PROBATION, P.D. No.
968, THE ADULT PROBATION OF
1976, AS AMENDED BY R.A. 10707; THE P.D. NO. 603 OR
“THE CHILD AND YOUTH WELFARE CODE ON SUSPENDED
SENTENCE; AND SECTION 38 OF R.A. 9344, THE JUVENILE
JUSTICE AND WELFARE ACT, ON PROVINDING LIMIT TO
THE SUSPENDED SERVICE OF SENTENCE:
PROBATION: BRFIEF HISTORIC AL BACKGROUND:
Probation is a community-based correction or treatment of offenders which gained interest and
popularity among populace due to the mounting dissatisfaction and distrust in the past, on the
capability of the prison or jail systems to prevent crimes or to reform offenders behind bars. During
colonial rule and occupation, once a person was imprisoned in prisons or jails, most often, they met
their creator or they died due to prevailing concept on that time that imprisonment was for retribution
or punishment with no aspect of reformation or rehabilitation of offenders. Prisons or jails confinement
contributed to a greater mortality rate of the country during those time.
As it evolved, the prison system shifted from the concept of retribution to reformation where
rehabilitation programs were introduced. However, the dilapidated jails and its over-crowding seriously
resulted in some interrelated problems of spreading contagious diseases and other cardio vascular
ailments being still the top causes of death of inmates in jails instead of redeeming their physical well-
being.
Worse is that, there were some sentiments casting prisons and jails to be a breeding place of recruiting
more criminals joining various “pangkat” or gang affiliations, sanctuary or havens of the drug trade
transactions by the known drug lords, and other illegal activities like prostitutions in jails portraying
situations that our penal system was in big failure rather than to rehabilitate or reform offenders.
Even in the previous years. We had witnessed and were surprised of the controversy created of what
Police and Prison Authorities discovered during Oplan Galugad or greyhound operations in New Bilibid
Prison, Muntinlupa City, and with due respect and without offending any sensibility of the BUCOR, it is
of public knowledge that such had been the subject of Senate Inquiry televised and viewed by the
people in all national TV Programs and Media Broadcasting.
Probation as an alternative to prison is the most viable and promising program which won immediate
and strong support being the national program of corrections. It is also the most promising of all
Philippine attempts to re-integrated offenders into the community in the community-based process of
rehabilitation. It has the following advantages:
1. It will ameliorate the over-crowding of jails and prisons;
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2. It is a measure of cutting the enormous cost of maintaining the old and building
new institutional facilities;
3. It provides first offenders with a second chance;
4. It implements modern, more humane concepts of penology;
5. It lessens the risk of turning youthful or first offenders into hard-core recidivist
criminals;
6. It reduces detention cost;
7. It protects society through adequate supervision by Probation Officers made
mandatory by the court;
8. It is endorsed by the United Nations and advocated as an alternative to prisons for
qualified offenders;
9. Its effectivity has already been proven in many other jurisdictions where it is in
practice.
PROBATION, ITS CONCEPT:
The Court convicts and sentences the accused but the execution of the sentence, imprisonment or fine
may be suspended and placed him on probation.
During a period of time fixed by the court, the probationer is provided with treatment and imposed
conditions and placed under the supervision of a Probation Officer.
If the defendant violates any of the conditions, the court may revoke his probation and order him to
serve the sentence originally imposed.
Otherwise, or if no violation at all, he shall be discharged by the court after the period of probation,
whereupon the case against him shall be deemed terminated. (Budlong v. Palisok, G.R No. 60151, June
24, 1983).
PROBATION AS DEFINED BY LAW:
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 Probation Officer. ( Section 3 of P.D No.
968).
PROBATION, PAROLE, AND PARDON ARE DISTINGUISHED AS FOLLOWS:
1. Grant of probation is judicial while that of parole and pardon, its grant is executive;
2. Probation suspends the sentence; parole suspends the unserved portion of the sentence;
pardon is the remission of penalty;
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3. Offender can only apply for probation within the period of perfecting an appeal; Offender
is eligible for pardon after conviction by final judgment; Offender is eligible for parole
after
serving the minimum of the indeterminate penalty;
4. Offender, who was sentenced to suffer a penalty of more than six years of imprisonment
is disqualified to apply for probation; Offender, who was sentenced to suffer reclusion
perpetua, life imprisonment or death penalty, is not qualified for parole; However, the
President can pardon offender even if the penalty imposed upon him is reclusion perpetua
or death penalty.
