DISQUALIFICATION, CONDITIONS AND MODIFICATION OF CONDITIONS,

TERMINATION IN PROBATION

Circumstances when Probation shall be denied (Sec. 8, P.D. 968, as amended)

Probation shall be denied if the court finds that:

 The offender is in need of correctional treatment that can be provided most

effectively by hi commitment to an institution; or
 There is undue risk that during the period of probation the offender will commit
another crime; or
 Probation will depreciate the seriousness of the offense committed.

Offenders disqualified from being placed on probation

The benefits of P.D. 968, as amended, shall not be extended to those:

 Those who have perfected an appeal from the judgment;
 Those sentenced to serve a minimum term of imprisonment of more than six year
(sec. 9[a], P.D. 968 as amended).
 Those convicted of subversion or any crime against the national security or
public order (sec 9 [b], P.D. 968 as amended).
 Crime against National Security – Title 1, Book II, Revised Penal Code:
 Treason
 Conspiracy and proposal to commit treason
 Misprision of treason
 Espionage
 Inciting to war and giving motives for reprisal
 Violation of neutrality
 Correspondence with hostile country
 Flight to enemy country
 Piracy and mutiny
 Crime against Public Order – Title III, Book II, Revised Penal Code
 Rebellion, insurrection, coup d’ etat, sedition
 Conspiracy and proposal to commit coup d’ etat, rebellion, insurrection
 Disloyalty of public officers or employees
 Inciting to rebellion or insurrection
 Acts tending to prevent the meeting of the assembly and similar bodies
 Disturbance of proceedings
 Violation of parliamentary immunity
 Illegal assemblies
 Illegal association
 Direct/indirect assault, resistance and disobedience
 Public disorders – tumults, alarm and scandals
 Delivering prisoners from jail
 Evasion of service of sentence
  Commission of another crime during service of penalty imposed for another
previous offense
 Those who previously been convicted by final judgment of an offense punished
by imprisonment of not less than one month and one day and /or a fine not less
than two hundred pesos
 Those who have been once on probation under the provision of P.D. 968
 Those who are already serving sentence at the time the substantive provision of
this Decree became applicable pursuant to Sec. 33 thereof of PD 968
 Those convicted of drug trafficking or pushing, regardless of the penalty imposed
 Those who are convicted of malicious reporting under the Anti-Money
Laundering Act.

Objection of the Trial Prosecutor to the Grant of Probation

The trial prosecutor shall object to the application for the grant of probation in the
following instances:
 If the defendant fails to comply with any of the criteria for the grant of probation
as set forth in Sec. 8 of PD 968, as amended.
 If there is no post-sentence investigation conducted by the probation officer.
 If the application is filed after an appeal from the convicted is perfected: or
 If the application is one – sentence to more than 6 years and 1 day;
 Convicted of an offense against the security of the state;
 Who has been previously convicted by final judgment of an offense punished by
imprisonment of not less than 1 month and 1 day and / or a fine of not more than
200 pesos.
 Who has once been on probation under PD. 968, as amended. (Sec. 7, Part XI,
DOJ Manual for Prosecution)

The Conditions of Probation

The grant of probation is merely privilege and its grant rests upon the discretion of the
court. 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
probationer. The defendant after conviction and sentence is release subject to
mandatory and discretionary conditions imposed by the court and to the supervision of
probation officer.

Court’s Latitude in Imposing Conditions

As a rule, the conditions listed under sec. 10 of the probation law are not exclusive.
Courts are allowed practically any term it chooses, the only limitation being that is does
not jeopardize the constitutional rights of the accused. Courts may impose conditions
with the end that these conditions would help the probationer develop into a law-abiding
individual.
The trial court is given the decision to impose conditions in the order granting the
probations “as it may deem best”. It is necessary that the conditions which provides for
a program of payment of his civil liability will address the offender’s needs and
capacities. Such need may be ascertained from the findings and recommendations in
the post sentence investigation report submitted by the probation officer after
investigation of the financial capacity of the offender and that such condition is to the
end that the interest of the State and the reformation of the offender or probationer is
best served.

