Presidential Decree No.

968 (Probation Law)

Among the different grounds of partial extinction of criminal liability, the most important is
probation. Probation is a manner of disposing of an accused who have been convicted by a trial
court by placing him under supervision of a probation officer, under such terms and conditions that
the court may fix. This may be availed of before the convict begins serving sentence by final
judgment and provided that he did not appeal anymore from conviction.

Without regard to the nature of the crime, only those whose penalty does not exceed six years of
imprisonment are those qualified for probation. If the penalty is six years plus one day, he is no
longer qualified for probation.

If the offender was convicted of several offenses which were tried jointly and one decision was
rendered where multiple sentences imposed several prison terms as penalty, the basis for
determining whether the penalty disqualifies the offender from probation or not is the term of the
individual imprisonment and not the totality of all the prison terms imposed in the decision. So even
if the prison term would sum up to more than six years, if none of the individual penalties exceeds
six years, the offender is not disqualified by such penalty from applying for probation.

On the other hand, without regard to the penalty, those who are convicted of subversion or any
crime against the public order are not qualified for probation. So know the crimes under Title III,
Book 2 of the Revised Penal Code. Among these crimes is Alarms and Scandals, the penalty of which
is only arresto menor or a fine. Under the amendment to the Probation Law, those convicted of a
crime against public order regardless of the penalty are not qualified for probation.

May a recidivist be given the benefit of Probation Law?

As a general rule, no.

Exception: If the earlier conviction refers to a crime the penalty of which does not exceed 30 days
imprisonment or a fine of not more than P200.00, such convict is not disqualified of the benefit of
probation. So even if he would be convicted subsequently of a crime embraced in the same title of
the Revised Penal Code as that of the earlier conviction, he is not disqualified from probation
provided that the penalty of the current crime committed does not go beyond six years and the
nature of the crime committed by him is not against public order, national security or subversion.

Although a person may be eligible for probation, the moment he perfects an appeal from the
judgment of conviction, he cannot avail of probation anymore. So the benefit of probation must be
invoked at the earliest instance after conviction. He should not wait up to the time when he
interposes an appeal or the sentence has become final and executory. The idea is that probation has
to be invoked at the earliest opportunity.

An application for probation is exclusively within the jurisdiction of the trial court that renders the
judgment. For the offender to apply in such court, he should not appeal such judgment.
Once he appeals, regardless of the purpose of the appeal, he will be disqualified from applying for
Probation, even though he may thereafter withdraw his appeal.

If the offender would appeal the conviction of the trial court and the appellate court reduced the
penalty to say, less than six years, that convict can still file an application for probation, because the
earliest opportunity for him to avail of probation came only after judgment by the appellate court.

Whether a convict who is otherwise qualified for probation may be give the benefit of probation or
not, the courts are always required to conduct a hearing. If the court denied the application for
probation without the benefit of the hearing, where as the applicant is not disqualified under the
provision of the Probation Law, but only based on the report of the probation officer, the denial is
correctible by certiorari, because it is an act of the court in excess of jurisdiction or without
jurisdiction, the order denying the application therefore is null and void.

Probation is intended to promote the correction and rehabilitation of an offender by providing him
with individualized treatment; to provide an opportunity for the reformation of a penitent offender
which might be less probable if he were to serve a prison sentence; to prevent the commission of
offenses; to decongest our jails; and to save the government much needed finance for maintaining
convicts in jail

Probation is only a privilege. So even if the offender may not be disqualified of probation, yet the
court believes that because of the crime committed it was not advisable to give probation because it
would depreciate the effect of the crime, the court may refuse or deny an application for probation.

Generally, the courts do not grant an application for probation for violation of the Dangerous Drugs
Law, because of the prevalence of the crime. So it is not along the purpose of probation to grant the
convict the benefit thereof, just the individual rehabilitation of the offender but also the best
interest of the society and the community where the convict would be staying, if he would be
released on probation. To allow him loose may bring about a lack of respect of the members of the
community to the enforcement of penal law. In such a case, the court even if the crime is
probationable may still deny the benefit of probation.

Consider not only the probationable crime, but also the probationable penalty. If it were the non-
probationable crime, then regardless of the penalty, the convict cannot avail of probation. Generally,
the penalty which is not probationable is any penalty exceeding six years of imprisonment. Offenses
which are not probationable are those against natural security, those against public order and those
with reference to subversion.

Persons who have been granted of the benefit of probation cannot avail thereof for the second time.
Probation is only available once and this may be availed only where the convict starts serving
sentence and provided he has not perfected an appeal. If the convict perfected an appeal, he forfeits
his right to apply for probation. As far as offenders who are under preventive imprisonment, that
because a crime committed is not bailable or the crime committed, although bailable, they cannot
afford to put up a bail, upon promulgation of the sentence, naturally he goes back to detention, that
does not mean that they already start serving the sentence even after promulgation of the sentence,
sentence will only become final and executory after the lapse of the 15-day period, unless the
convict has waived expressly his right to appeal or otherwise, he has partly started serving sentence
and in that case, the penalty will already be final and exeuctory, no right to probation can be applied
for.

Probation shall be denied if the court finds:

(1) That the offender is in need of correctional treatment that can be provided most effectively by
his commitment to an institution;

(2) That there is undue risk that during the period of probation the offender will commit another
crime; or

(3) Probation will depreciate the seriousness of the crime.

The probation law imposes two kinds of conditions:

(1) Mandatory conditions; and

(2) Discretionary conditions.

Mandatory conditions:

(1) The convict must report to the Probation Officer (PO) designated in the court order approving his
application for Probation within 72 hours from receipt of Notice of such order approving his
application; and

(2) The convict, as a probationer, must report to the PO at least once a month during the period of
probation unless sooner required by the PO.

These conditions being mandatory, the moment any of these is violated, the probation is cancelled.

Discretionary conditions:

The trial court which approved the application for probation may impose any condition which may
be constructive to the correction of the offender, provided the same would not violate the
constitutional rights of the offender and subject to this two restrictions: (1) the conditions imposed
should not be unduly restrictive of the probationer; and (2) such condition should not be
incompatible with the freedom of conscience of the probationer.