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G.R. No.

108747 April 6, 1995

PABLO C. FRANCISCO, petitioner,

vs.

COURT OF APPEALS AND THE HONORABLE MAXIMO C. CONTRERAS, respondents.

BELLOSILLO, J.:

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.

As conceptualized, is petitioner entitled to probation within the purview of P.D. 968, as


amended by P.D. 1257 and P.D. 1990?

Petitioner's woes started when as President and General Manager of ASPAC Trans. Company he
failed to control his outburst and blurted —

You employees in this office are all tanga, son of a bitches (sic), bullshit. Puro kayo walang utak .
. . . Mga anak ng puta . . . . Magkano ba kayo . . . God damn you all.

Thus for humiliating his employees he was accused of multiple grave oral defamation in five (5)
separate Informations instituted by five (5) of his employees, each Information charging him
with gravely maligning them on four different days, i.e., from 9 to 12 April 1980.

On 2 January 1990, after nearly ten (10) years, the Metropolitan Trial Court of Makati, Br. 61,
found petitioner guilty of grave oral defamation in four (4) of the five (5) cases filed against him,
i.e., Crim. Cases Nos. 105206, 105207, 105209 and 105210, sentenced him to a prison term of
one (1) year and one (l) day to one (1) year and eight (8) months of prision correccional "in each
crime committed on each date of each case, as alleqed in the information(s)," ordered him to
indemnify each of the offended parties, Victoria Gatchalian, Rowena Ruiz, Linda Marie Ayala
Pigar and Marie Solis, P10,000.00 as exemplary damages, and P5,000.00 for attorney's fees, plus
costs of suit.1 He was however acquitted in Crim. Case No. 105208 for persistent failure of the
offended party, Edgar Colindres, to appear and testify.

Not satisfied with the Decision of the MeTC, and insisting on his innocence, petitioner elevated
his case to the Regional Trial Court.

On 5 August 1991 the Regional Trial Court of Makati, Br. 59, affirmed his conviction but
appreciated in his favor a mitigating circumstance analogous to passion or obfuscation. Thus —

. . . (he) was angry and shouting when he uttered the defamatory words complained of . . . . he
must have been angry and worried "about some missing documents . . . as well as the letter of
the Department of Tourism advising ASPAC about its delinquent tax of P1.2 million . . . . " the
said defamatory words must have been uttered in the heat of anger which is a mitigating
circumstance analogous to passion or obfuscation.2

Accordingly, petitioner was sentenced "in each case to a STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment . . . . "3 After he failed to interpose an appeal therefrom the decision.of
the RTC became final. The case was then set for execution of judgment by the MeTC which, as a
consequence, issued a warrant of arrest. But·before he could be arrested petitioner filed an
application for probation which the MeTC denied "in the light of the ruling of the Supreme Court
in Llamado v. Court of Appeals, G.R. No, 84850, 29 June 1989, 174 SCRA 566 . . . ."4

Forthwith he went to the Court of Appeals on certiorari which on 2 July 1992 dismissed his
petition on the following grounds —

Initially, the Court notes that the petitioner has failed to comply with the provisions of Supreme
Court Circular No. 28-91 of September 4, 1991. Violation of the circular is sufficient cause for
dismissal of the petition.

Secondly, the petitioner does not allege anywhere in the petition that he had asked the
respondent court to reconsider its above order; in fact, he had failed to give the court
an.opportunity to correct itself if it had, in fact, committed any error on the matter. He is,
however, required to move for reconsideration of the questioned order before filing a petition
for certiorari (Sy It v. Tiangco, 4 SCRA 436). This failure is fatal to his cause. It is a ground for
dismissal of his petition (Santos v. Vda. de Cerdenola, 5 SCRA 823; Acquiao v. Estenso, 14 SCRA
18; Del Pilar Transit, Inc. v. Public Service Commission, 31-SCRA 372).

Thirdly, it is obvious that respondent court did not commit any capricious, arbitrary, despotic or
whimsical exercise of power in denying the petitioner's application for probation . . . .

Fourthly, the petition for probation was filed by the petitioner out of time . . . .

Fifthly, the Court notes that Section 4 of PD 968 allows the trial court to grant probation after
conviction, upon an application by the defendant within the period of appeal, upon terms and
conditions and period appropriate to each case, but expressly rules out probation where an
appeal has been taken . . . . 5

The motion for reconsideration was likewise denied.

In the present recourse, petitioner squirms out of each ground and seeks this Court's
compassion in dispensing with the minor technicalities which may militate against his petition as
he now argues before us that he has not yet lost his right to avail of probation notwithstanding
his appeal from the MeTC to the RTC since "[t]he reason for his appeal was precisely to enable
him to avail himself of the benefits of the Probation Law because the original Decision of the
(Metropolitan) Trial Court was such that he would not then be entitled to probation." 6 He
contends that "he appealed from the judgment of the trial court precisely for the purpose of
reducing the penalties imposed upon him by the said court to enable him to qualify for
probation." 7

The central issue therefore is whether petitioneris still qualified to avail of probation even after
appealing his conviction to the RTC which affirmed the MeTC except with regard to the duration
of the penalties imposed.

Petitioner is no longer eligible for probation.

First. Probation is a mere privilege, not a right. 8 Its benefits cannot extend to those not
expressly included. Probation is not a right of an accused, but rather an act of grace and
clemency or immunity conferred by the state which may be granted by the court to a seemingly
deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for
the offense of which he stands convicted. 9 It is a special prerogative granted by law to a person
or group of persons not enjoyed by others or by all. Accordingly, the grant of probation rests
solely upon the discretion of the court which is to be exercised primarily for the benefit of
organized society, and only incidentally for the benefit of the accused.10 The Probation Law
should not therefore be permitted to divest the state or its government of any of the latter's
prerogatives, rights or remedies, unless the intention of the legislature to this end is clearly
expressed, and no person should benefit from the terms of the law who is not clearly within
them.

Neither Sec. 4 of the Probation Law, as amended, which clearly mandates that "no application
for probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction," nor Llamado v. Court of Appeals 11 which interprets the quoted
provision, offers any ambiguity or qualification. As such, the application of the law should not be
subjected to any to suit the case of petitioner. While the proposition that an appeal should not
bar the accused from applying for probation if the appealis solely to reduce the penalty to
within the probationable limit may be equitable, we are not yet prepared to accept this
interpretation under existing law and jurisprudence. Accordingly, we quote Mr. Justice Feliciano
speaking for the Court en banc in Llamado v. Court of Appeals—

. . . we note at the outset that Probation Law is not a penal statute. We, however, understand
petitioner's argument to be really that any statutory language that appears to favor the accused
in acriminal case should be given.a "liberal interpretation." Courts . . . have no authority to
invoke "liberal interpretation" or "the spirit of the law" where the words of the statute
themselves, and·as illuminated by the history of that statute, leave no room for doubt or
interpretation. We do not believe that "the spirit of·the law" may legitimately be invoked to set
at naught words which have a clear and definite meaning imparted to them by our procedural
law. The "true legislative intent" must obviously be given effect by judges and all others who are
charged with the application and implementation of a statute. It is absolutely essential to bear
in mind, however, that the spirit of the law and the intent that is to be given effect are derived
from the words actually used by the law-maker, and not from some external, mystical or
metajuridical source independent of and transcending the words of the legislature.

