Alexandra G.

Garcia
JD 1-1

G.R. No. 182748.

December 13, 2011.

ARNEL COLINARES, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

As provided in Presidential Decree No. 968, "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.” It is an act of grace and clemency or immunity

conferred by the State, which is granted to a deserving defendant who does not possess any of

the disqualification, who thereby escapes the rigors of the penalty imposed by law for the offense

of which he was convicted. As dictated by previous court decisions, it is a privilege, not a right,

granted by the State to an accused.

From the very wordings of the law, once the accused has perfected an appeal, he waives

his right to apply for a probation. This paper, then, aims to criticize the decision of the honorable

Supreme Court on the case of Arnel Colinares vs. People of the Philippines where the Court

allowed the accused to apply for probation after appealing the decision of the Court of Appeals

and the Regional Trial Court of San Jose, Camarines Sur.

On July 1, 2005 the RTC rendered judgment, finding Arnel Colinares guilty beyond

reasonable doubt of frustrated homicide and sentenced him to suffer imprisonment from two

years and four months of prision correccional, as minimum, to six years and one day

of prision mayor, as maximum. Since the maximum probationable imprisonment under the law

was only up to six 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. The Court of Appeals entirely affirmed the decision of the Regional

Trial Court but deleted the award for lost income in the absence of evidence to support it. Having

been unsatisfied of the decision, the case in subject emerges as a petition to review the above

decision.

The Supreme Court held that Colinares is only guilty 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 Regional Trial court but the writer of

this paper disagrees with the majority decision for the following reason to be discussed in the

next paragraphs.

First, a clear reading of the wording of the law shows the clear meaning of the Probation

Law. The accused Arnel Colinares should not be allowed to apply for probation because of his

act of appealing the decision of the court because according to the Section 4 of the Probation

law:

Section 4. Grant of Probation. Subject to the provisions of this Decree, the court may, after it

shall have convicted and sentenced a defendant and upon application at any time of said

defendant, suspend the execution of said sentence and place the defendant on probation for such

period and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.

An application for probation shall be filed with the trial court, with notice to the appellate court if
 an appeal has been taken from the sentence of conviction. The filing of the application shall be

deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal.

An order granting or denying probation shall not be appealable.

It is a settled rule in statutory construction that the primary rule in addressing any

problem relating to the understanding or the interpretation of a law is to examine the law itself to

see what is plainly says. Echoing the provision of the law, “The filing of the application shall be

deemed a waiver of the right to appeal, or the automatic withdrawal of a pending appeal.” This

means that the law intended for the probation and applying for an appeal to be a mutually

exclusive remedy, just as what previous jurisprudence held. Any person then should not be

allowed to qualify for probation if he has perfected an appeal.

Originally, the Probation Law allowed the convicted to still qualify for probation after

perfecting an appeal when Section 4 of P.D. No. 968 was amended by P.D. No. 1257. But since

it has been a practice for the convicted to use the two remedies to arrive at an acquittal, the

amendment made by P.D. No. 1990 to the Section 4 of P.D. No. 968 started to restrict the

application of probation if the accused has made an appeal from the judgment of probation and

the ratio behind that is laid down in the preamble of P.D. No. 1990:

WHEREAS, it has been the sad experience that persons who are convicted of offenses and who

may be entitled to probation still appeal the judgment of conviction even up to the Supreme Court,

only to pursue their application for probation when their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too

much time and effort, not to mention the huge expenses of litigation, on the part of the State;
 WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting

accused persons from the lower courts up to the Supreme Court, are oftentimes rendered nugatory

when, after the appellate Court finally affirms the judgment of conviction, the defendant applies for

and is granted probation;

WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct

and delay the administration of justice, but should be availed of at the first opportunity by offenders

who are willing to be reformed and rehabilitated;

WHEREAS, it becomes imperative to remedy the problems abovementioned confronting our

probation system.

In the present case, by appealing the court’s decision, Colinares has already wasted the

time, effort, and expenses of the Government by perfecting an appeal, hence defeating the

purpose of the law found in the preamble thus Colinares must not be allowed to qualify for

probation. Furthermore, it should be sought for at the very first opportunity, not to be an escape

hatch, with spontaneity with the goal of reformation, rehabilitation, and remorse, as extracted

from the fourth paragraph of preamble.

Second, it is a privilege, not a right if the convicted. It not being a right, the Court shall

not grant it to the convicted as if it is. Probation is a mere privilege granted to the convicted and

exercised primarily for the benefit of organized society, and only incidentally for the benefit of

the accused.

Third, in its decision, the Court explained that Colinares should be allowed to apply for

probation because the trial court imposed a wrong penalty which is beyond the probationable

range, thus restricting the accused from the benefits of the probation when he appealed. In this

case, the accused claimed that the present evidence at best, warranted his conviction only for
attempted, not frustrated homicide, the majority of the Supreme Court believed that Colinares, in

effect, aimed to lower down the penalty as to qualify him for probation, hence, should be

allowed to qualify for probation after the lowered penalty. Such exception is not found in the

law, and when the law does not distinguish, the Court shall not also distinguish. Moreover, it is

contrary to the intent of the law as found in its preamble.

Fourth, the probation law is not a criminal law for it to be construed liberally in favor of

the accused. It is already settled in Pablo v. Castillo that the Probation Law is not a penal statute

hence, it should not be liberally construed in favor of the accused and strictly against the State.

The Court made it an issue of fairness and justice but it should not be. The accused has rightfully

achieved his remedy of applying for an appeal and in result, lowering his penalty. He, then,

should not be allowed to apply for probation because he has already chosen one of the remedies

provided to him by the State.

Fifth, it is with good intention of this writer to believe that the Court should refrain from

a judicial legislation, an act which should be left to the congress. The right and proper remedy is

an amendment to the law which is under the jurisdiction of the legislature. The argument of the

majority of the honorable justices that Colinares should be allowed to apply for probation after

perfecting an appeal because he only appealed the penalty imposed upon him and not the

conviction of judgment is without merit. Since the law clearly reads that applying for probation

is not allowed if the accused has perfected an appeal, the Court shall not commit a judicial

legislation in the mask of constructing the meaning of the law. The proper remedy, if the State

really wants to allow an accused to still apply for probation if the appeal is only to lower his

penalty, should be left to the legislative department to amend the law.

of the accused in violation of the rule that appeal and probation are mutually exclusive remedies.

Echoing Justice Villarama, Jr. in his concurring and dissenting opinion in the case, the State

assumes that the application for probation of an accused, thereby waiving his right to appeal,

shows his submission to rehabilitation and reformation and consequently, remorse for the crime

committed. The goal of the prohibition of the system from allowing the application for probation

if the accused has perfected an appeal is to ensure that the convicted absorbs the privilege or

clemency bestowed upon him, that at the very least he disavows criminal tendencies. Therefore,

it is just right and proper that the decision of the majority in this case would decrease the

seriousness of the privilege for the reason that in the act of the accuse in questioning the decision

of the trial court, Colinares never professed his guilt. The fact that the trial court made a wrong

conviction is immaterial because his act of physical assault with intent to kill is unlawful or

criminal regardless if it is frustrated or attempted only in terms of the stage of commission. The

persistent decision of the court to allow the petitioner to apply for probation under the new

penalty imposed by the Supreme Court points to the opportunism on the part of the accused in

violation of the rule that appeal, and probation are mutually exclusive remedies.

It is for these reasons that the writer of this paper respectfully disagrees with the majority

decision of the Supreme Court and concurs with the dissenting opinion of Justice Villarama, Jr.

in the case of Colinares vs. People of the Philippines.