Bernardo vs. Balagot

A convicted defendant who has perfected an appeal from the judgment of conviction is disqualified from applying for probation under Section 4 of P.D. 968 as amended by P.D. 1990, and the amendment applies to all probation applications filed after its effectivity.

P.D. 968 (the Probation Law), promulgated on July 24, 1976, originally allowed a convicted defendant to apply for probation even if he had appealed his conviction, treating the filing of the application as a waiver of the right to appeal or automatic withdrawal of a pending appeal. This provision was amended by P.D. 1257 on December 1, 1977, but retained the same essential rule. On October 5, 1985, P.D. 1990 further amended Section 4 to make appeal and probation mutually exclusive, providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." P.D. 1990 was published in the Official Gazette on December 30, 1985, and took effect on January 15, 1986. Its transitory provision (Section 3) exempted only those who had already filed their probation applications at the time of its effectivity.

Pablo Bernardo was convicted of estafa in the Municipal Trial Court of San Antonio, Nueva Ecija, on September 5, 1984, and sentenced to 1 year, 8 months and 21 days of prision correccional as minimum to 2 years, 11 months and 10 days of prision correccional medium as maximum, with accessory and other penalties. He appealed to the Regional Trial Court of Nueva Ecija, which affirmed the decision with modifications. On April 25, 1985, he filed a petition for review with the Court of Appeals, which on December 24, 1985 sustained the appealed decision with modifications. On January 17, 1986, he filed a motion for new trial and/or reconsideration, which was denied. He then filed a petition for review with the Supreme Court on November 16, 1986, which was likewise denied.

While his motion for new trial and/or reconsideration was pending before the Court of Appeals, Bernardo filed an application for probation dated February 3, 1986. The application was referred to the Probation Officer of Nueva Ecija, who recommended its approval. On October 11, 1987, Municipal Judge Francisco R. Andres denied the application, relying on Section 4 of P.D. 968 as amended by P.D. 1990 — which prohibits the grant of probation to an applicant who has appealed his conviction — and also on Bernardo's unsatisfactory conduct.

On February 1, 1988, Bernardo elevated the matter to the Regional Trial Court via a petition for certiorari with prayer for a restraining order. The petition was denied on August 17, 1988, and the motion for reconsideration was denied on January 9, 1989. Bernardo then filed the present petition with the Supreme Court seeking reversal of the respondent judge's denial. The respondent judge had denied probation on the ground that the offense of estafa involved betrayal of trust, that the petitioner had misled the court by alleging that an application for probation had been filed when the records did not show it, and that the appeals taken by the petitioner after his conviction were sufficient basis for denial.

• Non-retroactivity of P.D. 1990: Petitioner contended that the amendment to Section 4 of P.D. 968 by P.D. 1990 should not apply to him because at the time of his conviction in 1984, he was allowed to appeal without forfeiting his right to apply for probation, and he had no foreknowledge that the law would be amended.
• Effect of probation application on appeal: Petitioner argued that his conviction was not yet final, having been brought up on appeal, and that the filing of his application for probation had the effect of withdrawing said appeal.
• Grave abuse of discretion: Petitioner imputed grave abuse of discretion to the respondent judge for denying his application on the ground of betrayal of trust, arguing that this was not a legal or justifiable ground because he was not among the disqualified offenders listed in Section 9 of P.D. 968.
• First offender status and liberality: Petitioner invoked his status as a first offender and a policy of liberality in the application of the probation law.

• Applicability of P.D. 1990: The Solicitor General argued that at the time Bernardo applied for probation on February 3, 1986, P.D. 968 had already been amended by P.D. 1990, the purpose of which was precisely to prohibit an application for probation if the accused had perfected an appeal from the judgment of conviction.
• Transitory provision: The Solicitor General pointed to Section 3 of P.D. 1990, which exempts only those who had already filed their probation applications at the time of the decree's effectivity — a category into which Bernardo did not fall, since P.D. 1990 took effect on January 15, 1986, before his February 3, 1986 application.

• Applicability of the Amendment: Whether Section 4 of P.D. 968 as amended by P.D. 1990, which makes appeal and probation mutually exclusive, applies to a petitioner who was convicted before the amendment took effect but filed his application for probation after its effectivity.
• Discretion of the Trial Court: Whether the trial court committed grave abuse of discretion in denying the application for probation on the ground of betrayal of trust and the petitioner's misrepresentation regarding the filing of his application.

• Applicability of the Amendment: Yes. P.D. 1990 applies because the petitioner filed his probation application on February 3, 1986, after the amendment took effect on January 15, 1986, and he was not among those who had already filed applications before its effectivity.
• Discretion of the Trial Court: No grave abuse of discretion was committed that would warrant reversal, as the grant or denial of probation rests on the court's discretion; however, even assuming arguendo that there was abuse, the petition was still correctly dismissed due to the amended Section 4 of P.D. 1990.

• Applicability of the Amendment: P.D. 1990 was promulgated on October 5, 1985, published in the Official Gazette on December 30, 1985, and took effect on January 15, 1986, after fifteen days from publication. The petitioner's application for probation was filed on February 3, 1986 — after the law had become effective. Section 3 of P.D. 1990 expressly provides that the amended Section 4 "shall not apply to those who have already filed their respective applications for probation at the time of the effectivity of this Decree." Since Bernardo filed after the effectivity date, he could not invoke the original Section 4 of P.D. 968. The amendment was designed to prevent the wasteful scenario where a convict exhausts the appellate process and then applies for probation, effectively undoing the affirmance. The petitioner's theory that filing the probation application withdrew his appeal and rendered his conviction non-final was rejected as it would render P.D. 1990 completely inutile and defeat the very purpose for which the original rule was modified — through the very act the amendment prohibits.

