Dear PAO,

My friend is on trial for a criminal case filed against him, and his lawyer informed him that he will likely lose the case. He said that he wasn’t too concerned because he could apply for probation to avoid serving jail time. Is it true that he can avoid jail time by applying for probation?

Polito

Dear Polito,

Probation is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. (Section 3, Presidential Decree 968, as amended)

In the case of Jaime Chua Ching v. Fernando Ching (GR 240843, June 3, 2019, penned by Associate Justice Estela Perlas-Bernabe), the Supreme Court pronounced that “[it] 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 the 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 develop themselves into law-abiding and self-respecting individuals, as well as assist them in their reintegration with the community.”

In Francisco v. Court of Appeals (GR 108747, April 6, 1995, penned by Associate Justice Josue Bellosillo), the Court reiterated that probation is not a right enjoyed by the accused, but rather, an act of grace or clemency conferred by the State, viz.:

“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.” (Citing Villareal v. People (GR 151258, Dec. 1, 1994, penned by Associate Justice Maria Lourdes Sereno))

As can be gleaned from Section 4 of Presidential Decree 968, as amended, a trial court may grant probation to a convicted defendant for a probationable offense upon their application within the period for perfecting an appeal. Thus, probation can no longer be taken after an appeal is filed. However, if an appeal leads to a modified judgment imposing a probationable penalty, the defendant may apply for probation based on the modified decision.

Note, however, that probation does not apply to individuals sentenced to over six years’ imprisonment; convicted of crimes against national security; previously convicted of offenses punishable by more than six months’ imprisonment and/or a fine exceeding one thousand pesos; previously granted probation; or already serving a sentence when the law was passed in 1976.

Now, applying for probation does not guarantee exemption of your friend from serving his prison sentence. His eligibility for probation primarily depends on the nature of his crime and upon the discretion of the judge handling his case.

We hope that we were able to answer your queries. This advice is solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Thank you for your continued trust and support.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]