The Court is not here to be understood as giving a "strict interpretation" rather than a "liberal"
one to Section 4 of the Probation Law of 1976 as amended by P.D. No. 1990. "Strict" and
"liberal" are adjectives which too frequently impede a disciplined and principled search for the
meaning which the law-making authority projected when it promulgated the language which we
must apply. That meaning is clearly visible in the text of Section 4, as plain and unmistakable as
the nose on a man's face. The Courtis simply·reading Section 4 as it is in fact written. There is no
need for the involved process of construction that petitioner invites us to engage in, a process
made necessary only because petitioner rejects the conclusion or meaning which shines through
the words of the statute. The first duty of the judge is to take and apply a statute as he finds it,
not as he would like·it to be. Otherwise, as this Court in Yangco v. Court of First Instance
warned, confusion and uncertainty will surely follow, making, we might add, stability and
continuity in the law much more difficult to achieve:

. . . [w]here language is plain, subtle refinements which tinge words as to give them the color of
a particular judicial theory are not only unnecessary but decidedly harmful. That which has
caused so much confusion in the law, which has made it so difficult for the public to understand
and know what the law is with respect to a given matter, is in considerable measure the
unwarranted interference by judicial tribunals with the English language as found in statutes and
contracts, cutting the words here and inserting them there, making them fit personal ideas of
what the legislature ought to have done or what parties should have agreed upon, giving them
meanings which they do not ordinarily have cutting, trimming, fitting, changing and coloring
until lawyers themselves are unable to advise their clients as to the meaning of a given statute
or contract until it has been submitted to some court for its interpretation and construction.

The point in this warning may be expected to become sharper as our people's grasp of English is
steadily attenuated. 12

Therefore, that an appeal should not·bar the accused from applying for probation if the appeal
is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec,
4 of the Probation Law, as amended, which opens with a negativeclause, "no application for
probation shall be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction." In Bersabal v. Salvador, 13 we said —

By its very language, the Rule is mandatory. Under the rule of statutory construction. negative
words and phrases are to be regarded as mandatory while those in the affirmative are merely
directory. . . . the use of the term "shall" further emphasizes its mandatory character and means
that it is imperative, operating to impose a duty which may be enforced.

And where the law does not distinguish the courts should not distinguish; where the law does
not make exception the court should not except.

Second. At the outset, the penalties imposed by the MeTC were already probationable. Hence,
there was no need to appeal if only to reduce the penalties to within the probationable period.
Multiple prison terms imposed against an accused found guilty of several offenses in one
decision are not, and should not be, added up. And, the sum of the multiple prison terms
imposed against an applicant should not be determinative of his eligibility for, nay his
disqualification from, probation. The multiple prison terms are distinct from each other, and if
none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years,
then he is entitled to probation, unless he is otherwise specifically disqualified. The number of
offenses is immaterial as long as all the penalties imposed, taken separately, are within the
probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not
total when it says that "[t]he benefits of this Decree shall not be extended to those . . . .
sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law
does not intend to sum up the penalties imposed but to take each penalty separately and
distinctly with the others. Consequently, even if petitioner was supposed to have served his
prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime
committed on each date of each case, as alleged in the information(s)," and in each of the four
(4) informations, he was charged with.having defamed the four (4) private complainants on four
(4) different, separate days, he was still·eligible for probation, as each prison term imposed on
petitioner was probationable.

Fixing the cut-off point at a maximum term of six (6) years imprisonment for probation is based
on the assumption that those sentenced to higher penalties pose too great a risk to society, not
just because of their demonstrated capability for serious wrong doing but because of the gravity
and serious consequences of the offense they might further commit. 14 The Probation Law, as
amended, disqualifies only those who have been convicted of grave felonies as defined in Art. 9
in relation to Art. 25 of The Revised Penal Code, 15 and not necessarily those who have been
convicted of multiple offenses in a single proceeding who are deemed to be less perverse.
Hence, the basis of the disqualification is principally the gravity of the offense committed and
the concomitant degree of penalty imposed. Those sentenced to a maximum term not
exceeding six (6) years are not generally considered callous, hard core criminals, and thus may
avail of probation.

To demonstrate the point, let ustake for instance one who is convicted in a single decision of,
say, thirteen (13) counts of grave oral defamation (for having defamed thirteen [13] individuals
in one outburst) and sentenced to a total prison term of thirteen (13) years, and another who
has been found guilty of mutilation and sentenced to six (6) years and one (l) day of prision
mayor minimum as minimum to twelve (l2) years and one (1) day of reclusion temporal
minimum as maximuin. Obviously, the latter offender is more perverse and is disqualified from
availing of probation.

Petitioner thus proceeds on an erroneous assumption that under the MeTC Decision he could
not have availed of the benefits of probation. Since he could have, although he did not, his
appeal now precludes him from applying for probation.
And, even if we go along with the premise of petitioner, however erroneous it may be, that the
penalties imposed against him should be summed up, still he would not have qualified under the
Decision rendered by the RTC since if the "STRAIGHT penalty of EIGHT (8) MONTHS
imprisonment" imposed by the RTC is multiplied sixteen (16) times, the total imposable penalty
would be ten (10) years and eight (8) months, which is still way beyond the limit of not more
than six (6) years provided for in the Probation Law, as amended. To illustrate: 8 months
multiplied by 16 cases = 128 months; 128 months divided by 12 months (in a year) = 10 years
and 8 months, hence, following his argument, petitioner cannot still be eligible for probation as
the total of his penalties exceeds six (6) years.

The assertion that the Decision of the RTC should be multiplied only four (4) times since there
are only four (4) Informations thereby allowing petitioner to qualify for probation, instead of
sixteen (16) times, is quite difficult to understand. The penalties imposed by the MeTC cannot
be any clearer — "one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional, in each crime committed on each date of each case, as alleged in the
information(s). "Hence, petitioner should suffer the imposed penalties sixteen (16) times. On
the other hand, the RTC affirmed, the judgment of conviction and merely reduced the duration
of each penalty imposed by the MeTC "in each case to a STRAIGHT penalty of EIGHT (8)
MONTHS imprisonment" on account of a mitigating circumstance for each case, count or
incident of grave oral defamation·There is no valid reason therefore why the penalties imposed
by the RTC should be multiplied only four (4) times, and not sixteen (16) times, considering that
the RTC merely affirmed the MeTC as regards the culpability of petitioner in each of the sixteen
(16) cases and reducing only the duration of the penalties imposed therein. Thus —

Premises considered, the judgment of conviction rendered by the trial court is AFFIRMED with
modification, as follows:

WHEREFORE, the Court hereby finds the accused Pablo C. Francisco GUILTY beyond reasonable
doubt in each of the above entitled cases and appreciating in his favor the mitigating
circumstance which is analogous to passion or obfuscation, the Court hereby sentences the said
accused in each case to a straight penalty of EIGHT (8) MONTHS imprisonment, with the
accessory penalties prescribed by law; and to pay the costs. 16

Nowhere in the RTC Decision is it stated or even hinted at that the accused was acquitted or
absolved in any of the four (4) counts under each of the four (4) Informatfons, or that any part
of thejudgment of conviction was reversed, or that any of the cases, counts or incidents was
dismissed. Otherwise, we will have to account for the twelve (12) other penalties imposed by
the MeTC. Can we? What is clear is that the judgment of conviction rendered by the was
affirmed with the sole modification on the duration of the penalties.