PURPOSE OF PROBATION:
The purpose of probation is reformative in nature and not preventive and is to be exercised primarily for
the benefit of organized society and only incidentally for the benefit of the accused. (Facinal v. Cruz, G.R.
No. 50618, September 2, 1992).
The law is based on the Philosophy that individual can change and deserve a second chance, and it is for
the greater good of the society that offenders not be summarily eliminated from productive life brought
back to its fold in the quickest and least traumatic way possible. (Budlong v. Palisok, supra)
GRANT OF PROBATION, MANNER AND CONDITIONS:
Trial court may upon application by defendant within the period for perfecting an appeal suspend the
execution of sentence and place the defendant on probation. But while the resolution of the application
for probation is pending, the trial court cannot implement the judgment of conviction.
Under P.D No 968, as amended by R.A. No. 10707, the trial court shall, upon receipt of the application
for probation filed, suspend the execution of the sentence imposed in the judgment.
An order granting or denying probation (Section 4 of the P.D No. 968) or revoking the grant of probation
or modifying the terms and conditions thereof (Section 15) shall not be appealable. (Suyan v. People,
G.R. No. 189644, JUuly 2, 2014).
However, If there is grave abuse of discretion in granting or deny application for probation, the matter
may be elevated to the appellate court by way of petition for certiorari under Rule 65 of the Revised
Rules of Court. ( Ballete Jr. v. Leviste, G.R. No. L-49907, August 21, 1979).
SUSPENSION OF THE ACCESSORY PENALTY:
The grant of probation suspends the execution of the principal penalty of imprisonment, as well as that
of the accessory penalties. It appears then the during the period of probation, the probationer is not
even
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disqualified from running for a public office because the accessory penalty of suspension for public office
is put on hold for the duration of the probation.
During the period of probation, the probationer does serve the penalty imposed upon him by the court
but is merely required to comply with all the conditions prescribed in the probation order. ( Villareal v.
People, G.R. No.151258, December 1, 2014).
NON SUSPENSION OF THE CIVIL ASPECT OF THE CASE:
Grant of probation shall not suspend the payment of civil liability. Probation is defined by Section 3 of
P.D. No. 968 as “ 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.”
The “conviction and sentence” clause of the statutory definition clearly signifies that probation affects
only the criminal aspect of the case.
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 not been required to serve the same by reason of
probation. (Article 113 of the Revised Penal Code; Budlong v. Palisok, G.R. No. 60151, June 24, 1983).
The offended party can file a motion for the execution of the civil aspect of the decision although the
accused is placed under probation or the court should allow the offended party to present evidence on
the civil aspect of the case after the accused pleaded guilty during his arraignment, and was placed on
probation.
A hearing to prove the civil liability of the accused would neither nullify the order of suspension of the
sentence nor defeat the purpose of the Probation Law. The civil action for the civil liability is separate
and distinct from the criminal action. ( Budlong v. Palisok, supra).
The court order directing the probationer to pay the actual damages in a monthly installment is valid
and did not modify the decision after it had become final. Such order did not increase or decrease the
civil liability adjudged against the probationer but merely provided for the manner of payment by him of
his civil liability during the period of probation. (People v. Salgado v. CA, G.R. No. 89606, August 30,
1990).
MUTUALLY EXCLUSIVE REMEDIES:
The filing of the application for probation shall be deemed a waiver of the right to appeal. On the other
hand, no application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction. (Section 4 of P.D. No. 968).
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In other words, appeal and application for probation are mutually exclusive remedies. The accused
cannot avail two remedies. Availing the remedy of appeal excludes the remedy of probation, and vice
versa.
WAIVING RIGHTS TO APPEAL:
The filing of the application for probation shall be deemed a waiver of the right to appeal (Section 4 of
P.D. No. 968) and shall make the decision of conviction final and shall not interrupt the running of period
to appeal.
However, Section 4 should not be strictly construed since both appeal and probation are based on
philosophy of liberality towards the accused.
The waiver of right to appeal upon filing of application for probation is revocable. The accused can
withdraw the application for probation and file an appeal provided that both the withdrawal and appeal
are made within the period of perfecting an appeal. ( Yusi v. Morales, [Link]. 61958, April 28, 1983).
The exercise of right to apply for probation is a waiver of right to appeal. While accused 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, which seeks to make appeal and probation
mutually exclusive remedies. (Almero v. People, G.R. No. 188191, March 12, 2014).
