Philippine Supreme Court Resolutions > Year 2011 > March 2011 Resolutions > [G.R. No. 181306 : March 21, 2011] PATERNO DE LOS SANTOS, JR. V. COURT OF APPEALS 13TH DIVISION, ET AL.:

Please take notice that the Court, Second Division, issued a Resolution dated 21 March 2011 which reads as follows:

G.R. No. 181306 (Paterno de Los Santos, Jr. v. Court of Appeals 13th Division, et al.) - Before this Court is a petition for review on certiorari  of the Resolution dated June 18, 2007 of the Court of Appeals in CA-G.R. CR No. 20472 which denied petitioner Paterno de Los Santos, Jr.'s (petitioner) application for probation, and the Resolution dated December 10, 2007 which denied petitioner's motion for reconsideration.

On November 20, 1996, the Regional Trial Court of Cebu, Branch 58 rendered a Decision finding petitioner Paterno de los Santos, Jr. guilty of the crime of intentional abortion. Petitioner was sentenced to suffer the penalty of 6 years and one day to 8 years of prison mayor; as maximum.

Petitioner appealed his conviction to the Court of Appeals, docketed as CA-G.R. CR No. 20472. The appellate court affirmed petitioner's conviction with modification as to the penalty imposed by reducing the penalty to 6 months of arresto mayor, as minimum, to 3 years, 6 months and 21 days, as maximum.

Petitioner then filed an application for probation. In the disputed Resolution dated June 18, 2007, the appellate court denied petitioner's application. Petitioner filed a motion for reconsideration, but was likewise denied in a Resolution dated December 10, 2007. The appellate court ruled that pursuant to Section 4 of Presidential Decree No. (P.D.) 968 as amended by P.D. 1990, petitioner is ineligible to apply for probation, considering the fact that he has waived his right to avail the benefits of probation law when he appealed the judgment of conviction by the trial court.

Hence, this Petition for Review on Certiorari  under Rule 45 of the Rules of Court raising the issue of whether petitioner is entitled to the benefits of probation, considering that he had appealed his conviction, contrary to the provision of Section 4, P.D. 968, as amended by P.D. 1990.

Petitioner prays that he should be allowed to apply for probation even if he had appealed the decision of the trial court. He argues that his application should be treated as an exception to the general rule which excludes an accused who has appealed his conviction from the benefits of probation. Petitioner asserts that in his case, he only became eligible for probation only after the Court of Appeals modified the judgment of the trial court and reduced the maximum term of the penalty imposed to 3 years, 6 months and 21 days.

In its Comment, the Office of the Solicitor General (OSG), invoking Section 4 of P.D. 968, asserts the prohibition of the grant of probation to those who have appealed their conviction. Thus, when petitioner filed an appeal from the trial court's decision, he was, in effect, precluded from the benefits of probation. The OSG likewise maintained that petitioner is disqualified from availing the benefits of probation, considering that the trial court sentenced him to suffer an imprisonment of more than six (6) years which is not probationable.

The petition is without merit.

Probation is a special privilege granted by the State to a penitent qualified offender. It essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the State the time, effort and expenses to jettison an appeal.^[1]

The pertinent provision of the Probation Law, as amended, reads: 

Sec. 4. Grant of Probation. � Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best; Provided, That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction.^[2]

It is undisputed that petitioner appealed from the decision of the trial court. This fact alone merits the denial of petitioner's Application for Probation. Having appealed from the judgment of the trial court and having applied for probation only after the Court of Appeals had affirmed his conviction, petitioner was clearly precluded from the benefits of probation.^[3]

Furthermore, it was clear that when petitioner filed his appeal before the appellate court, what he was questioning was the merit of the decision convicting him and not the propriety of the penalty imposed by the trial court for the purpose of correcting a wrong penalty � to reduce it to within probational range. By perfecting his appeal, petitioner, therefore, ipso facto relinquished the alternative remedy of availing of the Probation Law.^[4]

The law expressly requires that an accused must not have appealed his conviction before he can avail himself of probation. This outlaws the element of speculation on the part of the accused � 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 hatch," 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.^[5]

Considering that the prevailing jurisprudence treats appeal and probation as mutually exclusive remedies, and petitioner opted to appeal his conviction, he, therefore, deemed to relinquish his right to the benefits of probation.

WHEREFORE, premises considered, the instant petition is DENIED. The Resolutions dated June 18, 2007 and December 10, 2007, respectively, are AFFIRMED. Nachura, J., on sabbatical leave; Velasco, Jr., J., designated additional member per S.O. No. 933 dated 24 January 2011. Mendoza, J., on leave; Brion, J., designated additional member per S.O. No. 975 dated 21 March 2011.

SO ORDERED.

Very truly yours,

MA. LUISA L. LAUREA
  Clerk of Court

By:

(Sgd.) TERESITA AQUINO TUAZON
Asst. Clerk of Court

Endnotes:

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^[1] Sable v. People, G.R. No. 177961, April 7, 2009, 584 SCRA 619, 625-626.

^[2] Emphasis supplied. 

^[3] See Lagrosa v. People, 453 Phil. 270, 275 (2003). 

^[4] Lagrosa v. People, supra, at 278. 

^[5] Sable v. People, supra note 1, at 627.