• Discretion of the Trial Court: Probation is a mere privilege, and its grant rests upon the discretion of the court. Even if a convicted person is not among the disqualified offenders enumerated in Section 9, the grant of probation is not automatic or ministerial. The court must consider the potentiality of the offender to reform, the demands of justice and public interest, and other relevant circumstances. The municipal judge noted that the petitioner had misrepresented that he had earlier filed his application for probation when he had not done so. The favorable recommendation of the probation officer is merely persuasive, not binding. First-offender status does not necessarily entitle the applicant to probation, though it is a factor for consideration. The policy of liberality cannot prevail against the categorical provisions of the law. At any rate, even assuming grave abuse of discretion, the petition was still correctly dismissed because of the amended Section 4 of P.D. 1990.

• Mutual Exclusivity of Appeal and Probation — Under P.D. 968 as amended by P.D. 1990, appeal and probation are mutually exclusive remedies; a defendant who has perfected an appeal from the judgment of conviction is barred from applying for probation. The amendment applies to all applications filed after its effectivity, with a transitory provision exempting only those who had already filed applications before the law took effect.
• Probation as a Privilege, Not a Right — Probation is a mere privilege, and its grant or denial rests upon the discretion of the court. Even if the applicant is not among the disqualified offenders under Section 9 of P.D. 968, the grant is not automatic or ministerial; the court must consider the potentiality of reform, the demands of justice and public interest, and other relevant circumstances.
• Probation Officer's Recommendation is Merely Persuasive — The favorable recommendation of the probation officer is at best merely persuasive upon the courts in the consideration of an application for probation, and is not binding.

• "P.D. 1990 was issued when it was observed that even if a person's conviction was finally affirmed after he had exhausted the appeal process (usually up to this Court), he nevertheless could still apply for probation and thus in effect undo such affirmance. To prevent loss of time, money, and effort on the part of the State in this wasteful exercise, the law was amended to make appeal and probation mutually exclusive remedies." — This passage articulates the legislative purpose behind P.D. 1990 and explains why the Court rejected the petitioner's attempt to invoke the old rule.

• "Acceptance thereof would render the amendment of P.D. 1990 completely inutile and defeat the very purpose for which the original rule was modified and through the act itself that is prohibited by the amendment." — This statement rejects the petitioner's theory that filing a probation application withdraws a pending appeal, explaining that such an interpretation would nullify the amendment through the very conduct it prohibits.

• "Probation is a mere privilege and its grant rests upon the discretion of the court. Even if a convicted person is not included in the list of offenders disqualified from the benefits of the decree, the grant of probation is nevertheless not automatic or ministerial." — This formulation defines the doctrinal status of probation as a privilege subject to judicial discretion, not a right automatically available to those not disqualified.

• Santos To vs. Paño, 120 SCRA 8 (1983) — Cited by the petitioner for the proposition that the express enumeration of disqualified offenders indicates the legislative intent to allow probation benefits to those not included. The Court acknowledged this principle but clarified that even for non-disqualified offenders, the grant of probation is discretionary, not automatic.

• Amandy vs. People, 161 SCRA 436 (1988) — Cited in footnote 3 for the proposition that the probation officer's recommendation is merely persuasive upon the courts.

• Tolentino vs. Alconcel, 121 SCRA 92 (1983) — Cited in footnote 3 alongside Amandy for the same proposition regarding the persuasive, non-binding nature of the probation officer's recommendation.

• Section 4, P.D. 968 (as originally promulgated, July 24, 1976) — Allowed probation even if the defendant had appealed, with the filing of the application deemed a waiver of the right to appeal or automatic withdrawal of a pending appeal. This was the law in force at the time of the petitioner's conviction in 1984.

• Section 4, P.D. 968 (as amended by P.D. 1257, Dec. 1, 1977) — Retained the rule that filing an application for probation constitutes a waiver of appeal or withdrawal of a pending appeal, with an added proviso that if the application is filed on or after the date of the appellate court's judgment, the trial court acts on the basis of the appellate court's judgment.

• Section 4, P.D. 968 (as amended by P.D. 1990, Oct. 5, 1985) — Made appeal and probation mutually exclusive by providing that "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction." This was the law in force at the time the petitioner filed his probation application on February 3, 1986.

• Section 3, P.D. 1990 — Transitory provision stating that the amended Section 4 "shall not apply to those who have already filed their respective applications for probation at the time of the effectivity of this Decree." The Court held that the petitioner did not fall under this exemption.

• Section 9, P.D. 968 (as amended by B.P. Blg. 76 and P.D. 1990) — Enumerates disqualified offenders: those sentenced to more than six years, convicted of subversion or crimes against national security or public order, previously convicted by final judgment, previously on probation, or already serving sentence. The petitioner was not among these, but the Court held this did not entitle him to probation as a matter of right.

Padilla, Griño-Aquino, and Bellosillo, JJ., concurred.