Officer
recommended that Moreno be disqualified from running for Punong Barangay.
The Comelec First Division adopted this recommendation. On motion for
reconsideration filed with the Comelec en banc, the Resolution of the First
Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local
Government Code provides that those sentenced by final judgment for an
offense involving moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving sentence, are
disqualified from running for any elective local position. 5 Since Moreno was
released from probation on December 20, 2000, disqualification shall commence
on this date and end two (2) years thence. The grant of probation to Moreno
merely suspended the execution of his sentence but did not affect his
disqualification from running for an elective local office. 
EIAScH

Further, the Comelec en banc held that the provisions of the Local

Government Code take precedence over the case of Baclayon v. Mutia cited by
Moreno and the Probation Law because it is a much later enactment and a
special law setting forth the qualifications and disqualifications of elective local
officials.
In this petition, Moreno argues that the disqualification under the Local
Government Code applies only to those who have served their sentence and not
to probationers because the latter do not serve the adjudged sentence.
The Probation Law should allegedly be read as an exception to the Local
Government Code because it is a special law which applies only to probationers.
Further, even assuming that he is disqualified, his subsequent election as
Punong Barangay allegedly constitutes an implied pardon of his previous
misconduct.
In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the
Office of the Solicitor General argues that this Court in Dela Torre v.
Comelec 7 definitively settled a similar controversy by ruling that conviction for an
offense involving moral turpitude stands even if the candidate was granted
probation. The disqualification under Sec. 40(a) of the Local Government
Code subsists and remains totally unaffected notwithstanding the grant of
probation.
 Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his
arguments and pointing out material differences between his case and Dela
Torre v. Comelec which allegedly warrant a conclusion favorable to him.
According to Moreno, Dela Torre v. Comelec involves a conviction for violation of
the Anti-Fencing Law, an offense involving moral turpitude covered by the first
part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in
that case, applied for probation nearly four (4) years after his conviction and only
after appealing his conviction, such that he could not have been eligible for
probation under the law.
In contrast, Moreno alleges that he applied for and was granted probation
within the period specified therefor. He never served a day of his sentence as a
result. Hence, the disqualification under Sec. 40(a) of the Local Government
Code does not apply to him.
The resolution of the present controversy depends on the application of the
phrase "within two (2) years after serving sentence" found in Sec. 40(a) of the
Local Government Code, which reads:
Sec. 40. Disqualifications. — The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
[Emphasis supplied.]
xxx xxx xxx
We should mention at this juncture that there is no need to rule on whether
Arbitrary Detention, the crime of which Moreno was convicted by final judgment,
involves moral turpitude falling under the first part of the above-quoted provision.
The question of whether Arbitrary Detention is a crime involving moral turpitude
was never raised in the petition for disqualification because the ground relied
upon by Mejes, and which the Comelec used in its assailed resolutions, is his
alleged disqualification from running for a local elective office within two (2) years
from his discharge from probation after having been convicted by final judgment
for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years
and Four (4) Months. Besides, a determination that the crime of Arbitrary
Detention involves moral turpitude is not decisive of this case, the crucial issue
being whether Moreno's sentence was in fact served.  aDcETC

In this sense, Dela Torre v. Comelec is not squarely applicable. Our

pronouncement therein that the grant of probation does not affect the
disqualification under Sec. 40(a) of the Local Government Code was based
primarily on the finding that the crime of fencing of which petitioner was convicted
involves moral turpitude, a circumstance which does not obtain in this case. At
any rate, the phrase "within two (2) years after serving sentence" should have
been interpreted and understood to apply both to those who have been
sentenced by final judgment for an offense involving moral turpitude and to those
who have been sentenced by final judgment for an offense punishable by one (1)
year or more of imprisonment. The placing of the comma (,) in the provision
means that the phrase modifies both parts of Sec. 40(a) of the Local Government
Code.
The Court's declaration on the effect of probation on Sec. 40(a) of the
Local Government Code, we should add, ought to be considered an obiter in
view of the fact that Dela Torre was not even entitled to probation because he
appealed his conviction to the Regional Trial Court which, however, affirmed his
conviction. It has been held that the perfection of an appeal is a relinquishment of
the alternative remedy of availing of the Probation Law, the purpose of which is
to prevent speculation or opportunism on the part of an accused who, although
already eligible, did not at once apply for probation, but did so only after failing in
his appeal. 9
Sec. 40(a) of the Local Government Code appears innocuous enough at
first glance. The phrase "service of sentence," understood in its general and
common sense, means the confinement of a convicted person in a penal facility
for the period adjudged by the court. 10 This seemingly clear and unambiguous
provision, however, has spawned a controversy worthy of this Court's attention
because the Comelec, in the assailed resolutions, is alleged to have broadened
the coverage of the law to include even those who did not serve a day of their
sentence because they were granted probation.
Moreno argues, quite persuasively, that he should not have been
disqualified because he did not serve the adjudged sentence having been
granted probation and finally discharged by the trial court.
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
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 11 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.
Clearly, the period within which a person is under probation cannot be
equated with service of the sentence adjudged. Sec. 4 of the Probation
Law specifically provides that the grant of probation suspends the execution of
the sentence. During the period of probation, 12 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. 13
It is regrettable that the Comelec and the OSG have misapprehended the
real issue in this case. They focused on the fact that Moreno's judgment of
conviction attained finality upon his application for probation instead of the
question of whether his sentence had been served.  HDTcEI

