2013 (Criminal Law) Bar Exam Questions: Multiple Choice Question 24

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Andres was convicted of frustrated homicide and was sentenced to6 years and 1 day as minimum, to 8 years of prision mayor as maximum.Andres appealed his conviction to the Court of Appeals, which convicted him of attempted homicide, and sentenced him to 6 months of arresto mayor as minimum, to 4years of prision correccional as maximum.

Instead of appealing his conviction, Andres filed an application for probation with the Regional Trial Court. Is Andres qualified to avail of the benefits of the probation law? (1%)

(A) No, because when he filed a notice of appeal with the Court of Appeals, he waived
his right under the probation law.

(B) Yes, because after his appeal, he qualified for probation as the sentence imposed on him was less than 6 years.

(C) Yes, because the probation law is meant to favor the accused.

(D) No, because his previous sentence of more than 6 years disqualified him so that he can no longer avail of probation as an alternative remedy.

(E) None of the above.


  1. B. The Supreme Court in a landmark case of Colinares v. People, may have qualified its earlier ruling enunciated in De los Santos and Francisco and held that even if the accused who made an appeal, he can still apply for a probation, if there was no fault on his part.

    In this case, the Regional Trial Court (RTC) rendered judgment, finding the accused 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, accused did not qualify for probation.

    Accused 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 CA entirely affirmed the RTC decision but deleted the award for lost income in the absence of evidence to support it. Not satisfied, accused went to the Supreme Court on petition for review.

    In the course of its deliberation on the case, the Court required the accused and the Solicitor General to submit their respective positions on whether or not, assuming accused committed only the lesser crime of attempted homicide with its imposable penalty of imprisonment of four months of arresto mayor, as minimum, to two years and four months of prision correccional, as maximum, he could still apply for probation upon remand of the case to the trial court.

    Both complied with accused taking the position that he should be entitled to apply for probation in case the Court metes out a new penalty on him that makes his offense probationable. The language and spirit of the probation law warrants such a stand. The Solicitor General, on the other hand, argued that under the Probation Law no application for probation can be entertained once the accused has perfected his appeal from the judgment of conviction.

    The issue is that given a finding that the accused is entitled to conviction for a lower offense and a reduced probationable penalty, whether or not he may still apply for probation on remand of the case to the trial court.

    The Supreme Court held in the affirmative. Ordinarily, accused would no longer be entitled to apply for probation, he having appealed from the judgment of the RTC convicting him for frustrated homicide. But, the Supreme Court found the accused guilty only of the lesser crime of attempted homicide and held 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 RTC.

    Some in the Supreme Court disagreed. They contended that probation is a mere privilege granted by the state only to qualified convicted offenders. Section 4 of the probation law (PD 968) provides: “That no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction. Since the accused appealed his conviction for frustrated homicide, he should be deemed permanently disqualified from applying for probation.

    But, firstly, while it is true that probation is a mere privilege, the point is not that the accused had the right to such privilege; he certainly did not have. What he had was the right to apply for that privilege. The Court noted that his maximum jail term should only be 2 years and 4 months. If the Court allowed him to apply for probation because of the lowered penalty, it is still up to the trial judge to decide whether or not to grant him the privilege of probation, taking into account the full circumstances of his case.

    Secondly, it is true that under the probation law the accused who appeals “from the judgment of conviction” is disqualified from availing himself of the benefits of probation. But, as it happens, two judgments of conviction have been meted out to the accused: one, a conviction for frustrated homicide by the regional trial court, now set aside; and, two, a conviction for attempted homicide by the Supreme Court. If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on the accused based on the trial court’s annulled judgment against him. He will not be entitled to probation because of the severe penalty that such judgment imposed on him.

    Moreover, the Supreme Court’s judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial court’s judgment—even if this has been found in error. And, worse, Arnel will now also be made to pay for the trial court’s erroneous judgment with the forfeiture of his right to apply for probation. As clearly stated by Justice Abad: “Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the horse errs, the carabao gets the whip). Where is justice there?”

    It also declared that had the RTC done what was right and imposed on the accused the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable.

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