In fine, considering that the multiple prison terms should not be summed up but taken
separately as the totality of all the penalties is not the test, petitioner should have immediately
filed an application for probation as he was already qualified after being convicted by the MeTC,
if indeed thereafter he felt humbled, was ready to unconditionally accept the verdict of the
court and admit his liability. Consequently, in appealing the Decision of the MeTC to the RTC,
petitioner lost his right to probation. For, plainly, the law considers appeal and probation
mutually exclusive remedies. 17

Third. Petitioner appealed to the RTC not to reduce or even correct the penalties imposed by
the MeTC, but to assert his innocence. Nothing more. The cold fact is that petitioner appealed
his conviction to the RTC not for the sole purpose of reducing his penalties to make him eligible
for probation — since he was already qualified under the MeTC Decision — but rather to insist
on his innocence. The appeal record is wanting of any other purpose. Thus, in his Memorandum
before the RTC, he raised only three (3) statements of error purportedly committed by the
MeTC all aimed at his acquittal: (a) in finding that the guilt of the accused has been established
because of his positive identification by the witness for the prosecution; (b) in giving full faith
and credence to the bare statements of the private complainants despite the absence of
corroborating testimonies; and, (c)in not acquitting him in all the cases," 18 Consequently,
petitioner insisted that the trial court committed an error in relying on his positive identification
considering that private complainants could not have missed identifying him who was their
President and General Manager with whom they worked for a good number of years. Petitioner
further argued that although the alleged defamatory words were uttered in the presence of
other persons, mostly private complainants, co-employees and clients, not one of them was
presented as a witness. Hence, according to petitioner, the trial court could not have convicted
him on the basis of the uncorroborative testimony of private complainants. 19

Certainly, the protestations of petitioner connote profession of guiltlessness, if not complete


innocence, and do not simply put in issue the propriety of the penalties imposed. For sure, the
accused never manifested that he was appealing only for the purpose of correcting a wrong
penalty — to reduce it to within the probationable range. Hence, upon interposing an appeal,
more so after asserting his innocence therein, petitioner should be precluded from seeking
probation. By perfecting his appeal, petitioner ipso facto relinquished his alternative remedy of
availing of the Probation Law the purpose of which is simply to prevent speculation or
opportunism on the part of an accused who although already eligible does not at once apply for
probation, but doing so only after failing in his appeal.

The fact that petitioner did not elevate the affirmance of his conviction by the RTC to the Court
of Appeals does not necessarily mean that his appeal to the RTC was solely to reduce his
penalties. Conversely, he was afraid that the Court of Appeals would increase his penalties,
which could be worse for him. Besides, the RTC Decision had already become final and
executory because of the negligence, according to him, of his former counsel who failed to seek
possible remedies within the period allowed by law.

Perhaps it should be mentioned that at the outset petitioner, in accordance with Sec 3, par. (e),
Rule 117 of the Rules of Court, 20 should have moved to quash as each of the four (4)
Informations filed against him charged four (4) separate crimes of grave oral defamation,
committed on four (4) separate days. His failure to do so however may now be deemed a waiver
under Sec. 8 of the same Rule 21 and he can be validly convicted, as in the instant case, of as
many crimes charged in the Information.

Fourth. The application for probation was filed way beyond the period allowed by law. This is
vital way beyond the period allowed by law and crucial. From the records it is clear that the
application for probation was filed "only after a warrant for the arrest of petitioner had been
issued . . . (and) almost two months after (his) receipt of the Decision" 22 of the RTC. This is a
significant fact which militates against the instant petition. We quote with affirmance the well-
written, albeit assailed, ponencia of now Presiding Justice of the Court of Appeals Nathanael P.
De Pano, Jr., on the specific issue —

. . . the petition for probation was filed by the petitioner out of time. The law in point, Section 4
of P.D. 968, as amended, provides thus:

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 application by said defendant within
the period for perfecting an appeal. . . . place the defendant on probation . . . .

Going to the extreme, and assuming that an application for probation from one who had
appealed the trial court's judgment is allowed by law, the petitioner's plea for probation was
filed out of time. In the petition is a clear statement that the petitioner was up for execution of
judgment before he filed his application for probation. P.D. No. 968 says that the application for
probation must be filed "within the period for perfecting an appeal;" but in this case, such
period for appeal had passed, meaning to say that the Regional Trial Court's decision had
attained finality, and no appeal therefrom was possible under the law. Even granting that an
appeal from the appellate court's judgment is contemplated by P.D. 968, in addition to the
judgment rendered by the trial court, that appellate judgment had become final and was, in
fact, up for actual execution before the application for probation was attempted by the
petitioner. The petitioner did not file his application for probation before the finality of the said
judgment; therefore, the petitioner's attempt at probation was filed too late.

Our minds cannot simply rest easy on. the proposition that an application for probation may yet
be granted even if it was filed only after judgment has become final, the conviction already set
for execution and a warrant of arrest issued for service of sentence.

The argument that petitioner had to await the remand of the case to the MeTC, which
necessarily must be after the decision of the RTC had become final, for him to file the
application for probation with the trial court, is to stretch the law beyond comprehension. The
law, simply, does not allow probation after an appeal has been perfected.

Accordingly, considering that prevailing jurisprudence treats appeal and probation as mutually
exclusive remedies, and petitioner appealed from his conviction by the MeTC although the
imposed penalties were already probationable, and in his appeal, he asserted only his innocence
and did not even raise the issue of the propriety of the penalties imposed on him, and finally, he
filed an application for probation outside the period for perfecting an appeal granting he was
otherwise eligible for probation, the instant petition for review should be as it is hereby DENIED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin and Regalado, JJ., concur.

Separate Opinions

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.

I.

The principal basis for the affirmance of the decision of the Court of Appeals denying probation
is the fact that petitioner had appealed his sentence before filing his application for probation.
Reliance is placed on the literal application of § 4 of the Probation Law of 1976 ,as amended,
which provides as follows:

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 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
probation shall be filed with the trial court application shall be deemed a waiver of the right to
appeal.

An order granting or denying probation shall not be appealable.


Thus, under § 4 the accused is given the choice of appealing his sentence or applying for
probation. If he appeals, he cannot later apply for probation. If he opts for probation, he can not
appeal. Implicit in the choice, however, is that the accused is not disqualified for probation
under any of the cases mentioned in § 9, to wit:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of subversion or any crime against the national security or the public order;

(c) who have previously been convicted by final judgment 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.

Consequently, if under the sentence given to him an accused is not qualified for probation, as
when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but
on appeal the sentence is modified so that he becomes qualified, I believe that the accused
should not be denied the benefit of probation.

Before its amendment by P.D. No. 1990, the law allowed — even encouraged — speculation on
the outcome of appeals by permitting the accused to apply for probation after he had appealed
and failed to obtain an acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990
by expressly providing that "no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction." For an accused, despite
the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an
acquittal if he knows he can any way apply for probation in the event his conviction is affirmed.2

There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to
the choice of either appealing from the decision of the trial court or applying for probation, the
purpose is to deny him the right to probation in cases like the one at bar where he becomes
eligible for probation only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of
an accused who; although eligible for probation, does not at once apply for probation, doing so
only after failing in his appeal.

In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was
principally motivated by a desire to be acquitted. While acquittal might have been an alluring
prospect for him, what is clear is that he had a reason for appealing because under the sentence
given to him he was disqualified to apply for probation. The MeTC had originally sentenced him
to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on
each date of each case, as alleged in the information[s]." This meant, as the majority opinion
points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four crimes of grave oral defamation in each
of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus
exceeded the limit of six (6) years of imprisonment allowed by § 9(a) and disqualified him for
probation. It was only after this penalty was reduced on appeal to a straight penalty of eight
months imprisonment in each case or to a total term of 2 years and 8 months in the four cases
that petitioner became eligible for probation. Then he did not appeal further although he could
have done so.

The Court of Appeals, while acknowledging that "there may be some space not covered by the
present law on probation . . . where in its original state, the petitioner was disqualified from
applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under
the terms of the judgment on appeal," nevertheless felt bound by the letter of § 4: "No
application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that
to allow probation in this case would be to go against the "clear and express mandate of sec. 4
of the Probation Law, as amended." (p. 9)

To regard probation, however, as a mere privilege, to be given to the accused only where it
clearly appears he comes within its letter is to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal law — it is
not — but to achieve its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14 (1983)). The
niggardly application of the law would defeat its purpose to "help the probationer develop into
a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per
Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of
a prison record, to save government funds that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v.
Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)

The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985)
instead commends itself to me:

Regarding this, it suffices to state that the Probation Law was never intended to limit the right of
an accused person to present all relevant evidence he can avail of in order to secure a verdict of
acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part
of the accused to enable him to avail of the benefits of probation. A contrary view would
certainly negate the constitutional right of an accused to be presumed innocent until the
contrary is proved.

