Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 89606 August 30, 1990

AGUSTIN SALGADO, petitioner,

vs.
THE HON. COURT OF APPEALS, (Fourteenth Division) and HON. ANTONIO SOLANO, in
his capacity as Presiding Judge of the RTC-Quezon City (Branch 86) and FRANCISCO
LUKBAN, respondents.

Ernesto L. Pineda for petitioner.

Lukban, Vega, Lozada & Associates for private respondent.

MEDIALDEA, J.:

This petition for review on certiorari seeks to set aside the decision of the Court of Appeals in
CA-G.R. SP No. 15493 entitled, "Agustin Salgado v. Hon. Antonio P. Solano, et al.," which
affirmed the Order dated December 22, 1987 of the Regional Trial Court of Quezon City
(Branch 86) sustaining its previous order dated November 18, 1987 directing the issuance of a
writ of execution to enforce the civil liability of herein petitioner in Criminal Case No. 0-33798.

The facts are as follows:

Petitioner was charged with the crime of serious physical injuries in Criminal Case No. 0-33798
entitled, "People of the Philippines v. Agustin Salgado," before the Regional Trial Court of
Quezon City (Branch 86). After trial, judgment was rendered on October 16, 1986 finding him
guilty beyond reasonable doubt of the crime charged. The dispositive portion of the decision,
states:

WHEREFORE, the court finds the accused AGUSTIN P. SALGADO, JR., guilty
beyond reasonable doubt of the crime of serious physical injuries, defined and
penalized under paragraph 3 Article 263 of the Revised Penal Code, and
appreciating in his favor the following mitigating circumstances:

1) voluntary surrender; and

2) No intention to commit so grave a wrong hereby sentence (sic) said accused

to suffer imprisonment for a period of four (4) months and twenty (20) days, with
the accessories provided for by law, and to indemnify the victim, Francisco
Lukban, Jr., in the sum of P126,633.50 as actual or compensatory damages, and
 the sum of P50,000.00 as damages for the incapacity of Francisco Lukban to
pursue and engage in his poultry business.

SO ORDERED. (p. 19, Rollo)

On October 17, 1986, petitioner filed an application for probation with the trial court. The
application was granted in an Order dated April 15, 1987. The order contained, among others,
the following condition:

xxx xxx xxx

4. Indemnify the victim FRANCISCO LUKBAN, JR., in a monthly installment of

P2,000.00 (TWO THOUSAND PESOS) every month during the entire period of
his probation. (p. 15, Rollo)

For the months of May, June, July, August, September and October, 1987, petitioner complied
with the above condition by paying in checks the said sum of P2,000.00 monthly, through the
City Probation Officer, Perla Diaz Alonzo. Private respondent Francisco Lukban, Jr. voluntarily
accepted the checks and subsequently encashed them (p. 19, Rollo).

On September 19, 1987, private respondent Francisco Lukban, Jr. filed a motion for the
issuance of a writ of execution for the enforcement of the civil liability adjudged in his favor in
the criminal case. The motion was opposed by the petitioner.

On November 18, 1987, the trial court issued an order granting the motion for issuance of a writ
of execution. A motion for reconsideration was filed by petitioner but it was denied on December
22, 1987. After the denial of his motion for reconsideration, the petitioner filed directly with this
Court a petition for review of the trial court's order granting the motion for issuance of a writ of
execution. We referred the petition to the Court of Appeals in a resolution dated April 13, 1988
(p. 18, Rollo).

On March 16, 1989, respondent Court of Appeals rendered a decision affirming the order of the
trial court granting the motion for the issuance of a writ of execution. A motion for
reconsideration was filed by petitioner but respondent Court of Appeals denied the motion in a
resolution dated August 3, 1989 (pp. 9-10, Rollo).

The petitioner went to this Court via a petition for review which was filed on September 26, 1989
and raised the following assignment of errors:

ASSIGNMENT OF ERRORS

1. THE COURT OF APPEALS ERRED IN HOLDING THAT THE ORDER

DATED APRIL 15, 1987 HAS NOT MODIFIED THE DECISION OF OCTOBER
16, 1986 AS FAR AS THE CIVIL ASPECT IS CONCERNED.

2. THE COURT OF APPEALS ERRED IN HOLDING THAT THE CONDITION IN

THE PROBATION ORDER MODIFYING OR ALTERING THE CIVIL LIABILITY
OF THE OFFENDER IS UNAUTHORIZED AND NOT SANCTIONED BY LAW.
(p. 10, Rollo)
In its decision affirming the order of the trial court granting private respondent's motion for the
issuance of a writ of execution, respondent Court of Appeals advanced three (3) reasons: 1)
that the decision dated October 16, 1986 had become final and executory and the judge who
rendered the decision cannot lawfully alter or modify it; 2) that it is clear that the probation law
provides only for the suspension of sentence imposed on the accused; that it has absolutely no
beating on his civil liability and that none of the conditions listed under Section 10 of the
Probation Law relates to civil liability; and 3) that private respondent is not estopped because he
had nothing to do with the filing and the granting of the probation.