WAIVING RIGHT TO APPLY FOR PROBATION:
The exercise of right to appeal is a waiver of right to apply for probation. 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, that is 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 bath”.
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. (Francisco v. CA, G.R No. 108747, April
6, 1995).
Under the old rule, if trial court sentenced the accused to a penalty of more than six years but appellate
court reduced it to a probationable level, he could not apply for probation because of rule of mutually
exclusive remedies unless the sole issue raised in the appeal is the impropriety of penalty. (Lagrosa v.
People, G.R. No. 152044, July 3, 2003).
Under the present rule, the accused can still apply for probation even if he raises issues other than the
impropriety of the penalty. ( Colinares v. People, G.R. No. 182748, December 13, 2011).
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In Dimakuta v. People, G.R. No. 206513, October 20. 2015, the Supreme Court abandoned the Colinares
principle. However, R.A. No. 10707, which was approved on November 26. 2015, has rejected the
Lagrosa case and Dimakuta case and adopted Colinares principle.
In Colinares v. People, supra, the accused, who was convicted by the lower court of a non-probationable
offense of frustrated homicide, but on appeal was found guilty of a probationable offense of attempted
homicide, may apply for probation upon remand of the case to the RTC because of the followings
reasons:
1. The Probation Law never intended to deny an accused his right to probation
through no fault of his;
2. If the accused will not be allowed to apply for probation, he will be made to pay
for the trial court’s erroneous judgment;
3. While it is true that probation is a mere privilege, the accused has the right to
apply for that privilege;
4. Under the law, appealing from judgment of conviction is a waiver of right to apply
for probation; in this case, the accused did not appeal from judgment of a
conviction for attempted homicide rendered by the appellate court.
In Villareal v. People, G.R. No. 151258. December 1, 2014, accused was convicted of homicide, a non-
probationable crime, by the trial court. However, the Supreme Court found them liable for reckless
imprudence resulting in homicide, which is a probationable crime. They can still apply for probation. The
Supreme Court reaffirmed the Colinares principle.
The Colinares doctrine is now found in the provision of Probation Law. Under Section 4 of P.D. No. 968,
as amended by R.A. No. 10707, no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction;
Provided, that when a judgment of conviction imposing 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.
Applying for probation based on a modified decision rendered by the appellate court, and seeking
review of the said decision are mutually exclusive remedies. Under Section 4 of [Link].968. as amended
by R.A. No. 10707, the accused shall lose the benefit of probation should he seek a review of the
modified decision which already imposes a probationable penalty.
The accused. who was convicted by the Regional Trial Court of a non-probationable offense of frustrated
homicide, but on appeal the Supreme Court found him guilty of probationable offense of attempted
homicide. Instead of applying for probation, the accused filed a motion for reconsideration and
maintained that he is innocent. Such filing of a motion for reconsideration seeking review of the
modified decision is a waiver of his right to apply for probation.
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THE COURT:
The Trial Court that convicted and sentenced the accused has authority to grant probation. (Villreal v.
People, G.R. No. 151258, December 1, 2014.
However, if the application for probation is based on modified decision rendered by the appellate court,
the same 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. ( Section 4, P.D.
No. 968, as amended by R.A. No. 10707).
PERIOD TO APPLLY FOR PROBATION:
The application for probation must be filed within the period of perfecting an appeal. (Section 4, P.D.
No. 968).
Commitment Order issued immediately after promulgation of judgment of conviction will not deprive
the accused of his right to appeal or apply for probation within the period of 15 days therefrom.
If the Motion for Reconsideration or New Trial in a criminal case is denied by the trial court, the accused
has a fresh period of 15 days to file notice of appeal.
In Yu [Link] Tatad, G.R. No. 170979, February 9, 2011, the Supreme Court applied Neypes principle
or the “fresh period rule” to the period of appeal in criminal cases. Hence, the “balance of period rule”
in Section 6 of Rule 122 of the Revised Rules of Criminal Procedure is not any more controlling.
The Neypes principle shall be considered in determining the period to file appeal or apply for probation.
If the application for probation is based on modified decision rendered by the appellate court, it must be
filed before such decision becomes final. (Section 4 of P.D. No. 968, as amended by R.A. No. 10707).
