Twelve (12) Essential Points on
Presidential Decree No. 968 (1978) or the Probation Law
1. "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. [PRES. DECREE NO. 968 (1976), sec. 3(a)]
2. The Probation Law of 1976 applies to all offenders, except
those entitled to the benefits under the provisions of
Presidential Decree No. 603, as amended, and similar laws.
[PRES. DECREE NO. 968 (1976), sec. 1]. Pres. Decree No. 603
benefits minor offenders. However, a child in conflict with the
law is now allowed to apply for probation in lieu of his/her
sentence under Republic Act No. 9344 (2006). [REP. ACT NO.
9344 (2006), sec. 42]
3. The following are disqualified from the benefits of the
Probation Law:
a. those sentenced to serve a maximum term of
imprisonment of more than six (6) years;
b. those convicted of any crime against the national
security;
c. those who have previously been convicted by final
judgment of an offense punished by imprisonment of
more than six (6) months and one (1) day and/or a fine of
more than one thousand pesos (P1,000.00);
d. those who have been once on probation under the
provisions of this Decree;
e. those who are already serving sentence at the time the
substantive provisions of the Probation Law became
applicable; [PRES. DECREE NO. 968 (1976), sec. 9] and
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f. those convicted of drug trafficking and pushing,
including child in conflict with the law. [REP. ACT NO.
9165 (2002), sec. 24]
4. Fixing the cut-off point at a maximum term of six (6) years
imprisonment for probation is based on the assumption that
those sentenced to higher penalties posed too great a risk to
society, not just because of their demonstrated capability for
serious wrongdoing but because of the gravity and serious
consequences of the offense they might further commit. The
Probation Law, as amended, disqualifies only those who have
been convicted of grave felonies as defined in Art. 9 in relation
to Art. 25 of the Revised Penal Code, and not necessarily those
who have been convicted of multiple offenses in a single
proceeding who are deemed to be less perverse. Hence, the
basis of the disqualification is principally the gravity of the
offense committed and the concomitant degree of penalty
imposed. Those sentenced to a maximum term not exceeding
six (6) years are not generally considered callous, hard core
criminals, and thus may avail of probation. [Francisco v. Court
of Appeals, 243 SCRA 384 (1995)]
5. Any person convicted for drug trafficking or pushing under
Rep. Act No. 9165, regardless of the penalty imposed by the
court, cannot avail of the privilege granted by the Probation
Law or Presidential Decree No. 968. [Rep. Act No. 9165 (2002),
sec. 24] In Padua v. People, G.R. No. 168546, 23 July 2008,
the Supreme Court held that this disqualification applies to
minor offenders or child in conflict with the law like Michael
Padua who was only 17 years old when he committed the
crime of sale of a dangerous drug.
6. An application for probation shall be filed with the trial court.
It should be filed after conviction and sentence and within the
period for perfecting an appeal. [PRES. DECREE NO. 968 (1976),
sec. 4]
The filing of the application shall be deemed a waiver of the
convict’s right to appeal. [PRES. DECREE NO. 968 (1976), sec. 4]
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The law considers appeal and probation mutually exclusive
remedies. By perfecting an appeal, the convict ipso facto
relinquished his alternative remedy of availing of the Probation
Law. [Francisco v. Court of Appeals, 243 SCRA 384 (1995)]
7. Republic Act No. 10707 (2015) amended Section 4 of the
Probation Law. It provides that, when a judgment of conviction
imposing a non-probationable penalty is appealed or reviewed,
and such judgment is modified through the imposition of a
probationable penalty, the defendant shall be allowed to apply
for probation based on the modified decision before such
decision becomes final. The application for probation based on
the modified decision shall be filed in the trial court where the
judgment of conviction imposing a non-probationable penalty
was rendered, or in the trial court where such case has since
been re-raffled. [PRES. DECREE NO. 968, sec. 4]
This notwithstanding, the accused shall lose the benefit of
probation should he seek a review of the modified decision
which already imposes a probationable penalty. [PRES. DECREE
NO. 968, sec. 4]
8. Probation is a mere privilege, not a right. Its benefits cannot
extend to those not expressly included. Probation is not a right
of an 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. It is a special prerogative
granted by law to a person or group of persons not enjoyed by
others or by all. [Francisco v. Court of Appeals, 243 SCRA 384
(1995)]
A court may deny an application for probation if it finds that:
(a) The offender is in need of correctional treatment that can
be provided most effectively by his commitment to an
institution; or
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(b) There is an undue risk that during the period of
probation the offender will commit another crime; or
(c) Probation will depreciate the seriousness of the offense
committed. [PRES. DECREE NO. 968 (1976), sec. 8]
An order granting or denying probation shall not be
appealable. [PRES. DECREE NO. 968 (1976), sec. 4]
9. If the convict is sentenced to a term of imprisonment of not
more than one (1) year, the period of probation shall not
exceed two (2) years. In all other cases, said period shall not
exceed six (6) years. [PRES. DECREE NO. 968 (1976), sec. 14]
When the sentence imposes a fine only and the offender is
made to serve subsidiary imprisonment, the period of
probation shall not be less than nor be more than twice the
total number of days of subsidiary imprisonment as computed
at the rate established in Article 39 of the Revised Penal Code.
[PRES. DECREE NO. 968 (1976), sec. 14]
10. There are two kinds of conditions that may be imposed on a
person placed on probation: (a) general or mandatory; and (b)
special or discretionary. [Baclayon v. Mutia, 129 SCRA 148]
It is mandatory that the probationer (i) 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 the order; and (ii) report to the probation officer
at least once a month at such time and place as specified by
such officer.
On the other hand, the trial court may impose several other
conditions like (i) meeting his family responsibilities, (ii)
devoting himself to a specific employment, (iii) pursue secular
study or vocational training, (iv) refrain from visiting houses of
ill-repute, (v) reside at premises approved by the probation
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officer and not to change his residence without prior written
approval, among others.
The only limitation in imposing conditions is that they must
not be unduly restrictive of the liberty of the probationer or
incompatible with his freedom of conscience. [PRES. DECREE
NO. 968 (1976), sec. 10]
11. 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 case 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. [PRES. DECREE NO.
968 (1976), sec. 16]
The expiration of the probation period alone does not
automatically terminate probation. Nowhere is the ipso facto
termination of probation found in the provisions of the
probation law. Probation is not coterminous with its period.
There must first be issued by the court an order of final
discharge based on the report and recommendation of the
probation officer. Only from such issuance can the case of the
probationer be deemed terminated. [Bala v. Martinez, 181
SCRA 459 (1990)]
12. At any time during probation, the court may issue a warrant
for the arrest of a probationer for violation of any of the
conditions of 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
charged. The defendant 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
probationers arrested under this provision. If the violation is
established, the court may revoke or continue his probation
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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. [PRES.
DECREE NO. 968 (1976), sec. 15]