There is no question that the decision of October 16, 1986 in Criminal Case No. Q-33798
finding petitioner guilty beyond reasonable doubt of the crime of serious physical injuries had
become final and executory because the filing by respondent of an application for probation is
deemed a waiver of his right to appeal (See Section 4 of P.D. 968). Likewise, the judgment
finding petitioner liable to private respondent for P126,633.50 as actual damages and
P50,000.00 as consequential damages had also become final because no appeal was taken
therefrom. Hence, it is beyond the power of the trial court to alter or modify. In the case
of Samson v. Hon. Montejo, L-18605, October 31, 1963, 9 SCRA 419, 422-423 cited by
respondent appellate court, it was held:

. . . , once a decision becomes final, even the court which rendered it cannot
lawfully alter or modify the same (Rili, et al. v. Chunaco, et al., G.R. No. L-6630,
Feb. 29, 1956), especially, considering the fact that, as in the instant case, the
alteration or modification is material and substantial (Ablaza v. Sycip, et al., L-
12125, Nov. 23, 1960). In the case of Behn, Meyer & Co., v. J. Mcmicking et al.,
11 Phil. 276, (cited by respondents), it was held that "where a final judgment of
an executory character had been rendered in a suit the mission of the court is
limited to the execution and enforcement of the said final judgment in all of its
parts and in accordance with its express orders." The judgment in question is
clear, and with the amended writ of execution, the liability of petitioner is greatly
augmented, without the benefit of proper proceeding. (Emphasis ours)

We do not believe, however, that the order dated April 15, 1987 granting the application for
probation and imposing some conditions therein altered or modified the decision dated October
16, 1986. The April 15, 1987 Order of the trial court granting the application for probation and
providing as one of the conditions therein that petitioner indemnify private respondent P2,000.00
monthly during the period of probation did not increase or decrease the civil liability adjudged
against petitioner but merely provided for the manner of payment by the accused of his civil
liability during the period of probation.

It is the submission of private respondent that in the case of Budlong v. Apalisok, No. 60151,
June 24, 1983, 122 SCRA 935. We already ruled that "(T)he 'conviction and sentence' clause of
the statutory definition clearly signifies that probation affects only the criminal aspect of the
case."

The pronouncement in Apalisok that "probation affects only the criminal aspect of the case"
should not be given a literal meaning. Interpreting the phrase within the context of that case, it
means that although the execution of sentence is suspended by the grant of probation, it does
not follow that the civil liability of the offender, if any, is extinguished. This can be inferred from a
reading of the text of the Apalisok case where the issue that was involved therein was whether a
grant of probation carries with it the extinction of the civil liability of the offender. The reason for
ruling that the grant of probation does not extinguish the civil liability of the offender is clear,
"(T)he extinction or survival of civil liability are governed by Chapter III, Title V, Book I of the
Revised Penal Code where under Article 113 thereof provides that: '. . . , the offender shall
continue to be obliged to satisfy the civil liability resulting from the crime committed by him,
notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or
other lights, or has not been required to serve the same by reason of amnesty, pardon,
commutation of sentence, or any other reason.'" In the instant case, the issue is not the survival
or extinction of the civil liability of a probationer but, whether or not the trial court may impose as
a condition of probation the manner in which a probationer may settle his civil liability against
the offended party during the period of probation.

Respondent appellate court ruled that Section 10 of the Probation Law enumerates thirteen (13)
conditions of probation not one of which relates to the civil liability of the offender (p. 22, Rollo).

Section 4 of Presidential Decree No. 968 (Probation Law of 1976) provides:

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.

In the case of Florentino L. Baclayon v. Hon. Pacito G. Mutia, et al., G.R. No. 59298, April 30,
1984, 129 SCRA 148, We ruled that the conditions listed under Section 10 of the Probation Law
are not exclusive. Courts are allowed to impose practically any term it chooses, the only
limitation being that it does not jeopardize the constitutional rights of the accused. Courts may
impose conditions with the end that these conditions would help the probationer develop into a
law-abiding individual. Thus,

The conditions which trial courts may impose on a probationer may be classified
into general or mandatory and special or discretionary. The mandatory
conditions, enumerated in Section 10 of the Probation Law, require that
probationer should a) present himself to the probation officer designated to
undertake his supervision at such place as may be specified in the order within
72 hours from receipt of said order, and b) report to the probation officer at least
once a month at such time and place as specified by said officer. Special or
discretionary conditions are those additional conditions, listed in the same
Section 10 of the Probation Law, which the courts may additionally impose on the
probationer towards his correction and rehabilitation outside of prison. The
enumeration, however, is not inclusive. Probation statutes are liberal in character
and enable courts to designate practically any term it chooses as long as the
probationer's constitutional rights are not jeopardized. There are innumerable
conditions which may be relevant to the rehabilitation of the probationer when
viewed in their specific individual context. It should, however, be borne in mind
that the special or discretionary conditions of probation should be realistic,
purposive and geared to help the probationer develop into a law-abiding and self-
respecting individual. Conditions should be interpreted with flexibility in their
application, and each case should be judged on its own merits — on the basis of
the problems, needs and capacity of the probationer. . . . .
The primary consideration in granting probation is the reformation of the probationer. That is
why, under the law, a post sentence investigation, which is mandatory, has to be conducted
before a person can be granted probation to help the court in determining whether the ends of
justice and the best interest of the public as well as the defendant will be served by the granting
of the probation (Alvin Lee Koenig, Post Sentence Investigation, Its Importance and Utility, IBP
Journal, Special Issue on Probation, Vol. 5, No. 5, pp. 381-387). In the case of People v.
Lippner, 219 Cal. 395, 26 p. 2d, 457, 458 (1933), among those which has to be ascertained is
the financial condition and capacity of the offender to meet his obligations:

. . . there can be no real reformation of a wrong-doer unless there is at least a

willingness on his part to right the wrong committed, and the effect of such an act
upon the individual is of inestimable value, and to a large extent, determines
whether there has been any real reformation. To be clearly consonant with such
a purpose, the post sentence investigation must include a financial examination
of the offender's capability in order to work out a system of payment which can
effectively accomplish reimbursement without interfering with the defendant's
family and other financial responsibilities, according to U.S. Model Penal Code of
the American Law Institute. . . . (Sec. 301.1 Comments (Tentative Draft No. 2,
1954; Also 2 U.S. Dept. of Justice, Attorney General's Survey of Release
Procedures 38 (1939) cited in The Period and Conditions of Probation by Sergio
F. Go, IBP Journal Special Issue on Probation, Vol. 5, No. 5, pp. 406-420).
(Emphasis ours)

The trial court is given the discretion to impose conditions in the order granting probation "as it
may deem best." As already stated, it is not only limited to those listed under Section 10 of the
Probation Law. Thus, under Section 26, paragraph (d) of the Rules on Probation Methods and
Procedures, among the conditions which may be imposed in the order granting probation is:

Sec. 26. Other conditions of Probation. The Probation Order may also require the
probationer in appropriate cases, to:

xxx xxx xxx

(d) comply with a program of payment of civil liability to the victim or his heirs . . .
.

