D E C I S I O N
ABAD, J.:
I.
THE 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.
II.
THE ISSUES
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?
III.
THE RULING
[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 opinion’s hard position, it will apply the probation law on Arnel
based on the trial court’s 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 Court’s judgment of conviction for
a lesser offense and a lighter penalty will also have to bend over to the trial
court’s judgment—even if this has been found in error. And, worse,
Arnel will now also be made to pay for the trial court’s 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 Court’s
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 Court’s
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 accused’s 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 Court’s 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 court’s conviction of petitioner for frustrated
homicide is now corrected by this Court to only attempted homicide. Petitioner’s
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 accused’s 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.
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