The Mandatory Conditions of Probation

 The probationer should present himself to the probation officer designated to

undertake his supervision at such place as may be specified in the order within
72 hours from receipt of said order.
 Report to the probation officer at least once a month at such time and place as
specified by said officer.

The Discretionary or Special Conditions of Probation

The court may also require the petitioner to:

 Cooperate with a program of supervision;

 Meet his family responsibilities;
 Devote himself to a specific employment and not to change said employment
without the prior written approval of the probation officer;
 Undergo medical, psychological or psychiatric examination and treatment and
enter and remain in specified institution, when required for that purpose;
 Pursue a prescribed secular study or vocational training;
 Attend or reside in a facility established for instruction, recreation or residence of
persons on probation;
 Refrain from visiting house of ill-repute;
 Abstain from drinking intoxicating beverages to excess;
 Permit to probation officer or an authorized social worker to visit his home and
place or work;
 Reside premises approved by it and not to change his residence without its prior
written approval; or
 Satisfy any other condition related to the rehabilitation of the defendant and not
unduly restrictive of his liberty or incompatible with his freedom of conscience.

Effectivity of a 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 prescribes 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.
Duration or Period of Probation

 The period of probation of a defendant sentenced to a term of imprisonment of

not more than 1 year shall not exceed 2 years.
 If more than 1 year to 6 years, said period shall not exceed 6 years.
 When the sentence imposes a fine only and the offender is made to serve
subsidiary imprisonment in case of insolvency, the period shall not be less than
nor to be more than twice the total number of days of subsidiary imprisonment as
computed at the rate established in article 39 of the RPC, as amended.

Control and Supervision of Probationer

The probationer and his probation program shall be under the control of the court that
placed him on probation subject to the actual supervision and visitation by a probation
officer.

Whenever a probationer is permitted to reside in a place under the jurisdiction of

another court, control over him shall be transferred to the Executive Judge of the Court
of First Instance (Regional Trial Court) of that place, and in such a case, a copy of the
probation order, the investigation report and other pertinent records shall be furnished
sad Executive Judge. Thereafter, the Executive Judge to whom jurisdiction over the
probationer is transferred shall have the power with respect to him that was previously
processed by the court which granted the probation.

Role of the Probation Officer

The probation officer plays a major role in the release of the probationer because he is
in the best position to report all information relative to the conduct and mental condition
of the probationer in his environment, and the existing institutional and community
resources that he may avail when necessary. It is the probation officer who primarily
undertakes the supervision and reform of the probationer through a personalized,
individualized and community-based rehabilitation program for a specific period of time.
On the basis of his final report, the court can determine whether or not the probationer
may be released from probation.

The probation officer’s neglect to submit his report and recommendation is

reprehensible. Without the report, the trial court could not issue the order of final
discharge of the probationer. It is this order of final discharge, which would restore the
probationer’s suspended civil rights. In the absence of the order of final discharge, the
probation would still subsist, unless otherwise revoked for cause.

Duties and Responsibilities of Provincial Probation officer

 Investigate all persons referred to him for investigation by the proper court or the
administrator;
  Instruct all probationers under his supervision or that of the probation aide on the
terms and conditions of their probation;
 Keep himself informed of the conduct and condition of the probationers under his
charge and use all suitable methods to bring about an improvement in their
conduct and conditions;
 Maintain a detailed record of his work and submit such written reports as may be
required by the Administration of the court having jurisdiction over the
probationer under his supervision;
 Prepare a list of qualified residents of the province or city, where he assigned
who are willing to act as probation aides;
 Supervise the training of probation aides and oversee the latter’s supervision of
probationers;
 Exercise supervision and control over all field assistants, probation aides and
other personnel; and
 Perform such duties as may be assigned by the court or the Administration.