From receipt of the modified decision by the Court of Appeals reducing the penalty to a probationable
level, the accused has the right within 15 days from receipt thereof to file a motion for reconsideration
with the Court of Appeals or a petition for review with the Supreme Court or application for probation
with the Regional Trial Court that rendered the original decision or where the case was re-raffled.
If the accused is an adult, the application for probation must be filed within the period of perfecting an
appeal in accordance with Section 4 of P.D. No, 968 as amended by R.A. No. 10707.
If the applicant is a Child in Conflict With the Law, the application must be filed at any time in
accordance with Section 42, P.D. No. 968. The phrase “at any time” means the child in conflict with the
law may file application for probation even beyond the period of perfecting an appeal or during the
pendency of an appeal.
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The Court may not place the accused on probation and suspend the sentence without application from
the accused.
CRITERIA OF PLACING AN OFFENDER ON PROBATION:
In determining whether an offender may be placed on probation, the court shall consider all information
relative to the character, antecedents, environment, mental and physical condition of the offender, and
available institutional and community resources.
Probation may be denied if the Court finds that:
1. Offender is in need of correctional treatment that can be provided most
effectively by his commitment to an institution;
2. There is undue risk that during the period of probation the offender will
commit another crime;
3. Probation will depreciate the seriousness of the offense committed. ( Section 8
of P.D. 968).
Pending preliminary investigation against applicant for additional charge does not also constitute a
sufficient basis for a conclusion that she was already guilty thereof and that there is “undue risk” that
she will commit another crime during probation. (Cabatingan v. Sandiganbayan, G.R. No. L-55333,
January 22, 1981).
Issuing subject 54 bouncing checks is a serious offense. (B.P. Blg. 22). To allow petitioner to be placed on
probation would be to “depreciate the seriousness of her malefactions. (Santos v. Hon CA, and Castro,
G.R. No. 127899, December 2, 1999).
On the other hand, the nature of crime of estafa through the issuance of one bouncing check could not
be the basis of declaring that placing the offender on probation will depreciate the seriousness of the
crime. (To v. Hon Cruz-pano, January 17, 1983).
Accused was charged with consented abduction by a 17year-old complainant. The accused made a
wedding arrangement with the girl, but her parents insisted on the prosecution of the case.
To avoid further embarrassment of a court trial for him and the girl, the accused entered a plea of guilty.
He then filed a petition for probation before serving sentence, but the court denied the petition on the
ground that: it would be better for the accused to serve sentence so that he would reform himself and
avoid the scandal in the community that would be caused by the grant of the petition”.
Trial Court gravely abused its discretion in not granting probation. Taking into consideration of the
circumstances that the accused shows remorse by making wedding arrangements with the girl and by
confessing to the crime, and he is not disqualified to apply for probation, it would be for the best
interest
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of the criminal system to place him on probation. (Ballete, jr. v. Leviste, G.R. No. L-49907,
August21,1979).
DISQUALIFIED OFFENDERS :
The benefits of probation law shall not be extended to:
1. Those sentenced to serve a maximum term of imprisonment of more than six
years. (Section 9 of P.D. No. 968) unless the crime involved is possession or use of
Dangerous Drugs committed by the first time Minor Offender. ( Section 70 of R.A.
No. 9165);
2. Those convicted of any crime against National Security;
3. Those who have been previously convicted by final judgment of an offense
punished by imprisonment of more than six months and one day and/or a fine of
more than P1,000;
4. Those who have been once on probation;
5. Those who are already serving sentence at the time the substantive provisions of
the law became applicable. ( Section 9, P.D. No. 968, as amended by R.A. No.
10707); and
6. Those convicted of dangerous drug trafficking or pushing. (Section 24 of R.A. No.
9165).
NON-PROBATIONABLE PENALTY:
One who is sentenced to suffer a penalty of more than six years is not qualified to apply for probation.
( Section 9, P.D. No. 968).
A penalty of six years and one day of imprisonment (Palo v. Militnate, G.R. No. 76100, April 18, 1990), or
life imprisonment is not probationable.
The policy consideration on the disqualification is the seriousness of the crime committed as would bring
it outside the beneficent objective of law. (Amandy v. People, G.R. No. L-76258, May 23, 1988).
The accused is eligible for probation if the prescribed penalty, reclusion temporal, was reduced to
prision correccional because of the rules on graduation involving minority, and special mitigating
circumstance.
The accused is not eligible for probation if the imposable penalty is prision mayor, which was reduced
from reclusion temporal by reason of minority.