However, this is not to say that the manner by which the probationer should satisfy the payment
of his civil liability in a criminal case during the probation period may be demanded at will by
him. It is necessary that the condition which provides for a program of payment of his civil
liability will address the offender's needs and capacity. Such need may be ascertained from the
findings and recommendations in the post-sentence investigation report submitted by the
Probation Officer after investigation of the financial capacity of the offender and that such
condition is to the end that the interest of the state and the reformation of the probationer is best
served.

In the instant case, in the absence of any showing to the contrary, it is presumed that when the
trial court issued the order of April 15, 1987, the condition that the petitioner has to pay private
respondent P2,000.00 a month for the satisfaction of the civil liability adjudged against him was
recommended by the probation officer who prepared the post-sentence investigation and that
such condition is, in the judgment of the trial court, "deemed best" under the circumstances.
Counting from April 15, 1987, the date of issuance of the order granting probation which under
the law is also the date of its effectivity (Sec. 11, P.D. 968), the probation period must have
lapsed by now. Hence, the order for petitioner to indemnify the private respondent in the amount
of P2,000.00 monthly during the period of probation must have also lapsed. If such were the
case, there would therefore, be no more obstacle for the private respondent to enforce the
execution of the balance of the civil liability of the petitioner. However, the records are bereft of
allegations to this effect.

ACCORDINGLY, the petition is GRANTED. The decision dated March 16, 1989 of respondent
Court of Appeals affirming the order of the trial court granting the motion for the issuance of a
writ of execution as well as the resolution dated August 3, 1989 of the same court are hereby
REVERSED and SET ASIDE.

SO ORDERED.

Narvasa (Chairman), Gancayco and Griño-Aquino, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 188191 March 12, 2014

ENRIQUE ALMERO y ALCANTARA, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, MIRASOL BARTOLOME, CLARITA P. MATIAS, ROSENDO P.
MATIAS, and ANTONIO P. MATIAS, Respondents.

RESOLUTION

SERENO, CJ:

We resolve the petition filed under Rule 45 of the 1997 Rules of Civil Procedure by Enrique Almero y
Alcantara from the Decision of the Court of Appeals (CA) dated 26 September 2008 and Resolution
dated 29 May 2009 in CA-G.R. SP. No. 103030.1

THE MTC RULING IN CRIMINAL CASE No. 96-6531

Petitioner is the accused in Criminal Case No. 96-6531 for reckless imprudence resulting in
homicide and multiple physical injuries. After private respondents reserved the right to institute a
separate action for damages, trial ensued. On 8 January 2007, the Municipal Trial Court (MTC) of
Labo, Camarines Norte found petitioner guilty and sentenced him to suffer prision correccional in its
medium and maximum periods.

Petitioner filed an Application for Probation on 7 September 2007, reasoning that he was informed of
his conviction only upon being served the warrant for his arrest.2 Prosecutor Analie Velarde opposed
his application on the ground that he was known to be uncooperative, habitually absent, and had
even neglected to inform the court of his change of address. On 22 February 2007, the MTC denied
his application, prompting petitioner to file a special civil action with the Regional Trial Court (RTC).
While his first Petition raised the sole issue of the denial of his application for probation, he filed a
Supplemental Petition,3 which a) assailed the validity of the promulgation of the 8 January 2007
judgment; and b) impleaded private complainants Mirasol Bartolome, Clarita P. Matias, Rosendo P.
Matias and Antonio P. Matias.

THE RTC RULING IN SPECIAL CIVIL ACTION NO. 07-0012

In his supplemental Petition, petitioner stated that upon close scrutiny, he discovered that the
judgment itself was premature and flawed, because the MTC never ruled upon his Formal Offer of
Exhibits.4 The RTC found that the MTC committed grave abuse of discretion in rendering judgment
without first ruling on his Formal Offer of Exhibits since, technically, petitioner had not yet rested his
case. It also ruled that the promulgation of judgment was similarly tainted with grave abuse of
discretion, because petitioner was not present at the time, in violation of Section 6, Rule 120 of the
Rules of Court. Without addressing the issue of probation, the dispositive portion states:
WHEREFORE, premises considered, the instant petition for Certiorari is hereby GRANTED. The
judgment promulgated on 22 February, 2007 is hereby SET ASIDE AND NULLIFIED and the case is
remanded to the Municipal Trial Court of Labo, Camarines Norte for further proceedings.

The Director of the Bureau of Corrections, Muntinlupa City or any person acting in his behalf to
release immediately petitioner ENRIQUE ALMERO Y ALCANTARA from detention by virtue of the
property bond posted by him for his provisional liberty in Criminal Case No. 96-6531, unless he is
being detained for some other lawful cause or causes.

No costs.

SO ORDERED.5

THE CA RULING

The CA ruled that the RTC should have confined itself to determining whether or not the MTC
committed grave abuse of discretion in denying petitioner’s application for probation. Since no
appeal or other plain, speedy and adequate remedy in the ordinary course of law is available against
the denial of probation, a Rule 65 petition is clearly the appropriate remedy. However, the trial court
erred in taking cognizance of supplemental grounds assailing the judgment of conviction, because
an application for probation is a waiver of the right to appeal from the judgment of conviction and
effectively renders the same final. The CA ruled that even assuming petitioner failed to be present at
the promulgation of judgment, he had no one but himself to blame for failing to inform the MTC of his
change of address.6

On the argument that private respondents possessed no legal personality to represent the State in a
criminal case, the CA held that petitioner himself impleaded them in the certiorari petition before the
RTC. The CA also found that petitioner filed his application for probation only on 7 September 2007,
or more than one month after he received notice of the judgment of conviction. Inasmuch as the
grant of probation rests solely on the discretion of the court, the denial thereof cannot be considered
grave abuse, viz.:

WHEREFORE, premises considered, the trial court’s appealed January 28, 2008 Decision is
REVERSED and SET ASIDE. In lieu thereof, another is entered ordering the DISMISSAL of
appellee’s petition for certiorari.7

Petitioner comes before this Court, assigning the following errors:

I. The Court of Appeals committed an error of law in ruling that private complainants have
personality to appeal the 28 January 2008 Decision of the RTC.

