Colinares vs People

182748 / December 13, 2011 / Abad, J.

Topic: Appeals; Probation Law
Doctrine:
1. The Probation Law, said the Court in Francisco, requires that an accused must not have appealed his conviction before
he can avail himself of probation.
2. Probation is not a right granted to a convicted offender, the Probation Law is not a penal law for it to be liberally
construed to favor the accused.
3. Originally, PD 968 allowed the filing of an application for probation even if an appeal had been perfected by the
convicted
Facts:
Accused-appellant Arnel Colinares (Arnel) was charged with frustrated homicide for hitting the head of the private
complainant with a piece of stone. He alleged self-defense but the trial court found him guilty of the crime charged and
sentenced him to suffer imprisonment from 2 years and 4 months of prision correccional, as minimum, to 6 years and 1
day of prision mayor, as maximum. Since the maximum probationable imprisonment under the law was only up to 6
years, Arnel did not qualify for probation.
Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser
crime of attempted homicide with the consequent reduction of the penalty imposed on him. His conviction was
affirmed by the CA. Hence, this appeal to the Supreme Court.
Issue: Given a finding that Arnel is entitled to conviction for a lower [lesser] offense [of attempted homicide] and a
reduced probationable penalty, may he may still apply for probation on remand of the case to the trial court?
Held:
[The Supreme Court voted to PARTIALLY GRANT the appeal, MODIFIED the CA decision and found Arnel GUILTY of
ATTEMPTED (not frustrated) HOMICIDE and SENTENCED him to and indeterminate but PROBATIONABLE penalty of 4
months of arresto mayor as minimum and 2 years and 4 months of prision correccional as maximum. The Court also
voted 8-7 to allow Arnel to APPLY FOR PROBATION within 15 days from notice that the record of the case has been
remanded for execution to trial court.]
YES, Arnel may still apply for probation on remand of the case to the trial court.
Ordinarily, Arnel would no longer be entitled to apply for probation, he having appealed from the judgment of the
RTC convicting him for frustrated homicide. But, the Court finds Arnel guilty only of the lesser crime of attempted
homicide and holds that the maximum of the penalty imposed on him should be lowered to imprisonment of four
months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum. With
this new penalty, it would be but fair to allow him the right to apply for probation upon remand of the case to the
RTC.
[W]hile it is true that probation is a mere privilege, the point is not that Arnel has the right to such privilege; he
certainly does not have. What he has is the right to apply for that privilege. The Court finds that his maximum jail
term should only be 2 years and 4 months. If the Court allows him to apply for probation because of the lowered
penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into
account the full circumstances of his case.
If the Court chooses to go by the dissenting opinions hard position, it will apply the probation law on Arnel based on
the trial courts annulled judgment against him. He will not be entitled to probation because of the severe penalty
that such judgment imposed on him. More, the Supreme Courts judgment of conviction for a lesser offense and a
lighter penalty will also have to bend over to the trial courts judgmenteven if this has been found in error. And,
worse, Arnel will now also be made to pay for the trial courts erroneous judgment with the forfeiture of his right to
apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the
whip). Where is justice there?
Here, Arnel did not appeal from a judgment that would have allowed him to apply for probation. He did not have a
choice between appeal and probation. He was not in a position to say, By taking this appeal, I choose not to apply
for probation. The stiff penalty that the trial court imposed on him denied him that choice. Thus, a ruling that
would allow Arnel to now seek probation under this Courts greatly diminished penalty will not dilute the sound
ruling in Francisco. It remains that those who will appeal from judgments of conviction, when they have the option
to try for probation, forfeit their right to apply for that privilege.
In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide, but only of attempted homicide,
is an original conviction that for the first time imposes on him a probationable penalty. Had the RTC done him right
from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two
years and four months maximum. This would have afforded Arnel the right to apply for probation.

