Convict can’t apply for probation if his case is under appeal

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Persida Acosta

Persida Acosta

Dear PAO,
I was convicted by the Regional Trial Court for a certain offense and was sentenced to suffer reclusion perpetua. At present, I am serving my sentence at the New Bilibid Prisons in Muntinlupa City (Metro Manila). Before my transfer here to the national penitentiary, I instructed my lawyer to elevate my case before the Court of Appeals, but I am now contemplating of withdrawing such appeal because I was informed that I cannot apply for probation if there is a pending appeal. Is this true?
Siano

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Dear Siano,
Yes, that is correct. Under Section 4 of Presidential Decree 968, as amended, it is provided, “Xxx the court may, after it shall have convicted and sentenced a defendant 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 an 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.” (Emphasis supplied)

Correlative to the above-mentioned provision is Section 9 of the same law which states that “the benefits of this decree shall not be extended to those: a) sentenced to serve a maximum term of imprisonment of more than six (6) years; b) convicted of subversion or any crime against the national security or the public order; c) who have previously been convicted by final judgement of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than two hundred pesos; d) who have been once on probation under the provisions of this decree; and e) who are already serving sentence at the time the substantive provisions of this decree became applicable pursuant to Section 33 hereof.” (Emphasis supplied)

In your situation, your application for probation will not be granted not only because of your pending appeal but also because of the fact that you are serving a maximum term of imprisonment of more than six (6) years.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

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

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