II. The Court of Appeals committed an error of law in ruling that the RTC reversibly erred in
nullifying petitioner’s judgment of conviction.

III. The Court of Appeals committed an error of law in ruling that petitioner is not entitled to
probation.8

OUR RULING

The Petition lacks merit.

Anent the first issue, petitioner argues that in criminal cases, the offended party is the State, and that
private complainants’ interest is limited to the civil liability arising therefrom. Petitioner's application
for probation purportedly did not involve the civil aspect of the case. Heirs of the Late Francisco
Abueg v. Court of Appeals cited by the CA allegedly cannot apply, since it does not even discuss the
right of private complainants to interpose an appeal.

In the Comment9 it filed, the Office of the Solicitor General (OSG) reiterated that what petitioner filed
with the RTC was a petition for certiorari, which is a special civil action. It cannot be considered an
appeal in a criminal case over which only the State has an interest, but an appeal in a civil action
from which private persons can appeal in the event of an adverse outcome. Private respondents, in
their Comment,10 argued that the CA correctly applied Abueg, which is on all fours with the present
case. In Abueg, the accused was convicted of reckless imprudence resulting in homicide and
damage to property for crashing against and killing Francisco Abueg. Instead of filing an appeal, the
accused applied for probation. After the CA affirmed the grant of probation, the Supreme Court
entertained and acted upon the petition for certiorari filed by the victims’ heirs.11

We agree with the submission of the respondents. While the present petition originated from a
criminal proceeding, what petitioner filed with the RTC was a special civil action, in which he himself
impleaded private respondents. He cannot now belatedly change his stance to the prejudice of
private respondents, who would otherwise be deprived of recourse in a civil action they did not
initiate. In any case, this Court has consistently ruled that private parties may be clothed with
sufficient personality if the facts show that the ends of substantial justice would be better served, and
if the issues in the action could be determined in a more just, speedy and inexpensive manner.

In Narciso vs. Sta. Romana-Cruz,12 citing People v. Calo, Jr.,13 the Supreme Court ruled:

While the rule is, as held by the Court of Appeals, only the Solicitor General may bring or defend
actions on behalf of the Republic of the Philippines, or represent the People or the State in criminal
proceeding pending in this Court and the Court of Appeals, the ends of substantial justice would be
better served, and the issues in this action could be determined in a more just, speedy and
inexpensive manner, by entertaining the petition at bar. As an offended party in a criminal case,
private petitioner has sufficient personality and a valid grievance against Judge Adao’s order
granting bail to the alleged murderers of his (private petitioner’s) father.14 (Citations omitted.)

Furthermore, in Paredes v. Gopengco, it was held that parties in criminal cases have sufficient
personality as "person(s) aggrieved" to file the special civil action of prohibition and certiorari under
Sections 1 and 2 of Rule 65 in line with the underlying spirit of the liberal construction of the rules, to
wit:

Furthermore, as offended parties in the pending criminal case before petitioner judge, it cannot be
gainsaid that respondents have sufficient interest and personality as ‘person(s) aggrieved’ by
petitioner judge’s ruling on his non-disqualification to file the special civil action under sections 1 and
2 of Rule 65. Recently in line with the underlying spirit of a liberal construction of the Rules of Court
in order to promote their object, as against the literal application of Rule 110, section 2, we held,
overruling the implication of an earlier case, that a widow possesses the right as an offended party to
file a criminal complaint for the murder of her deceased husband.15

Petitioner’s second and third arguments are brought by an erroneous understanding of the nature of
probation and shall be discussed jointly.

Probation is not a right but a mere privilege, an act of grace and clemency conferred by the State,
and may be granted by the court to a deserving defendant. Accordingly, the grant of probation rests
solely upon the discretion of the court. It is to be exercised primarily for the benefit of organized
society, and only incidentally for the benefit of the accused.16

In Francisco v. Court of Appeals, the Court explained:

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… he now applies for probation as an "escape hatch"
thus rendering nugatory the appellate court's affirmance of his conviction.17

Aside from the goals of according expediency and liberality to the accused, the rationale for the
treatment of appeal and probation as mutually exclusive remedies is that they rest on diametrically
opposed legal positions. An accused applying for probation is deemed to have accepted the
judgment. The application for probation is an admission of guilt on the part of an accused for the
crime which led to the judgment of conviction.18 This was the reason why the Probation Law was
amended: precisely to put a stop to the practice of appealing from judgments of conviction – even if
the sentence is probationable – for the purpose of securing an acquittal and applying for the
probation only if the accused fails in his bid.19

Similarly, in the present case, petitioner cannot make up his mind whether to question the judgment,
or apply for probation, which is necessarily deemed a waiver of his right to appeal.20 While he did not
file an appeal before applying for probation, he assailed the validity of the conviction in the guise of a
petition supposedly assailing the denial of probation. In so doing, he attempted to circumvent P.D.
No. 968, as amended by P.D. 1990, which seeks to make appeal and probation mutually exclusive
remedies.