DISSENTING and CONCURRING OPINION
PERALTA, J.:
In view of the provision in Section 4 of the Probation Law that no application for probation shall be entertained or
granted if the defendant has perfected an appeal from the judgment of conviction, prevailing jurisprudence treats
appeal and probation as mutually exclusive remedies because the law is unmistakable about it.
However, it has been proposed that an appeal should not bar the accused from applying for probation if the appeal is
solely to reduce the penalty to within the probationable limit, as this is equitable. In this regard, an accused may be
allowed to apply for probation even if he has filed a notice of appeal, provided that his appeal is limited to the following
grounds:
1. When the appeal is merely intended for the correction of the penalty imposed by the lower court, which when
corrected would entitle the accused to apply for probation; and
2. When the appeal is merely intended to review the crime for which the accused was convicted and that the accused
should only be liable to the lesser offense which is necessarily included in the crime for which he was originally convicted
and the proper penalty imposable is within the probationable period.
In both instances, the penalty imposed by the trial court for the crime committed by the accused is more than six years;
hence, the sentence disqualifies the accused from applying for probation. Thus, the accused should be allowed to file an
appeal under the aforestated grounds to seek a review of the crime and/or penalty imposed by the trial court. If, on
appeal, the appellate court finds it proper to modify the crime and/or the penalty imposed, and the penalty finally
imposed is within the probationable period, then the accused should be allowed to apply for probation.
In addition, before an appeal is filed based on the grounds enumerated above, the accused should first file a motion for
reconsideration of the decision of the trial court anchored on the above-stated grounds and manifest his intent to apply
for probation if the motion is granted. The motion for reconsideration will give the trial court an opportunity to review
and rectify any errors in its judgment, while the manifestation of the accused will immediately show that he is agreeable
to the judgment of conviction and does not intend to appeal from it, but he only seeks a review of the crime and/or
penalty imposed, so that in the event that the penalty will be modified within the probationable limit, he will apply for
probation.
It is believed that the recommended grounds for appeal do not contravene Section 4 of the Probation Law, which
expressly prohibits only an appeal from the judgment of conviction. In such instances, the ultimate reason of the
accused for filing the appeal based on the aforestated grounds is to determine whether he may avail of probation based
on the review by the appellate court of the crime and/or penalty imposed by the trial court. Allowing the aforestated
grounds for appeal would give a qualified convicted offender the opportunity to apply for probation if his ground for
appeal is found to be meritorious by the appellate court, thus, serving the purpose of the Probation Law to promote the
reformation of a penitent offender outside of prison.
On the other hand, probation should not be granted to the accused in the following instances:
1. When the accused is convicted by the trial court of a crime where the penalty imposed is within the probationable
period or a fine, and the accused files a notice of appeal; and
2. When the accused files a notice of appeal which puts the merits of his conviction in issue, even if there is an
alternative prayer for the correction of the penalty imposed by the trial court or for a conviction to a lesser crime, which
is necessarily included in the crime in which he was convicted where the penalty is within the probationable period.
There is wisdom to the majority opinion, but the problem is that the law expressly prohibits the filing of an application
for probation beyond the period for filing an appeal. When the meaning is clearly discernible from the language of the
statute, there is no room for construction or interpretation. Thus, the remedy is the amendment of Section 4 of P.D. No.
968, and not adaptation through judicial interpretation.

CONCURRING AND DISSENTING OPINION
VILLARAMA, JR., J.:
It must be stressed that in foreclosing the right to appeal his conviction once the accused files an application for
probation, the State proceeds from the reasonable assumption that the accuseds submission to rehabilitation and
reform is indicative of remorse. And in prohibiting the trial court from entertaining an application for probation if the
accused has perfected his appeal, the State ensures that the accused takes seriously the privilege or clemency extended
to him, that at the very least he disavows criminal tendencies. Consequently, this Courts grant of relief to herein
accused whose sentence was reduced by this Court to within the probationable limit, with a declaration that accused
may now apply for probation, would diminish the seriousness of that privilege because in questioning his conviction
accused never admitted his guilt. It is of no moment that the trial courts conviction of petitioner for frustrated
homicide is now corrected by this Court to only attempted homicide. Petitioners physical assault on the victim with
intent to kill is unlawful or criminal regardless of whether the stage of commission was frustrated or attempted only.
Allowing the petitioner the right to apply for probation under the reduced penalty glosses over the fact that accuseds
availment of appeal with such expectation amounts to the same thing: speculation and opportunism on the part of the
accused in violation of the rule that appeal and probation are mutually exclusive remedies.