As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after
the penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby
became qualified for probation, he did not appeal further. The majority says that this was
because he was afraid that if he did the penalty could be increased. That possibility, however,
was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of
the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he
would he acquitted.

It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not
simply questioned the propriety of his sentence, but no more so does an accused who, upon
being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is
otherwise eligible for probation.

It is argued that there is a difference because an accused who pleads "not guilty'' in the
beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an
accused who appeals a sentence because under it he is not qualified for probation, but after the
penalty is reduced, instead of appealing further, accepts the new sentence and applies for
probation.

This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in
which it was held that because the petitioner had appealed his sentence, he could not
subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that
case could have applied for probation as his original sentence of one year of prision correccional
did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in
§ 4 that one who applies for probation must not "have perfected an appeal from the judgment
of conviction."

II.
It is contended that petitioner did not have to appeal because under the original sentence
meted out to him he was not disqualified for probation. The issue here is whether the multiple
prison terms imposed on petitioner are to be considered singly or in their totality for the
purpose of § 9(a) which disqualifies from probation those "sentenced to serve a maximum term
of imprisonment of more than six years."

I submit that they should be taken in their totality. As the sentence originally imposed on
petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional in each crime committed on each date of each case" and as there are four offenses
of grave oral defamation against petitioner in each of the four cases, the total prison term which
he would have to serve was 26 years and 8 months. This is clearly beyond the probationable
maximum allowed by law.

It is said, however, that even if the totality of the prison terms is the test, the modified sentence
imposed by the RTC would not qualify the petitioner for probation because he has to suffer
imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said
accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means
eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8
months.

The policy of the law indeed appears to be to treat as only one multiple sentences imposed in
cases which are jointly tried and decided. For example, § 9(c) disqualifies from probation
persons "who have previously been convicted by final judgment 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. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had
been found guilty of estafa in five criminal cases, was qualified for probation because although
the crimes had been committed on different dates he was found guilty of each crime on the
same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7)
months and twenty-five (25) days. In each criminal case the sentence was three (3) months and
fifteen (15) days.

That the duration of a convict's sentence is determined by considering the totality of several
penalties for different offenses committed is also implicit in the provisions of the Revised Penal
Code on the accumulation of penalties. (See e.g., arts. 48 and 70)

It is said that the basis of disqualification under § 9 is the gravity of the offense committed and
the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple
grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a
graver offense than another who is guilty of only offense of grave oral defamation and
sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an
accused convicted of one offense of grave oral defamation and another one convicted of the
same offense, say four or more times. The relevant comparison is not, as the majority says,
between an accused found guilty of grave oral defamation four or more times and another one
found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of
prision mayor to 12 years and 1 day of reclusion temporal.

III.

Finally, it is said that there is a more fundamental reason for denying probation in this case and
that is that petitioner applied for probation only after his case had been remanded to the MeTC
for the execution of its decision as modified. But that is because § 4 provides that "an
application for probation shall be filed with the trial court." In the circumstances of this case,
petitioner had to await the remand of the case to the MeTC, which necessarily must be after the
decision of the RTC had become final.
The decision of the Court of Appeals should be REVERSED and respondent judge of the
Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's
application for probation.

VITUG, J., concurring:

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting
opinion that an accused, who originally is not qualified for probation because the penalty
imposed on him by a court a quo exceeds six (6) years, should not be denied that benefit of
probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am
unable, however, to second the other proposition that multiple prison terms imposed by a court
should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I
concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or
disqualification of an applicant for probation charged with, and sentenced to serve multiple
prison terms for, several offenses, "the number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable period." The use of the word
maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should
be enough to reveal that such has been the legislative intent.

Thus, I still must vote for the denial of the petition.

Separate Opinions

MENDOZA, J., dissenting:

I vote to reverse the judgment of the Court of Appeals in this case.

I.

The principal basis for the affirmance of the decision of the Court of Appeals denying probation
is the fact that petitioner had appealed his sentence before filing his application for probation.
Reliance is placed on the literal application of § 4 of the Probation Law of 1976 ,as amended,
which provides as follows:

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 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
probation shall be filed with the trial court application shall be deemed a waiver of the right to
appeal.

An order granting or denying probation shall not be appealable.

Thus, under § 4 the accused is given the choice of appealing his sentence or applying for
probation. If he appeals, he cannot later apply for probation. If he opts for probation, he can not
appeal. Implicit in the choice, however, is that the accused is not disqualified for probation
under any of the cases mentioned in § 9, to wit:

Sec. 9. Disqualified Offenders. — The benefits of this Decree shall not be extended to those:

(a) sentenced to serve a maximum term of imprisonment of more than six years;

(b) convicted of subversion or any crime against the national security or the public order;
(c) who have previously been convicted by final judgment 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.

Consequently, if under the sentence given to him an accused is not qualified for probation, as
when the penalty imposed on him by the court singly or in their totality exceeds six (6) years but
on appeal the sentence is modified so that he becomes qualified, I believe that the accused
should not be denied the benefit of probation.

Before its amendment by P.D. No. 1990, the law allowed — even encouraged — speculation on
the outcome of appeals by permitting the accused to apply for probation after he had appealed
and failed to obtain an acquittal. 1 It was to change this that § 4 was amended by P.D. No. 1990
by expressly providing that "no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction." For an accused, despite
the fact that he is eligible for probation, may be tempted to appeal in the hope of obtaining an
acquittal if he knows he can any way apply for probation in the event his conviction is affirmed.2

There is, however, nothing in the amendatory Decree to suggest that in limiting the accused to
the choice of either appealing from the decision of the trial court or applying for probation, the
purpose is to deny him the right to probation in cases like the one at bar where he becomes
eligible for probation only because on appeal his sentence is reduced. The purpose of the
amendment, it bears repeating, is simply to prevent speculation or opportunism on the part of
an accused who; although eligible for probation, does not at once apply for probation, doing so
only after failing in his appeal.

In the case at bar, it cannot be said that in appealing the decision MeTC petitioner was
principally motivated by a desire to be acquitted. While acquittal might have been an alluring
prospect for him, what is clear is that he had a reason for appealing because under the sentence
given to him he was disqualified to apply for probation. The MeTC had originally sentenced him
to 1 year and 1 day to 1 year and 8 months of prision correccional for "each crime committed on
each date of each case, as alleged in the information[s]." This meant, as the majority opinion
points out, that petitioner had to suffer the prison term of 1 year and 1 day to 1 year and 8
months sixteen times, since he was found guilty of four crimes of grave oral defamation in each
of four cases. The totality of the penalties imposed on petitioner (26 years and 8 months) thus
exceeded the limit of six (6) years of imprisonment allowed by § 9(a) and disqualified him for
probation. It was only after this penalty was reduced on appeal to a straight penalty of eight
months imprisonment in each case or to a total term of 2 years and 8 months in the four cases
that petitioner became eligible for probation. Then he did not appeal further although he could
have done so.

The Court of Appeals, while acknowledging that "there may be some space not covered by the
present law on probation . . . where in its original state, the petitioner was disqualified from
applying for probation under Sec. 9 of the Decree, becoming eligible for probation only under
the terms of the judgment on appeal," nevertheless felt bound by the letter of § 4: "No
application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." The majority opinion, affirming the ruling, states that
to allow probation in this case would be to go against the "clear and express mandate of sec. 4
of the Probation Law, as amended." (p. 9)

To regard probation, however, as a mere privilege, to be given to the accused only where it
clearly appears he comes within its letter is to disregard the teaching in many cases that the
Probation Law should be applied in favor of the accused not because it is a criminal law — it is
not — but to achieve its beneficent purpose. (Santos To v. Paño, 120 SCRA 8, 14 (1983)). The
niggardly application of the law would defeat its purpose to "help the probationer develop into
a law-abiding and self-respecting individual" (Baclayon v. Mutia, 129 SCRA 148, 149 (1984), per
Teehankee, J.) or "afford [him] a chance to reform and rehabilitate himself without the stigma of
a prison record, to save government funds that may otherwise be spent for his food and
maintenance while incarcerated, and to decongest the jails of the country." (Del Rosario v.
Rosero, 126 SCRA 228, 232 (1983), per Makasiar, J.)