The assignment of errors in the Petition before us reflects the diametrically opposed positions taken
by accused petitioner. On the one hand, he bewails the defects committed by the trial court during
the promulgation of the judgment, thus casting doubt on the judgment itself. Yet in the same breath,
he persists in his application for probation, despite the waiver and admission of guilt implicit in any
procedure for probation – precisely the unhealthy wager the law seeks to prevent.

Petitioner applied for probation beyond the reglementary period, yet the trial court still allowed the
filing before ultimately denying it for lack of merit. Regarding this delay and the other defects imputed
by petitioner to the RTC, we concur with the findings of the CA:

(W)e find that public respondent committed no grave abuse of discretion in denying appellee’s
application for probation. Granted that appellee had not received the notice of the January 8, 2007
decision rendered in Criminal Case No. 06-6531, it appears from the record that appellee had no
one but himself to blame for the procedural quagmire he subsequently found himself in. In denying
appellee’s motion for reconsideration of the September 18, 2007 denial of the application for
probation, public respondent distinctly ruled as follows:

x x x. (T)he application has been filed out of time as accused himself admitted in the motion. He1âwphi1

blames Atty. Evan D. Dizon, his former counsel, for not notifying the court of his change of address
but Atty. Dizon himself had been trying to contact accused since 2001 even before he filed his formal
offer of evidence since all notices sent to the accused’s given address have been returned to this
court since 2001. If it is true that he moved to Cavite only in 2003, why were said notices returned
with notations ‘unknown,’ ‘unclaimed,’ or ‘moved’?21
This Court will not countenance pleas for liberality in adverse outcomes caused by the negligence
and evasiveness of the parties themselves.

WHEREFORE, in view of the foregoing, we deny the instant Petition for lack of merit. The Court of
Appeals Decision and Resolution in CA-G.R. SP No. 103030 dated 26 September 2008 and 29 May
2009 are hereby AFFIRMED, respectively.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Chief Justice, Chairperson

WE CONCUR:

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

LUCAS P. BERSAMIN MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice

BIENVENIDO L. REYES
Associate Justice
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 114343 December 28, 1995

ANGELO CAL, petitioner,

vs.
COURT OF APPEALS, HON. FE ALBANO MADRID, et al. and PEOPLE OF THE
PHILIPPINES, respondents.

R E SO L U T I O N

PANGANIBAN, J.:

This is a petition for review on certiorari of the Decision of the respondent Court of
Appeals1 dated November 11, 1993, denying petitioner's petition for certiorari, prohibition
and mandamus, with prayer for restraining order, to challenge the orders of the Regional Trial
Court (Branch 21) of Santiago, Isabela, in Criminal Case No. 0822, entitled "People vs. Angelo
Cal".

The facts of the case are as follows: After an information for illegal recruitment was filed with the
aforementioned trial court on September 5, 1990, petitioner posted bail for his provisional
liberty. On June 8, 1992, a decision was rendered in the aforesaid criminal case wherein the
petitioner herein was found guilty of violation of Article 36(a) of the Labor Code as amended
[illegal recruitment], and sentenced to, among other things, suffer imprisonment of four years
and pay a fine of P20,000. The decision was promulgated on July 15, 1992, in the presence of
the petitioner, after which he was committed to jail by virtue of an order of commitment issued
the same day. The following day, July 16, petitioner, assisted by his counsel, filed with the
court a quo an application for probation, an affidavit of recognizance, and an application for
release on recognizance. Also on the same day, the trial court issued an order directing the
petitioner to report to the Provincial Probation and Parole Officer, and for the latter to conduct an
investigation of the applicant and submit his report and recommendation within sixty days.

Almost two weeks later, on July 29, 1993, petitioner filed with the trial court a "Motion to
Withdraw Application for Probation and Notice of Appeal", alleging that he "hastily filed his
application 'because of the threats employed upon him by the authorities' and that 'he was not
able to intelligently consult with his lawyer and reflect on the legal consequences and effects of
his application for probation under the law' so that he may not be considered to have waived his
right to appeal the decision" (decision, p. 1; rollo, p. 52). On account of the serious nature of
said allegations, the lower court conducted a full-blown hearing to verify the petitioner's
allegations. However, the court denied petitioner's motion to withdraw application, etc. on
November 20, 1992, when it was determined that the accusations were baseless, and that
petitioner's counsel did in fact properly advise him as to the effects and consequences of appeal
and of probation, and that, notwithstanding such advice, in the words of the trial court —

. . . (t)he accused chose the easy way out which was to apply for probation in
order that he will not be detained because he could not post his bailbond. But
later he went to talk to his employer Dindo Vales in Manila. He was induced to
appeal. Understandably so because in the decision it was also found out that the
recruitment activities of Dindo Vales and his placement agency did not have any
license to recruit.

It is unfortunate that the accused in attempting to withdraw his application for

probation, would impute negligence, misconduct, fraud and worst threats upon
his lawyer and a personnel of the Court whose only fault was to help him and
accommodate his lawyer's request. The accused would feign ignorance and
stupidity in not knowing what he was doing when in fact his mind was working in
a diabolical way by imputing fraud and wrongdoing in others. What simply
happened here was that the accused decided to apply for probation because it
was an easy way to avoid being detained in jail, to avoid the trouble of putting up
a bailbond; to avoid further expenses of counsel and to end the case once and
for all without suffering incarceration. But after his employer induced him to
appeal, helped him to post his bail bond and perhaps even provided him with
another counsel, the accused changed his mind. He was fully aware and he
knew what he was doing. He was properly advised by his lawyer who told him
that if he will file his application for probation, he would lost his right to appeal
although of course he was given contrary advice by his employer in Manila. It
would be a dangerous precedent to allow the accused to make a mockery of the
Probation Law. The case of Yusi vs. Morales2 cannot apply to him.

WHEREFORE, in the light of the foregoing considerations, the appeal is

DENIED. The convict Angelo Cal is directed to make manifest his desire to
pursue his application for probation by reporting to the Probation and Parole
Officer, Cauayan, Isabela, within 72 hours from receipt of this order, otherwise he
will be ordered to serve his sentence.

