Escape hatch

Probation is a special privilege granted by the State to a penitent qualified offender. It must be availed at the first opportunity to show that the offender is really penitent. Is there a fixed period for its filing? This case of Connie answers that question.

The case involved a parcel of land (lot 3608) registered in the names of Connie’s grandmother Elena and the latter’s five other siblings under OCT RO-2740. By virtue of an “Extrajudicial Declaration of Heirs with Waiver of Rights and Partition Agreement” Lot 3608 was subdivided into two lots: 3608-A which was transferred in the name of Medy under TCT No. 113266 and 3608-B under TCT No. 113267 which was transferred in the name of a buyer pursuant to Deed of Absolute Sale executed by Connie.

It turned out however that the signatures appearing on the said Extrajudicial Declaration were not the signatures of the true registered co-owners of Lot 3608. It was also discovered that Connie and her sister Loleng caused it to appear that one of the co-owners who was already dead, signed the document.

So Connie, Loleng, and Medy were accused before the Regional Trial Court (RTC) of Falsification of Public Documents under Article 172 (1) in relation to Article 171 of the Revised Penal Code. Only Connie and Loleng were arraigned while their co-accused Medy was never arrested.

On November 20, 2000, the RTC acquitted Loleng but convicted Connie and sentenced her to 4 years, 2 months and 1 day to 6 years of imprisonment. Connie filed a Motion for Reconsideration of said decision. Due to the vacancy in the RTC, the said motion was resolved only on November 20, 2002. The order of denial was received by Connie’s counsel on December 13, 2002.

Due to Connie’s failure to interpose a timely appeal, an entry of judgment was issued on June 5, 2003. On June 12, 2003, Connie, through counsel filed Motions to Recall Warrant of arrest and to Vacate Entry of Judgment alleging that she did not receive the order of denial. Pending resolution of this motion, Connie also filed a Notice of Appeal on June 17, 2003.

On July 22, 2003, the RTC denied Connie’s Motions and Notice of Appeal. On August 25, 2003, Connie moved for a reconsideration of that order of denial and intimated her desire to file for probation instead of appealing the judgment of conviction. On November 20, 2003, the RTC denied Connie’s motion for reconsideration and to allow her to avail of the benefits of the Probation Law. This order was affirmed on appeal to the Court of Appeals (CA). The CA said that the notice of appeal was filed out of time and, as a result, the application for probation must necessarily fail because the remedies of appeal and probation are alternative and mutually exclusive. Was the CA correct?

Yes. Probation essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the State the time, effort and expense to jettison an appeal.

Under section 4 of the Probation Law, an application for probation must be made within the period for perfecting an appeal, and the filing of the application after the time to appeal has lapsed is injurious to the recourse of the applicant. Under the Rules of Court (Rule 122 Section 6) an appeal must be taken within 15 days from the promulgation of judgment or from notice of the final order appealed from. The application for probation must be filed within said period so as to encourage offenders who are willing to be reformed and rehabilitated, to avail themselves of probation at the first opportunity. In this case, Connie filed her application for probation almost eight months from the time the assailed judgment of the RTC became final. Clearly the application was filed out of time

Furthermore the law expressly requires that an accused must not have appealed his conviction before he can avail himself of probation to eliminate the element of speculation on his part — 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.”. In this case Connie already filed a Notice of Appeal in the RTC before she filed the application for probation. So said application must necessarily fail (Sable vs. People, G.R. 177961, April 7, 2009).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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