The approach followed by the Court in Atienza v. Court of Appeals, 140 SCRA 391, 395 (1985)
instead commends itself to me:

Regarding this, it suffices to state that the Probation Law was never intended to limit the right of
an accused person to present all relevant evidence he can avail of in order to secure a verdict of
acquittal or a reduction of the penalty. Neither does the law require a plea of guilty on the part
of the accused to enable him to avail of the benefits of probation. A contrary view would
certainly negate the constitutional right of an accused to be presumed innocent until the
contrary is proved.

As already stated, petitioner did not appeal primarily to seek acquittal. Proof of this is that after
the penalty imposed on him by the MeTC had been reduced by the RTC so that he thereby
became qualified for probation, he did not appeal further. The majority says that this was
because he was afraid that if he did the penalty could be increased. That possibility, however,
was also there when he appealed from the MeTC to the RTC. For by appealing the sentence of
the MeTC, petitioner took as much risk that the penalty would be raised as the chance that he
would he acquitted.

It is true that in appealing the sentence of the MeTC petitioner professed his innocence and not
simply questioned the propriety of his sentence, but no more so does an accused who, upon
being arraigned, pleads, "Not Guilty." And yet the latter cannot be denied probation if he is
otherwise eligible for probation.

It is argued that there is a difference because an accused who pleads "not guilty'' in the
beginning, later acknowledges his guilt and shows contrition after he is found guilty. So does an
accused who appeals a sentence because under it he is not qualified for probation, but after the
penalty is reduced, instead of appealing further, accepts the new sentence and applies for
probation.

This case is thus distinguishable from Llamado v. Court of Appeals, 174 SCRA 566 (1989), in
which it was held that because the petitioner had appealed his sentence, he could not
subsequently apply for probation. For, unlike petitioner in the case at bar, the accused in that
case could have applied for probation as his original sentence of one year of prision correccional
did not disqualify him for probation. That case fell squarely within the ambit of the prohibition in
§ 4 that one who applies for probation must not "have perfected an appeal from the judgment
of conviction."

II.

It is contended that petitioner did not have to appeal because under the original sentence
meted out to him he was not disqualified for probation. The issue here is whether the multiple
prison terms imposed on petitioner are to be considered singly or in their totality for the
purpose of § 9(a) which disqualifies from probation those "sentenced to serve a maximum term
of imprisonment of more than six years."

I submit that they should be taken in their totality. As the sentence originally imposed on
petitioner was for "one (1) year and one (1) day to one (1) year and eight (8) months of prision
correccional in each crime committed on each date of each case" and as there are four offenses
of grave oral defamation against petitioner in each of the four cases, the total prison term which
he would have to serve was 26 years and 8 months. This is clearly beyond the probationable
maximum allowed by law.

It is said, however, that even if the totality of the prison terms is the test, the modified sentence
imposed by the RTC would not qualify the petitioner for probation because he has to suffer
imprisonment of eight months sixteen times. That is not so. The RTC only "sentence[d] the said
accused in each case to STRAIGHT penalty of EIGHT (8) MONTHS imprisonment." This means
eight (8) months times four (4), since there are four cases, or 32 months or 2 years and 8
months.

The policy of the law indeed appears to be to treat as only one multiple sentences imposed in
cases which are jointly tried and decided. For example, § 9(c) disqualifies from probation
persons "who have previously been convicted by final judgment 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. It was held in Rura v. Lopena, 137 SCRA 121 (1985) that the accused, who had
been found guilty of estafa in five criminal cases, was qualified for probation because although
the crimes had been committed on different dates he was found guilty of each crime on the
same day. As this Court noted, "Rura was sentenced to a total prison term of seventeen (l7)
months and twenty-five (25) days. In each criminal case the sentence was three (3) months and
fifteen (15) days.

That the duration of a convict's sentence is determined by considering the totality of several
penalties for different offenses committed is also implicit in the provisions of the Revised Penal
Code on the accumulation of penalties. (See e.g., arts. 48 and 70)

It is said that the basis of disqualification under § 9 is the gravity of the offense committed and
the penalty imposed. I agree. That is why I contend that a person who is convicted of multiple
grave oral defamation for which the total prison term is, say, 6 years and 8 months, is guilty of a
graver offense than another who is guilty of only offense of grave oral defamation and
sentenced to a single penalty of 1 year and 8 months. The relevant comparison is between an
accused convicted of one offense of grave oral defamation and another one convicted of the
same offense, say four or more times. The relevant comparison is not, as the majority says,
between an accused found guilty of grave oral defamation four or more times and another one
found guilty of mutilation and sentenced to an indeterminate term of 6 years and 1 day of
prision mayor to 12 years and 1 day of reclusion temporal.

III.

Finally, it is said that there is a more fundamental reason for denying probation in this case and
that is that petitioner applied for probation only after his case had been remanded to the MeTC
for the execution of its decision as modified. But that is because § 4 provides that "an
application for probation shall be filed with the trial court." In the circumstances of this case,
petitioner had to await the remand of the case to the MeTC, which necessarily must be after the
decision of the RTC had become final.

The decision of the Court of Appeals should be REVERSED and respondent judge of the
Metropolitan Trial Court of Makati, Metro Manila should be ORDERED to GRANT petitioner's
application for probation.

VITUG, J., concurring:

While I subscribe to the observation made by Mr. Justice Vicente V. Mendoza in his dissenting
opinion that an accused, who originally is not qualified for probation because the penalty
imposed on him by a court a quo exceeds six (6) years, should not be denied that benefit of
probation if on appeal the sentence is ultimately reduced to within the prescribed limit, I am
unable, however, to second the other proposition that multiple prison terms imposed by a court
should be taken in their totality for purposes of Section 9 (a), P.D. No. 968. In this respect, I
concur with Mr. Justice Josue Bellosillo in his ponencia that in determining the eligibility or
disqualification of an applicant for probation charged with, and sentenced to serve multiple
prison terms for, several offenses, "the number of offenses is immaterial as long as all the
penalties imposed, taken separately, are within the probationable period." The use of the word
maximum instead of the word total in Section 9, paragraph (a) of P.D. 968, as amended, should
be enough to reveal that such has been the legislative intent.

Thus, I still must vote for the denial of the petition.

Footnotes

1 Decision penned by Judge Andres B. Reyes. Jr., pp. 13-14; Rollo, pp. 46-47.

2 Decision penned-by Judge Lucia V. Isnani, pp. 12-13; Rollo, pp. 59-60.

3 Ibid.

4 Order of Judge Maximo C. Contreras, Metropolitan Trial Court of Makati, Br. 61, Rollo, p. 67.

5 Decision of the Special Eleventh Division penned by then Associate Justice Nathanael P. De
Pano, Jr. (now Presiding Justice), concurred in by Associate Justices Jesus M. Elbinias and
Consuelo Y. Santiago.

6 Urgent Petition for Review, p, 15; Rollo, p, 16.

7 Id., p, 10; Rollo, p.11.

8 Baclayon v. Mutia, G.R. No. 59298, 30 April 1984, 129 SCRA 149; Amandy v. People, G.R. No.
76258, 23 May 1988, 161 SCRA 436.

9 34 Words and Phrases 111.