SO ORDERED.

On December 14, 1992, petitioner filed a "Notice of Appeal from the Order dated November 20,
1992", which was denied by the court a quo on January 4, 1993, on the ground that petitioner
had availed of the benefits of the Probation Law and therefore cannot avail of the remedy of
appeal. Petitioner's motion for reconsideration of the last-mentioned order was likewise denied
through an order dated June 1, 1993.

Then petitioner filed on July 9, 1993 a petition for certiorari, prohibition and mandamus, with
prayer for restraining order, with the respondent Court of Appeals, which denied due course to
and dismissed the same in its Decision of November 11, 1993. A motion for reconsideration
thereof was also denied, for having been filed out of time by 23 days. Hence this petition before
us.

Petitioner alleges that respondent Court "gravely erred and abused its discretion" (a) in affirming
the trial court's order of July 15, 1992 for petitioner's immediate confinement to jail after
promulgation of judgment but before same became final and executory, i.e., prior to the lapse of
the period for filing appeal, notwithstanding that petitioner had posted bail, and (b) in affirming
the trial court's order of November 20, 1992 which denied petitioner's motion to withdraw his
application for probation and which did not give due course to his notice of appeal (petition, pp.
7, 11).

After deliberating on the petition, the public respondent's comment thereon filed by the Solicitor
General, and petitioner's reply to comment, this Court is convinced that the petition is
unmeritorious.

With respect to the first issue, there is no dispute that, as a rule, and unless the trial court
directs otherwise, the bail bond posted by an accused remains in force at all stages of the case
until its final determination. Now, in this case, since the trial court, immediately after the
promulgation of judgment (and without waiting for the finality thereof), issued a commitment
order despite petitioner's being out on bail, petitioner should have challenged the legality of
such commitment order. However, instead of doing so, petitioner, after having been properly
advised by counsel on the effects and consequences of probation, voluntarily — and with the
assistance of counsel — filed an application for probation, along with an affidavit of
recognizance and an application for release on recognizance of his counsel. Petitioner's
actuations thus foreclosed his right to appeal.

Section 4 of P.D. No. 968, pertaining to the grant of probation, was amended by P.D. 1990 in
order to make appeal and probation mutually exclusive remedies.3 Thus, Sec. 4 provides
specifically that "(T)he filing of the application (for probation) shall be deemed a waiver of the
right to appeal".

The purpose of the amendment [of Sec. 4 of P.D. 968 by P.D. 1990] was,
precisely, to prohibit an application for probation if the accused has perfected an
appeal from the judgment of conviction [and vice versa].

xxx xxx xxx

P.D. No. 1990 [which took effect on January 15, 1986] was issued when it was
observed that even if a person's conviction was finally affirmed after he had
exhausted the appeal process (usually up to this Court), he nevertheless could
still apply for probation and thus in effect undo such affirmance. To prevent loss
of time, money, and effort on the part of the State in this wasteful exercise, the
law was amended to make appeal and probation mutually exclusive remedies.
(Bernardo vs. Balagot, supra.)

And that is only right since the legal positions behind appeal and probation, respectively, are
diametrically opposed. This is because an accused applying for probation is deemed to have
accepted the judgment in fact, ". . . the application for probation is an admission of guilt on the
part of an accused for the crime which led to the judgment of conviction and . . . the application
for probation is considered a waiver upon his part to file an appeal, . . .4

Thus, in this case, the petitioner's application for probation had the effect of a final determination
of his case, and the cancellation of his bail bond. Therefore, the respondent Court of Appeals
could not have done otherwise than to affirm the trial court's order of July 15, 1992 for
petitioner's immediate confinement after promulgation of judgment, in view of the subsequent
application for probation which rendered the said judgment final and immediately executory.

As for the second issue, although petitioner insists on faulting the courts a quo for denying his
motion to withdraw his application for probation and rejecting his notice of appeal, his position is
nonetheless untenable. The respondent Court of Appeals correctly held that the trial court's
order of November 20, 1992, denying the petitioner's motion to withdraw his application for
probation and rejecting his notice of appeal, partook of the nature of an order granting
probation, which is not appealable.

Inasmuch as "(P)robation is a mere privilege and its grant rests upon the discretion of the court .
. . (and) the grant of probation is . . . not automatic or ministerial"5, and considering further that
"(a)n order granting or denying probation shall not be appealable"6, therefore, the appellate
Court correctly affirmed the trial court's order of November 20, 1992, and denied the petition
for certiorari, prohibition and mandamus, etc.

WHEREFORE, upon the foregoing considerations, this Court Resolves to DENY the instant
petition, petitioner having failed to show any reversible error committed by the respondent
appellate Court. No costs.

Romero, Melo and Vitug, JJ., concur.

 Republic of the Philippines
Department of Justice
BOARD OF PARDONS AND PAROLE
DOJ Agencies Bldg., NIA Rd., Cor. East Ave., Diliman, Quezon City

RESOLUTION NO. 24-4-10

RE: Amending and Repealing Certain Rules and Sections of the Rules on Parole and
Amended Guidelines for Recommending Executive Clemency of the 2006 Revise Manual
of the Board of Pardons and Parole

WHEREAS, Section 19, Article VII of the 1987 Philippine Constitution provides that the
President, except in cases of impeachment or as otherwise provided therein, may grant
reprieves, communications and pardons, and remit fines and forfeitures, after conviction by the
final judgment;

WHEREAS, in accordance with the above-cited constitutional provision, the President has the
plenary power to grant executive clemency, except on the following three (3) constitutional
limitations to wit:

1. In cases of impeachment;

2. In cases involving of election laws, rules and regulations as provided for in Section 5,
Paragraph C, Article IX of the 1987 Philippine Constitution without the favorable
recommendation of the Commission on Elections; and

