Accused can apply for probation only if he has not appealed his conviction


Persida Acosta

Dear PAO,
I was found “guilty” by the Metropolitan Trial Court in a case for multiple counts of grave oral defamation and was sentenced to a prison term of one year and one day to one year and eight months. I filed an appeal with the Regional Trial Court, which mitigated my penalty to only eight months. Afterwards, I filed an application for probation, which was denied. Was the denial of my application for probation proper?
Sincerely yours,

Dear Kenny,
For your information, “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 (Section 3 [a)] Presidential Decree [PD] 968, as amended).

There are conditions, however, upon which an application for probation may be granted, such as the following:

“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 his 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.

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. The filing of the application shall be deemed a waiver of the right to appeal.

An order granting or denying probation shall not be appealable.”(PD 968, emphasis supplied)

In the case of Pablo C. Francisco v. Court of Appeals and the Honorable Maximo C. Contreras (G.R. No. 108747, April 6, 1995; ponente: former Associate Justice Josue Bellosillo), the Supreme Court clarified that the law expressly requires that an accused must not have appealed his conviction before he can avail of probation:

“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 of time, effort and expenses to jettison an appeal. 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 — 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.”

Hence, since you have perfected an appeal to the Regional Trial Court (RTC) from your previous conviction in the Metropolitan Trial Court (MTC), you may no longer avail of probation.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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