The Comelec could have correctly resolved this case by simply applying
the law to the letter. Sec. 40(a) of the Local Government Code unequivocally
disqualifies only those who have been sentenced by final judgment for an offense
punishable by imprisonment of one (1) year or more, within two (2) years after
serving sentence.
This is as good a time as any to clarify that those who have not served
their sentence by reason of the grant of probation which, we reiterate, should not
be equated with service of sentence, should not likewise be disqualified from
running for a local elective office because the two (2)-year period of ineligibility
under Sec. 40(a) of the Local Government Code does not even begin to run.
The fact that the trial court already issued an order finally discharging
Moreno fortifies his position. Sec. 16 of the Probation Law provides that "[t]he
final discharge of the probationer shall operate to restore to him all civil rights lost
or suspended as a result of his conviction and to fully discharge his liability for
any fine imposed as to the offense for which probation was granted." Thus, when
Moreno was finally discharged upon the court's finding that he has fulfilled the
terms and conditions of his probation, his case was deemed terminated and all
civil rights lost or suspended as a result of his conviction were restored to him,
including the right to run for public office.
Even assuming that there is an ambiguity in Sec. 40(a) of the Local
Government Code which gives room for judicial interpretation, 14 our conclusion
will remain the same.
 It is unfortunate that the deliberations on the Local Government
Code afford us no clue as to the intended meaning of the phrase "service of
sentence," i.e., whether the legislature also meant to disqualify those who have
been granted probation. The Court's function, in the face of this seeming
dissonance, is to interpret and harmonize the Probation Law and the Local
Government Code. Interpretare et concordare legis legibus est optimus
interpretandi.
Probation is not a right of an accused but a mere privilege, an act of grace
and clemency or immunity conferred by the state, which is granted to a deserving
defendant who thereby escapes the extreme rigors of the penalty imposed by law
for the offense of which he was convicted. 15 Thus, the Probation Law lays out
rather stringent standards regarding who are qualified for probation. For instance,
it provides that the benefits of probation shall not be extended to those
sentenced to serve a maximum term of imprisonment of more than six (6) years;
convicted of any offense against the security of the State; those who have
previously been convicted by final judgment of an offense punished by
imprisonment of not less than one (1) month and one (1) day and/or a fine of not
less than P200.00; those who have been once on probation; and those who are
already serving sentence at the time the substantive provisions of the Probation
Law became applicable. 16
It is important to note that the disqualification under Sec. 40(a) of the Local
Government Code covers offenses punishable by one (1) year or more of
imprisonment, a penalty which also covers probationable offenses. In spite of
this, the provision does not specifically disqualify probationers from running for a
local elective office. This omission is significant because it offers a glimpse into
the legislative intent to treat probationers as a distinct class of offenders not
covered by the disqualification.
Further, it should be mentioned that the present Local Government
Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was
decided. When the legislature approved the enumerated disqualifications under
Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of
our ruling in Baclayon v. Mutia on the effect of probation on the disqualification
from holding public office. That it chose not to include probationers within the
purview of the provision is a clear expression of the legislative will not to
disqualify probationers. CDAcIT

On this score, we agree with Moreno that the Probation Law should be

construed as an exception to the Local Government Code. While the Local
Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special
legislation which applies only to probationers. It is a canon of statutory
construction that a later statute, general in its terms and not expressly repealing
a prior special statute, will ordinarily not affect the special provisions of such
earlier statute. 17
In construing Sec. 40(a) of the Local Government Code in a way that
broadens the scope of the disqualification to include Moreno, the Comelec
committed an egregious error which we here correct. We rule that Moreno was
not disqualified to run for Punong Barangay of Barangay Cabugao, Daram,
Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan
Elections.
Finally, we note that Moreno was the incumbent Punong Barangay at the
time of his conviction of the crime of Arbitrary Detention. He claims to have
obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar
in the July 15, 2002 elections. This situation calls to mind the poignant words of
Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v.
Comelec 18 where he said that "it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms."
WHEREFORE, the petition is GRANTED. The Resolution of the
Commission on Elections en banc dated June 1, 2005 and the Resolution of its
First Division dated November 15, 2002, as well as all other actions and orders
issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on
Elections is directed to proceed in accordance with this Decision. No
pronouncement as to costs.
SO ORDERED.
 (Moreno v. Commission on Elections, G.R. No. 168550, [August 10, 2006], 530
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PHIL 279-292)