3. In cases where the conviction is on appeal or has not become final and executor;

WHEREAS, the eight (8) disqualifications or exceptions enumerated and provided for in Section
5 of the Amended Guidelines for Recommending Executive Clemency of the 2006 BPP Revised
Manual are not in consonance with the provisions of Section 19, Article VII of the 1987
Philippine Constitution, constitute as limitations on the pardoning power of the President, and
violate the time-honored principle of equal protection of the laws enshrined in the Bill of Rights,
thus defeating the primary purpose of restorative justice;

WHEREAS, Section 5, Paragraph a, b, c, d, e, f, g, and h of the Amended Guidelines for

Recommending Executive Clemency discriminates against certain criminal offenders and
denies them equal opportunity for executive clemency;

WHEREAS, under Section 3 of Republic Act No. 9346, otherwise known as "An Act Prohibiting
the Imposition of Death Penalty in the Philippines", enacted on June 24, 2006, persons
convicted of offenses punished with reclusion perpetua, or whose sentences were reduced to
reclusion perpetua by reason of this Act shall not be eligible for parole under Act No. 4103,
otherwise known as "The Indeterminate Sentence Law", as amended;

WHEREAS, under Executive Order No. 83 dated January 11, 1937, the Board of Pardons and
Parole is mandated to assist the President in exercising the power of executive clemency; and
WHEREAS, pursuant to the mandate of the law to redeem and uplift valuable human resources
and prevent excessive deprivation of liberty, there is a need to provide opportunities to qualified
and deserving inmates in order to ease congestion now plaguing the correctional institutions.

WHEREFORE, premises considered, the Board resolves, as it is hereby Resolved, to AMEND

and REPEAL the following provisions of the Rules on Parole and the Amended Guidelines for
Recommending Executive Clemency of the 2006 BPP Revised Manual:

I. Rule 2.1. of the Rules on Parole is hereby AMENDED to read as follows:

"RULE 2.1. Eligibility for Review of A Parole Case - an inmate's case may be eligible for review
by the board provided:

a. Inmate is serving an indeterminate sentence the maximum period of which

exceeds one (1) year;

b. Inmate has served the minimum period of the indeterminate sentence;

c. Inmate's conviction is final and executor;

In case the inmate has one or more co-accused who had been convicted, the director/warden
concerned shall forward their prison records and carpetas/jackets at the same time.

d. Inmate has no pending criminal case; and

e. Inmate is serving sentence in the national penitentiary, unless the confinement

of said inmate in a municipal, city, district or provincial jail is justified.

A national inmate, for purposes of these Rules, is one who is sentenced to a maximum term of
imprisonment of more than three (3) years or to a fine of more than five thousand pesos; or
regardless of the length of sentence imposed by the Court, to one sentenced for violation of the
customs law or other laws within the jurisdiction of the Bureau of Customs or enforceable by it,
or to one sentenced to serve two (2) or more prison sentences in the aggregate exceeding the
period of three (3) years."

II. Rule 2.2, Paragraphs i to l of the Rules on Parole are hereby DELETED for being inconsistent
with the provisions of Section 2 of the "Indeterminate Sentence Law", as amended. Further, said
Rule is hereby AMENDED to read as follows:

"RULE 2.2. Disqualifications for Parole - Pursuant to Section 2 of Act No. 4103, as amended,
otherwise known as the "Indeterminate Sentence Law", parole shall not be granted to the
following inmates:

a. Those convicted of offenses punished with death penalty of life imprisonment;

b. Those convicted of treason, conspiracy or proposal to commit treason or

espionage;

c. Those convicted of misprision treason, rebellion, sedition or coup d' etat;

 d. Those convicted of piracy or mutiny on the high seas or Philippine waters;

e. Those who are habitual delinquents, i.e., those who, within a period of ten (10)
years from the date of release from prison or last conviction of the crimes of
serious or less serious physical injuries, robbery, theft, estafa, and falsification,
are found guilty of any of said crimes a third time or oftener;

f. Those who escaped from confinement or evaded sentence;

g. Those who having been granted conditional pardon by the President of the
Philippines shall have violated any of the terms thereof;

h. Those whose maximum term of imprisonment does not exceed one (1) year or
those with definite sentence;

i. Those convicted of offenses punished with reclusion perpetua, or whose

sentences were reduced to reclusion perpetua by reason of Republic Act No.
9346 enacted on June 24, 2006, amending Republic Act No. 7659 dated January
1, 2004; and

j. Those convicted for violation of the laws on terrorism, plunder and transnational
crimes."

III. Rule 2.3 of the Rules on Parole is hereby AMENDED to read as follows:

"RULE 2.3. Review Upon Petition or referral by the correctional and/or other agencies - a parole
case may be reviewed by the Board upon petition or referral by the correctional and/or other
agencies if inmate is not otherwise disqualified under Rule 2.2."

IV. Section 1 of the Amended Guidelines for Recommending Executive Clemency is hereby
AMENDED to read as follows:

SECTION 1. Plenary Power of the President to Grant Executive Clemency - Under Section 19
Article VII of the Constitution, except in cases of impeachment or as otherwise provided therein,
the President may grant reprieves, commutations and pardons, and remit fines and forfeitures,
after conviction by final judgment. Executive clemency rests exclusively within the sound
discretion of the President, and is exercised with the objective of preventing a miscarriage of
justice or correcting a manifest injustice.1avvphi1

These Guidelines are meant solely for the guidance of the Board of Pardons and Parole
(hereafter the "Board") in the performance of its duty to assist the President in exercising the
power of executive clemency pursuant to Executive Order No. 83 dated January 11, 1937.
These Guidelines create no vested or enforceable rights in persons applying for executive
clemency."