Revocation of Probation Procedure

The probation is revocable before the final discharge of the probationer by the court. At
any time during the probation, the court may issue a warrant of arrest of a probationer
for violation of any of the conditions or probation. The probationer, once arrested and
detained shall immediately be brought before the court for a hearing, which may be
informal and summary, of the violation charge. The defendant may be admitted to bail
pending such hearing. In such case, the provision regarding release on bail of persons
charged with a crime shall be applicable to probationers arrested under these
provisions. If the violation is established, the court may revoke or continue his probation
and modify the conditions thereof.

In the hearing, which shall be summary in nature, the probationer shall have the right to
be informed of the violation charged and to adduce evidence in his favor. The court
shall not be bound by the technical rules of evidence but may inform itself of all the facts
which are material and relevant to ascertain the veracity of the charged. The state shall
be represented by a prosecuting officer in any contested hearing. If the violation is
established, the court may revoke or continue his probation and modify the conditions
thereof. If revoked, the court shall order the probationer to serve the sentence originally
imposed. An order revoking the grant of probation or modifying the terms and conditions
thereof shall not be appealable.

Rules where there is Violation of Probation

Violation of probation shall be understood to mean any act or omission on the part of a
probationer, which is contrary to the terms and conditions specified in the probation
order.

The probation officer may motu proprio (on its own motion or initiative) or upon the
report of a probation aide or any other person, conduct a fact-finding investigation of
any alleged violation of probation. If the investigation establishes the violation of
probation, the probation officer shall report the same to the court.

Content of Violation Report

 A complete statement of facts of the alleged violation including the date, place
and circumstances thereof, the statements of witnesses and the arresting officer,
if any;
 The explanation, if any, of the probationer to the charge; and
 The recommendation of the probation officer. (Sec. 37, Rules on Probation
Methods and Procedure)

The Arrest of the Probationer and Hearing on the Violation of Probation

The court after considering the nature and seriousness of the alleged violation on the
basis of the report mentioned in Sec. 37 above, may issue a warrant for the arrest of the
probationer for the violation of probation. (Sec. 38, Rules on Probation Methods and
Procedures)

Once arrested and detained, the probationer shall immediately be brought before the
court for hearing of the violation charged. The hearing may be informal and summary.
The petitioner may be admitted to bail pending such hearing. In such a case, the
provisions regarding release on bail of persons charged with a crime shall be applicable
to the probationers arrested under this provision. The probationer shall have the right to
be assisted by counsel at the hearing for the violation of probation. The probation office
may be assisted in hearing by the prosecuting officer in the presentation of the proof or
evidence of the alleged violation of probation.

How Probation is Terminated and Effects of its Termination

Upon consideration of probation officer’s report, the court may order final discharge of
the probationer and thereupon the cases is deemed terminated. It was held in Bala vs.
Martinez et al., 181 SCRA 459 that, the probation is not coterminous with its period,
hence mere lapse of the probation period does not terminate the probation. There must
be an order issued by the court terminating the probation. The termination of probation
restores to the probationer all civil rights and fully discharge his liability for any fine
imposed as to the offense for which probation was granted.

After the period of probation and upon consideration of the report and recommendation
of the probation officer, the court may order the final discharge of the probationer upon
finding that he has fulfilled the terms and conditions of his probation and thereupon the
cause is deemed terminated.

The final discharge of the probationer shall operate to restore to him all civil rights lost
or suspend 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.
The probationer and the probation officer shall each be furnished with a copy of such
order. (Sec. 16, PD 968 as amended)

Causes for Probation Cases to be Terminated or Closed

The probation case may be closed by termination due to:

 Expiration of the period of probation

 By revocation for cause under the Probation Law;
 By the death of the probationer;
 By the successful completion of a program of probation

Final Report for Closing or Terminating the Probation Case

 The rule on probation provides that, at least 30 days before the expiration of the
period of probation, the probation office shall submit a final report to the court,
which shall indicate the following, among other;
 The program of supervision and treatment followed in dealing with the
probationer;
 The response of the probationer to supervision and treatment;
 The result of the said supervision;
 A recommendation as to whether or not the probationer may be discharge from
probation or in the alternative, whether probation should be continued, where
applicable, and if discharged, to advise the probationer to continue therapy,
where necessary, even after the termination of probation; and
 Such other information as may be required by the court.