10 Bala v. Martinez, G.R. No. 67301, 29 January 1990, 181 SCRA 459.

11 G.R. No. 84850, 29 June 1989, 174 SCRA 566.

12 See Note 11, pp. 577-578.

13 No. L - 35910, 21 July 1978, 84 SCRA 176, citing McGee v. Republic, 94 Phil. 820 (1954).

14 Bautista, E., Statutory Concept and Objectives, Coverage and Selection Criteria for Probation.
Lecture delivered during the 1977 Regional Seminar on Probation, Philippine International
Convention Center.

15 Art. 9 defines grave felonies as those to which the law attaches the capital punishment or
penalties which in any of their periods are afflictive, in accordance with Art. 25. Art. 25 On the
other hand lists death as capital punishment, and reclusion perpetua, reclusion temporal,
perpetual or temporary absolute disqualification, perpetual or temporary special
disqualification, and prision mayor as afflictive penalties.

16 Decision of the RTC, p. 13; Rollo, p. 60.

17 Bernardo v. Balagot, G.R. No. 86561, 10 November 1992, 215 SCRA 526.

18 Decision of the RTC, p. 2; Rollo, p. 49.

19 Ibid.

20 Section 3, par. (e), Rule 117, Rules of Court, provides: "The accused may move to quash the
complaint or information on any of the following grounds: . . . that more than one offense is
charged . . . .

21 Section 8, Rule 117, Rules of Court, provides: "The failure of the accused to assert any ground
of a motion to quash before he pleads to the complaint or information, either because he did
not file a motion to quash or failed to alleged the same in the said motion shall be deemed a
waiver of the grounds of a motion to quash . . . .

22 Urgent Petition for Review, p. 5; Rollo, P 6.

MENDOZA, J., dissenting:

1 As originally promulgated on July 24, 1976, P.D. No. 968, § 4 provided:

Sec. 4. 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. (Emphasis added)

Thus, under the law as originally promulgated, any time after the trial court had convicted and
sentenced the accused and even if he had taken an appeal, the trial court could grant him
probation in the event he is convicted.

On December 1, 1977, § 4 of the law was again amended by P.D. No. 1257 so as to read as
follows:

Sec. 4. 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.

The prosecuting officer concerned shall be notified by the court of the filing of the application
for probation and he may submit his comment on such application within ten days from receipt
of the notification.

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 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. 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.

An order granting or denying probation shall not be appealable. (Emphasis added)

This amendment limited the period for applying for probation to the point just "before he
begins to serve his sentence." This meant not only after an appeal had been taken but even
after a judgment had been rendered by the appellate court and after the latter's judgment had
become final. Hence the proviso that "the application [for probation] shall be acted upon by the
trial court on the basis of the judgment of the appellate court."

On October 5, 1985, § 4 of the Probation Law was again amended to further limit the period for
applying for probation to the "period for perfecting an appeal." The purpose was to confine the
accused to the choice of either applying for probation or appealing. While heretofore an
accused could appeal and, after his appeal had failed, apply for probation, under the
amendatory Decree, this is no longer possible. If he appeals he cannot later apply for probation.
If he applies for probation he cannot later appeal. As amended by P.D. No. 1990, § 4 reads:
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 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. (Emphasis added)

2 The preamble of P.D. No. 1990 states:

WHEREAS, it has been the sad experience that persons who are convicted of offenses and who
may be entitled to probation still appeal the judgment of conviction even up to the Supreme
Court, only to pursue their application for probation when their appeal is eventually dismissed;

WHEREAS, the process of criminal investigation, prosecution, conviction and appeal entails too
much time and effort, not to mention the huge expenses of litigation, on the part of the State;

WHEREAS, the time, effort and expenses of the Government in investigating and prosecuting
accused persons from the lower courts up to the Supreme Court, are often times rendered
nugatory when, after the appellate court finally affirms the judgment of conviction, the
defendant applies for and is granted probation;

WHEREAS, probation was not intended as an escape hatch and should not be used to obstruct
and delay the administration of justice, but should be availed of at the first opportunity by
offenders who are willing to be reformed and rehabilitated; (Emphasis added)

G.R. No. L-45674 May 30, 1983

EMILIANO A. FRANCISCO and HARRY B. BERNARDINO, petitioners,

vs.

THE HONORABLE COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Martiniano P. Vivo for petitioners.

The Solicitor General for respondents.

DE CASTRO, J.:

Petition for review on certiorari of the decision of the Court of Appeals dated August 25, 1976
which modified the decision of the lower court by finding petitioners guilty of the crime of
simple slander instead of grave oral defamation as the former Court of First Instance has held,
and imposed on him a fine of P200.00 with subsidiary imprisonment in case of insolvency and
ordered them to pay complainant the amount of P1,000.00 as moral damages.

On February 6, 1966 complainant Dr. Patrocinio Angeles, who was then the Director of the
Morong Emergency Hospital, filed a case for intriguing against honor allegedly committed on
December 26, 1965 against Dr. Emiliano Francisco and Atty. Harry Bernardino with the Office of
the Provincial Fiscal of Rizal. On May 3, 1966, the Provincial Fiscal filed an information in the
former Court of First Instance of Rizal accusing Francisco and Bernardino of the crime of grave
oral defamation. On October 8, 1966 the information upon order of the court, was amended by
adding the particular statements uttered by each accused allegedly constituting the crime of
slander to wit:

AMENDED INFORMATION

The undersigned Special Counsel accuses Harry Bernardino and Emiliano Francisco of the crime
of Grave Oral Defamation, committed as follows:

That on or about the 26th day of December, 1965, in the municipality of Tanay, province of
Rizal, Philippines and within the jurisdiction of this Honorable Court the abovenamed accused
conspiring and confederating together, with the deliberate intent of bringing one Dr. Patrocinio
Angeles into public discredit, disrepute and contempt, after having knowledge that the wife of
one Romulo Cruz who was a former patient of the Morong Emergency Hospital was operated
thereat by Dr. Patrocinio Angeles, did then and there wilfully, unlawfully and feloniously and
publicly speak and utter the following insulting and defamatory words and expressions, to wit:

Dr. Francisco (To Romulo Cruz):

Your wife should not have been operated. If I were the doctor, all that I should have done was to
do a curretage raspa on her.

Atty. Bernardino:

Those doctors are incompetent. They are not surgeons. They are just bold.

Dr. Francisco:

The operation was unusual.

Atty. Bernardino:

The doctors who operated on your wife could be charged for murder thru reckless imprudence.
The doctors there are no good. They are not surgeons.

thereby imputing upon the offended party, Dr. Patrocinio Angeles, the attending physician of
the wife of Romulo Cruz and one of the physicians at the Morong Emergency Hospital,
professional incompetence, inefficiency, or negligence thus casting public contempt and ridicule
upon the reputation of the said Dr. Patrocinio Angeles.

Contrary to law.

Pasig, Rizal, October 8, 1966,

(Sgd.) ZENAIDA S. BALTAZAR

Special Counsel

On February 1, 1973 the trial court rendered its decision convicting the accused Harry
Bernardino and Emiliano Francisco of the crime of grave oral defamation, sentenced each of
them to suffer a penalty of four (4) months of arresto mayor as minimum to one (1) year and
one (1) day of prision correccional as maximum and each of the accused was directed to pay
complainant t the amount of ten thousand pesos (P10,000.00).

On appeal to the Court of Appeals the decision of the trial court as already stated was modified
finding the accused guilty of simple slander.