V. Section 3 of the Amended Guidelines for Recommending Executive Clemency is hereby

AMENDED to read as follows:
"SECTION 3. Extraordinary Circumstances - The Board shall recommend to the President the
grant of executive clemency when any of the following extraordinary circumstances are present:

a. The trial court or appellate court in its decision recommended the grant of
executive clemency for the inmate;

b. Under the peculiar circumstances of the case, the penalty imposed is too
harsh compared to the crime committed;

c. Evidence which the court failed to consider, before conviction which would
have justified an acquittal of the accused;

d. Inmates who were over fifteen (15) years but under eighteen (18) years of age
at the time of the commission of the offense;

e. Inmates who are seventy (70) years old and above whose continued
imprisonment is inimical to their health as recommended by a physician of the
Bureau of Corrections Hospital and certified under oath by a physician
designated by the Department of Health;

f. Inmates who suffer from serious, contagious or life-threatening illness disease,

or with severe physical disability such as those who are totally blind, paralyzed,
bedridden, etc., as recommended by a physician of the Bureau of Corrections
Hospital and certified under oath by a physician designated by the Department of
Health;

g. Alien inmates where diplomatic considerations and amity among nations

necessitate review; and

h. Such other similar or analogous circumstances whenever the interest of justice

will be served thereby."

VI. Section 4 of the Amended Guidelines for Recommending Executive Clemency is hereby
AMENDED to read as follows:

"SECTION 4. Other circumstances - When none of the extraordinary circumstances enumerated

in Section 3 exist, the Board may nonetheless review and/or recommend to the President the
grant of executive clemency to an inmate provided the inmate meets the following minimum
requirements of imprisonment:

A. For Commutation of Sentence, the inmate should have served:

1. at least one-third (1/3) of the definite or aggregate prison terms;

2. at least one-half (1/2) of the minimum of the indeterminate prison term

or aggregate minimum of the indeterminate prison terms;
 3. at least ten (10) years for inmates sentenced to one (1) reclusion
perpetua or one (1) life imprisonment, for crimes/offenses not punished
under Republic Act No. 7659 and other special laws;

4. at least thirteen (13) years for inmates whose indeterminate and/or

definite prison terms were adjusted to a definite prison term of forty (40)
years in accordance with the provisions of Article 70 of the Revised Penal
Code as amended;

5. at least fifteen (15) years for inmates convicted of heinous

crimes/offenses as defined in Republic Act No. 7659 or other special
laws, committed on or after January 1, 1994 and sentenced to one (1)
reclusion perpetua or one (1) life imprisonment;

6. at least eighteen (18) years for inmates convicted and sentenced to

reclusion perpetua or life imprisonment for violation of Republic Act No.
6425, as amended, otherwise known as "The Dangerous Drugs Act of
1972" or Republic Act No. 9165 also known as "The Comprehensive
Dangerous Drugs Act of 2002", and for kidnapping for ransom or violation
of the laws on terrorism, plunder and transnational crimes;

7. at least twenty (20) years for inmates sentenced to two (2) or more
reclusion perpetua or life imprisonment even if their sentences were
adjusted to a definite prison term of forty (40) years in accordance with
the provisions of Article 70 of the Revised Penal Code, as amended;

8. at least twenty-five (25) years for inmates originally sentenced to death

penalty but which was automatically reduced or commuted to reclusion
perpetua or life imprisonment.

B. For Conditional Pardon, an inmate should have served at least one-half (_) of
the maximum of the original indeterminate and/or definite prison term."

VII. Section 5 of the Amended Guidelines for Recommending Executive Clemency is hereby
REPEALED.

VIII. Section 10 of the Amended Guidelines for Recommending Executive Clemency is hereby
AMENDED to read as follows:

"SECTION 10. Notice to the Offended Party - In all cases when an inmate is being considered
for executive clemency, the Board shall notify the offended party or, in the event that the
offended party is unavailable for comment or otherwise cannot be located, the immediate
relatives of the offended party. Said persons shall be given thirty (30) days from notice to
comment on whether or not executive clemency may be granted to an inmate. Provided that, in
matters of extreme urgency or when the interest of justice will be served thereby, such notice
may be waived or dispensed with by the Board. In such a case, the Board shall explain the
reason for the waiver of such notice in the Board resolution recommending executive
clemency."
IX. Section 11 of the Amended Guidelines for Recommending Executive Clemency is hereby
AMENDED to read as follows:

"SECTION 11. Publication of Names of Those Being Considered for Executive

Clemency - The Board shall cause the publication once in a newspaper of national
circulation the names of inmates who are being considered for executive clemency.
Provided, however, that in cases of those convicted of offenses punished with reclusion
perpetua or life imprisonment by reason of Republic Act No. 9346, publication shall be
once a week for three (3) consecutive weeks.

Any interested party may send to the Board written objections/comments/information

relevant to the cases of inmates being considered for executive clemency not later than
thirty (30) days from date of publication.

Provided that, in matters of extreme urgency or when the interest of justice will be
served thereby, above publication may be waived or dispensed with. In such publication
in the Board resolution recommending executive clemency."

X. This Resolution shall take effect upon approval by the Secretary of Justice and fifteen (15)
days after its publication in a newspaper of general circulation. Let copies of this Resolution be
likewise sent to the Office of the President through the Executive Secretary, and the University
of the Philippines (UP) Law Center.

(Sgd.) NATIVIDAD G. DIZON

Chairman of the Board

(Sgd.) ARTEMIO C. ASPIRAS (Sgd.) RAMON A. BARCELONA

Member Member

(Sgd.) JIMMY T. GIRON (Sgd.) ALEJANDRO M. VILLAMIL

Member Member

(Sgd.) ISMAEL J. HERRADURA (Sgd.) JOSEFINA M. SANTOS

Ex-Officio Member Member

(Sgd.) PERLITA J. TRIA TIRONA

Member

APPROVED:

(Sgd.) ALBERTO C. AGRA

Acting Secretary of Justice

ATTESTED

(Sgd.) REYNALDO G. BAYANG

Executive Secretary of he Board