Confidentiality of Records of a Probationer

The investigation report and the supervisory history of a probationer obtained under this
decree shall be privileged and shall not be disclosed directly or indirectly to anyone
other than the probation administration or the court concerned, except that the court, in
its discretion, may permit thereof whenever the best interest of the probationer make
such disclosure desirable or helpful: Provide, further, that, any government office or
agency engaged in the correction or rehabilitation of offenders may, if necessary, obtain
copies of said documents for its official use from the proper court of administration.

In view of the recent enactment, which unequivocally expresses the intention to

maintain the confidentiality of information in cases involving violence against women
and their children, henceforth, the court shall withhold the real name of the victim-
survivor and shall use fictitious initials instead to represent her. Likewise, the personal
circumstances of the survivors or any other information tending to establish or
compromise their identities, as well as those of their immediate family or household
members, shall not be disclosed.
OTHER FORMS OF PROBATION

Application of Probation to Children in Conflict with the Law

Under R.A. 9344 known as the “Juvenile Justice Welfare Act of 2006” a child in conflict
with the law (CICL) shall be entitled to probation under the Probation Law of 1976 in lieu
of service of his sentence. Section 42 provides:

SEC. 42. Probation as an Alternative to Imprisonment – the court may, after it shall
have convicted and sentenced a child in conflict with the law, and upon application at
any time, place the child on probation lieu of service of his/her sentence taking into
account the best interest of the child. For this purpose, Section 4 of P.D. no 968,
otherwise known as the “Probation Law of 1976”, is hereby amended accordingly.
(Emphasis Supplied)
Probation and Community Service for Child Drug Dependent

A child drug dependent under the voluntary submission program for (confinement,
treatment and rehabilitation) who is discharged as rehabilitated by the Center or DOH-
accredited physician, but does not qualify for exemption from criminal liability under
section 55 of the Comprehensive Dangerous Drug Act, may be charged under the
provision of the Act. However, the court upon its discretion may order that the child be
placed on probation and that he/she undergo community service in lieu of imprisonment
and/ or fine, without prejudice to the outcome of any pending case filed in court.

The child drug dependent shall undergo community service as part of his/her after-care
and follow-up program which may be done in coordination with non-governmental civic
organization accredited by the DSWD, with the recommendation of the Board. Both the
after-care and follow-up program shall employ a strengths-based approach which shall
focus on reinforcing the positive internal resources of the child, such as his/her innate
talents or skills, what he/she is good at, as well as what his/her life goals are and what
may be done to achieve them. (Sec. 17, A.M. No. 07-8-2-SC, the Rule on Children
Charged under the Comprehensive Dangerous Drugs Acts of 2002)
Automatic Suspension of Sentence of a Child Drug Dependent

If a child is under 18 years of age at the time of the commission of the offense and is
found guilty thereof, the court shall determine and ascertain any civil liability. However,
instead of pronouncing the judgment of conviction, the court shall place the child under
suspended sentence, without need of application. Suspension of sentence shall still be
applied even if the child is already 18 year of age at the time of the conviction.

Upon suspension of sentence and after considering the various circumstances of the
child, the court shall impose the appropriate disposition measures under the Rule on
Juveniles in Conflict with the Law.
While under suspended sentence, the child shall be under the supervision and
rehabilitation surveillance of the Board, under which such conditions, that the court may
impose for a period ranging from six to eighteen months.

Upon recommendation of the Board, the court may commit the child under suspended
to a center or to the care of a DOH-accredited physician for at least 6 months, with
after-care and follow-up program for not more than 18 months. (Sec. 29, A.M. No. 07-8-
2-SC, the Rule on Children Charged under the Comprehensive Dangerous Drug Act of
2002)