As found out by the Court of Appeals, the facts of the case are as follows:
The evidence of the prosecution is that Mrs. Lourdes Cruz, wife of Romulo Cruz, had been
suffering from a vaginal bleeding since November 24, 1965; that she consulted a Dr. Custodio
about her ailment and the latter was able to stop the bleeding for two days; that thereafter her
bleeding recurred that Mrs. Cruz then consulted a Dr. Floreza who advised her that if her
bleeding continued she should go to a hospital; that her bleeding continued so on December 9,
1965 Lourdes Cruz entered the Morong Emergency Hospital that she was attended by Dr.
Patrocinio Angeles, the complainant; that her ailment was tentatively diagnosed by Dr. Angeles
as "H-Mole, abortion and pregnancy"; that an x-ray examination conducted on Mrs. Cruz,
however, revealed that she was negative for pregnancy; that Mrs. Cruz continued to lose blood
and had to be given a transfusion of fresh blood on December 11, 1965; that as the bleeding did
not stop Mrs. Cruz was operated on by the complaint Dr. Patrocinio ; that her uterus which
contained three (3) dead foetal triplets was removed that the operation was successful and her
bleeding was arrested, that on December 26, 1965 at about 9:20 o'clock in the evening the two
accused Dr. Emiliano Francisco and Atty. Harry Bernardino together with Dr. Crisologo Golla and
Ernesto Ocampo went to the house of Mrs. Lourdes Cruz in Tanay, Rizal that the two accused
interviewed Mrs. Cruz and her husband Romulo Cruz about her operation; that the couple
informed the two that they are satisfied with the operation; that in the course of this interview
the accused Dr. Emiliano Francisco said that the operation was not correctly done and Mrs. Cruz
should not have been operated on and that if he were the one he would not conduct an
operation but only curretage (raspahin); that on the same occasion the accused Atty. Harry
Bernardino that the physicians in Morong Emergency Hospital were no good, are incompetent
and they are not surgeons and said accused told Romulo Cruz that he could file charges for
murder through reckless imprudence; that the accused Dr. Francisco was formerly a member of
the Courtesy Medical Staff on the Morong Emergency Hospital and as such he could bring in his
private patients who needed the facility of the hospital for proper management; that, however,
on December 15, 1965 his membership in the said staff was cancelled by the Credential
Committee of said hospital at a meeting called for that purpose by the complainant Dr. Angeles
who was then the Director of the Morong Emergency Hospital; that the accused Harry
Bernardino, as counsel of a Dr. Lerma, had earlier moved for the ouster of Dr. Angeles as
Director of the Morong Emergency Hospital; that the case was bitterly contested that it even
reached the Office of the President; that, furthermore, during the incumbency of the accused
Atty. Bernardino as Mayor of Morong, Rizal he caused the passage of a resolution wherein he
was given authority to recommend all charity cases for admission to the Morong Emergency
Hospital and that this resolution, however, was ignored by the complaint Dr. Angeles in
accordance with the policy of the Director of the Bureau of Medical Services.

The evidence of the defense is that as Chairman of the Ethics Committee of the Eastern District
of Rizal Medical Society, the accused Dr. Francisco sought to find out what could be done with
the reported wrong operation of Mrs. Lourdes Cruz by complainant Dr. Angeles which resulted
in the removal of triplets; that so the accused Dr. Francisco consulted the other accused Atty.
Bernardino on the proper steps to take; that upon the advice of accused Atty. Bernardino, the
accused Dr. Francisco accompanied by Dr. Crisologo Golla who was a Committee member, and
the accused, Atty. Bernardino went on December 26, 1965 to Tanay, Rizal the hometown of
Mrs. Lourdes Cruz; that they interviewed the spouses Romulo Cruz and Lourdes Cruz regarding
the operation performed on Mrs. Cruz on December 13, 1965; that in that interview the two
accused sought the facts regarding the case pursuant to the Ethics Committee decision to
conduct the fact finding investigation; and that after the interview with the Cruz spouses Dr.
Golla and the accused Dr. Francisco went to Dr. Floreza, in coming president of the Rizal Medical
Society on December 27, 1965, to take up the matter with him but they were advised to take it
up with the Eastern District of Rizal Medical Society, which they did.

On the basis of the foregoing, the Court of Appeals concluded that while it is true that the
statements were made on the occasion of the so-called fact finding interview pursuant to the
Ethics Committee decision, the accused went out of bounds by imputing to the complainant acts
which are not only derogatory but constitute a crime that can be prosecuted de oficio. It went
on to rule however that the defamation committed by the accused cannot be considered as
grave under the circumstances, and the worst that was said of the complainant was that he
should not have performed the operation, and that he could be prosecuted for murder through
reckless imprudence.

Not satisfied with the decision of the Court of Appeals, the present case was instituted. While
the case was pending, Atty. Harry Bernardino one of the petitioners herein died, hence in the
resolution of April 10, 1979 the case was dismissed insofar as he is concerned.

Petitioners' brief, prepared by their counsel with notable zeal raises several questions. In
synthesis, they are:

1. Whether or not the crime of simple slander found by the Court of Appeals to be the offense
committed by the petitioners has prescribed;

2. Whether or not the alleged defamatory remarks of petitioners may be considered libelous;

3. Whether or not there was conspiracy;

4. Whether or not the failure to allege in the information that petitioners acted with "malice" is
fatal; and

5. Whether or not the Court erred in giving credence to the testimony of the witnesses for the
prosecution.

As the case against the late Harry Bernardino has already been dismissed, We shall discuss only
those matters as may be pertinent to petitioner Francisco.

Francisco argues that since the Court of Appeals had found that the offense committed was the
lesser offense of simple slander, which prescribed in two months under Article 90 of the Revised
Penal Code, the said court should have dismissed the case, and sustained the acquittal of the
accused on the ground that said crime had already prescribed. He pointed out the alleged
defamatory remarks were committed on December 26, 1965, and the information charging the
accused of the greater offense of grave oral defamation was filed with the court more than four
(4) months later on May 3, 1966.

Disputing the foregoing, the Solicitor General contends that for the purpose of determining the
proper prescriptive period, what should be considered is the nature of the offense charged in
the information which is grave oral defamation, not the crime committed by the accused, as said
crime was found by the Court to constitute only simple slander. Hence, the period of
prescription here should be six (6) months.

Moreover, according to the Solicitor General, the complaint was filed by the offended party
before the Fiscal's office on February 3, 1966 or only thirty-nine (39) days after the incident in
question which is still within the prescriptive period. He cited the case of People v. Olarte 1
which overruled the case of People v. del Rosario 2 and held that the filing of the complaint in
the Municipal Court, even if it be merely for purposes of preliminary examination or
investigation should, and does, interrupt the period of prescription of criminal responsibility,
even if the court where the complaint or information is filed cannot try the case on the merits. It
makes no difference whether the case was filed in the Fiscal's Office and not in the Municipal
Court as in the Olarte case, since Article 91 of the Revised Penal Code does not require that the
complaint be one filed in court in order to toll the running of the period.

Where an accused has been found to have committed a lesser offense includible within the
offense charged, he cannot be convicted of the lesser offense, if it has already prescribed. To
hold otherwise would be to sanction the circumvention of the law on prescription by the simple
expedient of accusing the defendant of the graver offense. The principle has the support of
overwhelming authorities in American jurisprudence:
The general rule, as stated in 22 CJS, Criminal Law, sec. 225b, is "as a general rule, one indicted
for an offense not barred by limitation, but convicted of a lesser included offense which is so
barred, is entitled to discharge", and in 15 Am. Jur., Criminal Law, Sec. 343; "It frequently
happens that a change of felony includes an offense of a lower grade with a different period of
limitation so that, while the felony is not barred, the statute has ran as to the lesser offense. In
this situation, the rule is that if the statute has not run against the felony, while the lesser
offense is barred. the bar cannot be evaded by the defendant for the felony and convicting him
of the lesser offense." 3

Article 91 of the Revised Penal Code provides that "the period of prescription shall commence to
run from the day on which the crime is discovered by the offended party, the authorities. or
their agents, and shall be interrupted by the filing of the complaint or information, and shall
commence to run again when such proceedings terminate without the accused being convicted
or acquitted, or are unjustifiably stopped for any reason not imputable to him."

