10.
LLAMADO VS CA filed with the trial court, with notice to the appellate court if an appeal has been taken from
G.R. NO. 84850
JUNE 29, 1989
TOPIC: PROBATION LAW; PURPOSE (SEC. 2); NOT A PENAL STATUTE
PETITIONER: RICARDO LLAMADO
RESPONDENT: CA AND LEON GAW
FACTS:
1. Llamado was a treasurer of Pan-Asia Finance Corp and together w. Jacinto Pascual, the
president of the same corporation, they prosecuted for violating BP 22 as they had co-
signed a post-dated check in Gaw’s favor amounting to PhP186k but was dishonored.
2. On 3/10/1987, the TC only convicted Llamado since it could not obtain jurisdiction over
Pascual as he fled the country. He was sentenced for 1 yr and slapped w/ a PhP200k fine
w/ subsidiary imprisonment if insolvent and was to reimburse Gaw.
3. On 3/20/1987, after the TC’s decision, Llamado orally manifested that he would appeal
hence the TC forwarded the case records to the CA. He then received a notice to file an
appellant’s brief in 30 days and he secured several time extensions up until 11/18/1987.
4. Pending the finalization of his appellant’s brief, Llamado sought an advice of another
counsel. He was then assisted by his new counsel w/c then filed a petition for probation
before the RTC but was not accepted by the RTC as his case was pending in the CA hence
he filed it there. He prayed that he be granted probation or the case be remanded in the
RTC and hold in abeyance his submission of the appellant’s brief. He then withdrew his
appeal upon the approval of his probation. OSG posed no objection over it.
5. The CA denied his petition for probation.
6. ISSUE: WoN Llamado’s probation application was within the period of perfecting an
appeal- YES
RULING:
Sec. 4, PD 968 (1976) - 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. (1st FORM)
7. It will be noted that the TC could grant probation at any time after it shall convict and
sentence the accused and after an appeal has been taken from conviction thus the
application for probation was deemed to automatically withdraw of the pending appeal.
8. PD 968 was then amended to PD 1257
Sec. 4., PD 1257 (1977) - Grant of Probation. Subject to the provisions of this Decree, the
court may, after it shall have convicted and sentenced a defendant but before he begins
to serve his sentence and upon his application, 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
with subsidiary imprisonment in case of insolvency. An application for probation shall be
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. In the latter case, however, if the application
is filed on or after the date of the judgment of the appellate court, said application shall
be acted upon by the trial court on the basis of the judgment of the appellate court. (2nd
FORM)
9. The prosecution shall be notified by the court on the probation application and he may
comment on such application 10 days from notification.
10. An examination of Sec. 4, P.D. No. 1257, reveals that it had established a prolonged but
definite period during which an application for probation may be granted by the trial court.
That period was: 'After the trial court] shall have convicted and sentenced a defendant but
before he begins to serve his sentence." Thus the cut-off time commencement of service of
sentence takes place not only after an appeal has been taken from the conviction but even
after judgement has been rendered by the appellate court and after final judgement.
11. In the last situation, Sec. 4 provides that the “probation application shall be acted upon by
the TC on the basis of the judgement of the appellate court” and for the appellate court
might increased or reduced the original penalty imposed by the TC.
12. It would be undisputed that if the present case arose while Sec. 4 was still in effect,
Llamado’s probation application would be granted as it was filed before the cut-off time.
However, it was again amended by PD 1990.
Sec. 4, PD 1990 (1985) 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 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. (PRESENT FORM)
13. In its present form, it established a narrower period during w/c a probation application
may be filed w/ the TC after it has convicted within the period of perfecting appeal. The
new proviso expressly prohibits the grant of an application for probation "if the defendant
has perfected an appeal from the judgment of conviction.” Further, it dropped the phrase
that the filing of the probation application means “automatic withdrawal of pending
appeal”. This is logical since an application cannot be filed due to a perfected appeal thus
no pending appeal would have to be withdrawn.
14. In applying Sec. 4 in its present form and at the time of Llamado’s conviction, the period of
perfecting an appeal from judgement is 15 days from promulgation or notice. It is
perfected by simply filing a notice and serving a copy to the People. In this case, Llamado
orally manifested and such is equal to a written notice.
15. SC found Llamado’s claim that “period of perfecting an appeal” and “if the defendant has
perfected an appeal from conviction” should not be referred to the Rule 122 of the Rules
and PD 1990 did not specify the 15-day period and was couched on vague terms (i.e.
earliest opportunity to withdraw defendant’s appeal). His invocation to liberally construe
the law, which he considers as a penal law, cannot be upheld.
16. There was no reason why they should have so referred to that period for the operative
words of Sec. 4 4 already do refer, in SC’s view, to such 15-day period. Whereas clauses do
not form part of a statute, strictly speaking; they are not part of the operative language of
the statute. Nevertheless, “whereas” clauses may be helpful to the extent they articulate
the general purpose or reason underlying a new enactment, in the present case, an
enactment which drastically but clearly changed the substantive content of Sec. 4 existing
before the promulgation of PD 1990. “Whereas” clauses, however, cannot control the
specific terms of the statute; in the instant case, the whereas clauses of P.D. No. 1990 do
not purport to control or modify the terms of Sec. 4 as amended.
17. "Perfecting an appeal" has no sensible meaning apart from the meaning given to those
words in our procedural law and so the law-making agency could only have intended to
refer to the meaning of those words in the context of procedural law.
18. The Probation Law is not a penal statute. The provisions were clear and unambiguous. The
true legislative intent must be given effect. The meaning set forth in Sec. 4 is plain and
unmistakable.
19. The TC lost jurisdiction over the case when petitioner perfected his appeal. Hence, the CA
was not in a position to remand the case except for execution of judgment. To add, having
invoked the CA’s jurisdiction, Llamado is not at liberty casually to attack that jurisdiction
when exercised adversely to him. In any case, his right to apply for probation was lost when
he perfected his appeal from the judgment of conviction.
FALLO: WHEREFORE, the Decision of the Court of Appeals in CAGR No. 04678 is hereby
AFFIRMED. No pronouncement as to costs.