Other Cases and Ruling in Probation

 Probation is not a right of the accused, but rather an act of grace and clemency
or immunity conferred by the State which may be granted by the court to a
seemingly deserving defendant who thereby escapes the extreme rigors of the
penalty imposed by law for the offense of which he stands convicted. (Fancisco
vs. CA, G.R. No. 108747, April 16, 1995)
 Probation is the 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. (Baclayon vs. Mutia, G.R. No. L-59298, April 30, 1984;
129 SCRA 154)
 The probation law is not a penal statute; the principle of liberal interpretation
does not apply. (Pablo vs. Judge Castillo, G.R. No. 1215108, August 3, 2000)
 Section 70 of R.A. No. 9165, Comprehensive Dangerous Drug Act of 2002
provides that a first time minor offender may be released on probation in lieu of
imprisonment even if the sentence is higher than that provided under the law on
probation. However, a person convicted for drug trafficking or pushing,
regardless of the penalty imposed cannot avail of the privilege granted by the
probation. The intention of the legislators in Section 24 of R.A. No. 9165 is to
provide stiffer and harsher punishment for those persons convicted of drug
trafficking or pushing while extending a sympathetic and magnanimous hand in
section 70 to drug dependents who are found of guilty of violation Section 11
(possession) and 15 (use) of the act. The law are considers the users and
possessors of illegal drugs as victims while the drug traffickers and pushers as
predators. Hence drug traffickers, and pushers, regardless if they are minor or
not, are categorically disqualified from availing the law on probation, (Padua vs.
People, July 23, 2008)
 In Amandy vs. People 161 SCRA 436, it was held that, the grant or denial of an
application does not solely on the offender’s potential to reform but also on the
observance at demands of justice and public interest.
 The grant or denial of application for probation should not rest solely upon the
recommendation of the probation officer. The applicant for probation must be
given adequate opportunity to disprove the report of the probation officer and to
 disprove that he is entitled to probation. (Cabatingan vs. The Hon.
Sandiganbayan, 102 SCRA 187)
 The legal effect of probation is only to suspend the execution of the sentence.
The conviction of fencing which involves moral turpitude subsists and remains
totally unaffected notwithstanding the grant of probation. In fact, a judgment of
conviction in a criminal case becomes ipso facto (by the fact or act itself) final
when the accused applies for probation, although it is not executor pending
resolution of his application. (Dela Torre vc. COMELEC, G.R. No. 121592, July 5,
1996)

The Eligibility for Review of a Parole Case

 An inmate’s case may be eligible for review by the Board provided that:
 The inmate is serving and indeterminate sentence the maximum period of which
he exceeds 1 year.
 He has served the minimum period of the indeterminate sentence;
 His conviction is final and executor;
 In case he has one or more co-accused who had been convicted, the
director/warden concerned shall forward their prison records and
carpetas/jackets at same time;
 He has no pending criminal case; and
 He is serving sentence in the national penitentiary, unless the confinement of
said inmate in a municipal, city, district or provincial jail is justified. (Rule 2.2.,
BPP, Resolution No. 24-4-10)

Who are Disqualified for Parole?

Pursuant to Section 2 of Republic Act No. 4103. As amended, otherwise known

as the “Indeterminate Sentence Law”, parole shall not be granted to the following
inmates:

 Those convicted of offense punished with death penalty of life imprisonment;

 Those convicted of treason, conspiracy or proposal to commit treason;
 Those convicted of misprision of treason, rebellion, sedition or coup de’ etat;
 Those convicted of piracy;
 Those who are habitual delinquents, i.e., those who, within a period of 10 years
from the date of release from prison or last conviction of the crimes of serious or
less serious physical injuries, robberies, theft, estafa, and falsification, are found
guilty of any of said crimes a third time or oftener;
 Those who escaped from confinement or evaded sentence;
 Those who having been granted conditional pardon by the President of the
Philippines shall have violated any of the terms thereof;
 Those whose maximum term of imprisonment does not exceed 1 year;
 Those convicted of offenses punished with reclusion perpetua, or whose
sentences were reduced to reclusion perpetua by reason of Republic Act No.
9436 enacted on June 24, 2006, amending Republic Act No. 7659 dated January
1, 2004; and
 Those convicted for violation of the laws on terrorism, plunder and transnational
crimes. (Rule 2.2, BPP, Resolution No. 24-4-10)