R.A. No. 9344 nowhere allows the trial and appellate courts the discretion to reduce the penalty to six
years, which is outside the range of prision mayor, even for the sake of enabling the child in conflict with
the law to qualify for probation. ( Hubilla v. People, G.R. No. 176102, November 26, 2014).
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To determine whether or not the penalty exceeds six years of imprisonment, the maximum
indeterminate penalty should be considered. Thus, one who is sentenced to suffer two years of prision
correccional as minimum to six years and one day of prision mayor as maximum, is not entitled to apply
for probation because the maximum penalty exceeds six years of imprisonment.
To determine whether the accused is eligible or disqualified for probation, multiple prison terms
imposed “in one decision in a consolidated cases” involving several offenses should not be added up.
The multiple prison terms are distinct from each other, and if none of the terms exceeds six years, he is
entitled to probation. (Fancisco v. CA, G.R. No. 108747, April 6, 1995). The rule on disqualification by
reason of previous sentence will not apply because technically the accused has no previous sentence
where the cases are consolidated.
However, if the multiple prison terms are imposed in different decisions, his previous sentence will
disqualify him to apply for probation if the penalty imposed is more than six months and one day of
imprisonment or a fine of more than P1,000.
NATIONAL SECURITY:
Those who are convicted of crimes against national security and public order are disqualified to apply for
probation. Crimes against national security include: Treason, Misprision of Treason, Conspiracy and
Proposal to Commit Treason, Espionage, Inciting to War, or Giving Motives For Reprisal, Violation of
Neutrality, Correspondence with Hostile Country, and Flight to Enemy’s Country.
Under Section 9 of P.D. No. 968, as amended by P.D. No. 1990, crimes against Public Order are not
probationable. The penalties for Alarm and Scandal and Direct Assault do not exceed six years of
imprisonment. But Direct Assault and Alarm and Scandal were not probationable because these are
crimes against Public Order.
However, R.A. No. 10707 has amended P.D. NO. 968 by deleting crime against Public Order in Section 9
thereof. In sum, under the present law on probation, crimes against Public Order such as Alarm and
Scandal and Direct Assault are now probationable.
Rebellion is a crime against Public Order and not crime against National Security. But is not
probationable since the penalty prescribed for it is higher than six years of imprisonment.
PREVIOUS CONVICTION:
Under Section 9 of P.D. No. 968, the benefits of probation would not extend to those who have been
previously convicted by final judgment of an offense punished by imprisonment of not less than one
month and one day and /or a fine of not less than P200.
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However, R.A. 10707 has increased the penalty for offense under previous conviction, with will
constitute as bar to probation for the offense under the present conviction.
Under P.D. No. 968, as amended by R.A. 10707, the benefits of probation shall not extend to those who
have been previously convicted by final judgment of an offense punished by imprisonment of more than
six months and one day and/or a fine of more than P1000.
But even though the penalty for the offense under previous conviction is lesser than that as stated
above, one cannot avail of probation for the offense under present conviction if he already availed of
the benefit of probation for the previous offense.
PERIOD OF PROBATION:
The period of probation of a defendant sentenced to a term of imprisonment of not more than one year
shall not exceed two years.
In all cases, said period shall not exceed six years. When the sentence imposes a fine only and the
offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall
not be less than or more than twice the total number of days of subsidiary imprisonment. (Section 14 of
P.D. No. 968).
ARREST OF THE PROBATIONER:
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 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.
( Section 15 of P.D. No. 968).
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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.
Thus, the court may revoke probation for failure of the offender to submit the required programs or
payment of his civil liability to the heirs of the deceased victim. (Soriano v. CA, G.R. No. 123936, March
4, 1999 or for continuing his activities of falsifying public or official documents. (Bala v. Martinez, G.R.
No. 67301, January 29, 1990).
The period for which the accused has undergone probation cannot be deducted from the imposed
penalty because an of placing the defendant on “probation” is not a “sentence”, but is in effect a
suspension of the execution of the sentence. (Bala v. Martinez, supra).
EXPIRATION OF THE PERIOD:
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 co-terminus with its period. There must first be an issuance by the court of 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, G.R.
No. 67301, January 29, 1990).
TERMINATION OF PROBATION:
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.
(Section 16 of P D. No. 968 ).
END OF MANUSCRIPT ON PROBATION, P.D. No. 968, AS AMENDED BY R.A. No. 10707
J/DIRECTOR ROMEO L. OGOY, TLPE (Ret.)
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