Interpreting the foregoing provision, this Court in People vs. Tayco 4 held that the complaint or
information referred to in Article 91 is that which is filed in the proper court and not the
denuncia or accusation lodged by the offended party in the Fiscal's Office. This is so, according
to the court, because under this rule it is so provided that the period shall commence to run
again when the proceedings initiated by the filing of the complaint or information terminate
without the accused being convicted or acquitted, adding that the proceedings in the Office of
the Fiscal cannot end there in the acquittal or conviction of the accused.

The basis of the doctrine in the Tayco case, however, was disregarded by this Court in the Olarte
case, cited by the Solicitor General. It should be recalled that before the Olarte case there was
diversity of precedents on the issue of prescription. One view declares that the filing of the
complaint with the justice of the (or municipal judge) does in the course of prescriptive term.
This view is found in People v. Olarte, L-13027, June 30, 1960 and cases cited therein; People vs.
Uba, L-13106, October 16, 1959; People v. Aquino, 68 Phil. 588, 590. The other pronouncement
is that to produce interruption, the complainant or information must have been filed in the
proper court that has jurisdiction to try the case on its merits, found in the cases of People v. del
Rosario, L-15140, December 29, 1960; People v. Coquia, L- 15456, June 29, 1963.

The Olarte case set at rest the conflict views, and enunciated the doctrine aforecited by the
Solicitor General. The reasons for the doctrine which We find applicable to the case at bar reads:

In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this
Court has re-examined the question and, after mature consideration, has arrived at the
conclusion that the true doctrine is, and should be, the one established by the decisions holding
that the filing of the complaint in the Municipal Court, even if it be merely for purposes of
preliminary examination or investigation, should, and does, interrupt the period of prescription
of the criminal responsibility, even if the court where the complaint or information is filed can
not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91
of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by
the filing of the complaint or information" without distinguishing whether the complaint is filed
in the court for preliminary examination or investigation merely, or for action on the merits.
Second, even if the court where the complaint or information is filed may only proceed to
investigate the case, its actuations already represent the initial step of the proceedings against
the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on
account of delays that are not under his control. All that the victim of the offense may do on his
part to initiate the prosecution is to file the requisite complaint.

And it is no argument that Article 91 also expresses that the interrupted prescription "shall
commence to run again when such p terminate without the accused being convicted or
acquitted", thereby indicating that the court in which the complaint or information is filed must
have power to acquit or convict the accused. Precisely, the trial on the merits usually terminates
in conviction or acquittal not otherwise. But it is in the court conducting a preliminary
investigation where the proceedings may terminate without conviction or acquittal if the court
should discharge the accused because no prima facie case has been shown.

As is a well-known fact, like the proceedings in the court conducting a p investigation, a


proceeding in the Fiscal's Office may terminate without conviction or acquittal.

As Justice Claudio Teehankee has observed:

To the writer's mind, these reasons logically call with equal force, for the express overruling also
of the doctrine in People vs. Tayco, 73 Phil. 509, (1941) that the filing of a complaint or denuncia
by the offended party with the City Fiscal's Office which is required by law to conduct the
preliminary investigation does not interrupt the period of prescription. In chartered cities,
criminal prosecution is generally initiated by the filing of the complaint or denuncia with the city
fiscal for preliminary investigation. In the case of provincial fiscals, besides being empowered
like municipal judges to conduct preliminary investigations, they may even reverse actions of
municipal judges with respect to charges triable by Courts of First Instance. ... 5

Clearly, therefore, the firing of the denuncia or complaint for intriguing against honor by the
offended party, later changed by the Fiscal to grave oral defamation, even if it were in the
Fiscal's Office, 39 days after the alleged defamatory remarks were committed (or discovered) by
the accused interrupts the period of prescription.

Nevertheless, petitioner Francisco cannot be held liable, for his statements —

Your wife would not have been operated, If I were the doctor, all that I should have done was to
do a curretage raspa on her.

xxx xxx xxx

The operation was unusual.

are clearly not libelous per se. Complainant Angeles had admitted that he committed a mistake
in the management of the case of Mrs. Cruz. The remarks made by Francisco were but a
harmless expression of his opinion on what should have been done in treating her, if he were
the doctor managing her. His statements were nothing more than a comment that complainant
committed a mistake in the diagnosis and management of the patient. An impartial observer
would readily note that such remarks do not degrade the competency of a doctor, for the latter,
because of human limitations cannot be expected to be accurate at all times in the diagnosis of
patients. As noted in the case of Blende vs. Hearst Publications, 93 P 2d. 733, a "physician is only
required to possess the ordinary knowledge and skill of his profession, and is not liable for
mistakes if he uses the methods recognized and approved by those reasonably skilled in the
profession. Clearly, a criticism in a physician's wrong management of the case, such as that of
Francisco cannot be considered libelous. In the same American case, it was held:

It is clear that to charge a physician merely with the mismanagement of the making of a wrong
diagnosis in a particular case is not of itself actionable. Such a charge implies nothing more, at
most, than ignorance or unskillfulness in that case, and does not materially affect his reputation
as respects his general competency to practice his profession.

To charge a professional man with negligence or unskillfulness in the management or treatment


of an individual case is not more than to impute to him the mistakes and errors incident to
fallible human nature. The most eminent and skillfull physician or surgeon may make mistake on
the symptoms of a particular case without detracting from his general professional skill or
learning. To say of him, therefore, that he was mistaken in that case would not be calculated to
impair the confidence of the community in his general professional competency.

We cannot see our way clear on how Francisco's questioned statements could be branded as
libelous. To stigmatize them as libelous would be a dangerous precedent whereby a mere
criticism on the actuation of another will generate criminal liability for slander. His alleged
defamatory remarks may be likened to a criticism of a lawyer's or Judge's erroneous handling of
the case.

It may be mentioned here that in the brief of the Solicitor General, the statements quoted and
stigmatized as defamatory are those only of accused Bernardino. 6 That latter's statements are
what the Solicitor General considered as "strong words that are evidently serious and
damaging." Nothing has been said by the Solicitor General regarding the statements uttered by
Francisco. Nonetheless, the Solicitor General would like to hold Francisco liable by the
utterances of Bernardino on the ground of conspiracy. Assuming that Bernardino's statement is
libelous, Francisco cannot be held liable for the same. Neither the lower court nor the Court of
Appeals found that they conspired with each other to commit the alleged crane. This is so
because no evidence was offered to show that there was prior consultation on what each would
say. The fact alone that they were together when those words were uttered is not proof that
there was conspiracy to utter those words. Clearly, each accused spoke spontaneously and
individually.

Conspiracy being of a very far-reaching effect, the degree of proof required for establishing it
must be the same as that required to support a finding of guilt for the crime itself 7 which must
be upon proof beyond reasonable doubt. 8

The finding of the Court of Appeals that the "statements were made on the occasion of the so-
called fact-finding interview pursuant to the Ethics Committee decision" is obviously
incompatible with the notion that petitioners had gone to the residence of the Cruz pursuant to
a conspiracy to defame or slander Dr. Angeles. The legitimate purpose of going to Tanay, Rizal,
having been accepted as a fact by the Court of Appeals, it is incongruous to allege, as
respondents now do, that Atty. Bernardino and Dr. Francisco had conspired to slander Dr.
Angeles.

From what has been said, there is no further need to discuss the other issues raised in this case.

WHEREFORE, in view of the foregoing, accused Emiliano Francisco is hereby acquitted, with cost
de oficio.

SO ORDERED.

Makasiar, (Chairman), Concepcion Jr., Guerrero, Abad Santos and Escolin, JJ., concur.

Aquino, J., concur in the result.

Footnotes

1 19 SCRA 494.

2 110 Phil. 476.

3 State vs. King, 84 SE 2d 313; 47 ALR 2 d 878.

4 73 Phil. 509.

5 Footnote in the case of David vs. Santos, 31 SCRA 796.

6 p. 11, Brief of the Solicitor General.

7 People vs. Portugueza, 20 SCRA 901.

8 People vs. Tividad, 20 SCRA 549.