Arnel Colinares vs.

People of the Philippines

Arnel Colinares was found guilty by the Regional Trial Court (RTC) of frustrated
homicide and sentenced him to suffer imprisonment from two years and four
months of prision correccional, as minimum, to six years and one day
of prisionmayor, as maximum. Since the maximum probationable imprisonment
under the law was only up to six years, Arnel did not qualify for probation.
Colinares appealed to the Court of Appeals invoking self-defense and, alternatively,
seeking conviction for the lesser crime of attempted homicide with the consequent
reduction of the penalty imposed on him. However, the Court of Appeals affirmed
the decision of the RTC.
SC: Ordinarily, Arnel would no longer be entitled to apply for probation, he having
appealed from the judgment of the RTC convicting him for frustrated homicide.
But, the Court finds Arnel guilty only of the lesser crime of attempted homicide and
holds that the maximum of the penalty imposed on him should be lowered to
imprisonment of four months of arresto mayor, as minimum, to two years and four
months of prision correccional, as maximum. With this new penalty, it would be but
fair to allow him the right to apply for probation upon remand of the case to the
RTC.
Some in the Court disagrees. They contend that probation is a mere privilege
granted by the state only to qualified convicted offenders. Section 4 of the
probation law (PD 968) provides: That no application for probation shall be
entertained or granted if the defendant has perfected the appeal from the judgment
of conviction.[15] Since Arnel appealed his conviction for frustrated homicide, he
should be deemed permanently disqualified from applying for probation.
But, firstly, while it is true that probation is a mere privilege, the point is not that
Arnel has the right to such privilege; he certainly does not have. What he has is the
right to apply for that privilege. The Court finds that his maximum jail term should
only be 2 years and 4 months. If the Court allows him to apply for probation
because of the lowered penalty, it is still up to the trial judge to decide whether or
not to grant him the privilege of probation, taking into account the full
circumstances of his case.
Secondly, it is true that under the probation law the accused who appeals from the
judgment of conviction is disqualified from availing himself of the benefits of
probation. But, as it happens, two judgments of conviction have been meted out to
Arnel: one, a conviction for frustrated homicide by the regional trial court, now set
aside; and, two, a conviction for attempted homicide by the Supreme Court.
If the Court chooses to go by the dissenting opinions hard position, it will apply the
probation law on Arnel based on the trial courts annulled judgment against him. He
will not be entitled to probation because of the severe penalty that such judgment
imposed on him. More, the Supreme Courts judgment of conviction for a lesser
offense and a lighter penalty will also have to bend over to the trial courts
judgmenteven if this has been found in error. And, worse, Arnel will now also be

made to pay for the trial courts erroneous judgment with the forfeiture of his right
to apply for probation. Ang kabayo ang nagkasala, ang hagupit ay sa kalabaw (the
horse errs, the carabao gets the whip). Where is justice there?
The dissenting opinion also expresses apprehension that allowing Arnel to apply for
probation would dilute the ruling of this Court in Francisco v. Court of
Appeals[16] that the probation law requires that an accused must not have
appealed his conviction before he can avail himself of probation. But there is a huge
difference between Francisco and this case.
In Francisco, the Metropolitan Trial Court (MeTC) of Makati found the accused guilty
of grave oral defamation and sentenced him to a prison term of one year and one
day to one year and eight months of prision correccional, a clearly probationable
penalty. Probation was his to ask! Still, he chose to appeal, seeking an acquittal,
hence clearly waiving his right to apply for probation. When the acquittal did not
come, he wanted probation. The Court would not of course let him. It served him
right that he wanted to save his cake and eat it too. He certainly could not have
both appeal and probation.
The Probation Law, said the Court in Francisco, requires that an accused must not
have appealed his conviction before he can avail himself of probation. This
requirement outlaws the element of speculation on the part of the accusedto wager
on the result of his appealthat 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
courts affirmance of his conviction.
Here, however, Arnel did not appeal from a judgment that would have allowed him
to apply for probation. He did not have a choice between appeal and probation. He
was not in a position to say, By taking this appeal, I choose not to apply for
probation. The stiff penalty that the trial court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel to now seek probation under this
Courts greatly diminished penalty will not dilute the sound ruling in Francisco. It
remains that those who will appeal from judgments of conviction, when they have
the option to try for probation, forfeit their right to apply for that privilege.
Besides, in appealing his case, Arnel raised the issue of correctness of the penalty
imposed on him. He claimed that the evidence at best warranted his conviction only
for attempted, not frustrated, homicide, which crime called for a probationable
penalty. In a way, therefore, Arnel sought from the beginning to bring down the
penalty to the level where the law would allow him to apply for probation.
In a real sense, the Courts finding that Arnel was guilty, not of frustrated homicide,
but only of attempted homicide, is an original conviction that for the first time
imposes on him a probationable penalty. Had the RTC done him right from the start,
it would have found him guilty of the correct offense and imposed on him the right
penalty of two years and four months maximum. This would have afforded Arnel the
right to apply for probation.

The Probation Law never intended to deny an accused his right to probation through
no fault of his. The underlying philosophy of probation is one of liberality towards
the accused. Such philosophy is not served by a harsh and stringent interpretation
of the statutory provisions.[18] As Justice Vicente V. Mendoza said in his dissent
in Francisco, the Probation Law must not be regarded as a mere privilege to be
given to the accused only where it clearly appears he comes within its letter; to do
so would be 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 but to achieve its
beneficent purpose.[19]
One of those who dissent from this decision points out that allowing Arnel to apply
for probation after he appealed from the trial courts judgment of conviction would
not be consistent with the provision of Section 2 that the probation law should be
interpreted to provide an opportunity for the reformation of a penitent offender. An
accused like Arnel who appeals from a judgment convicting him, it is claimed, shows
no penitence.
This may be true if the trial court meted out to Arnel a correct judgment of
conviction. Here, however, it convicted Arnel of the wrong crime, frustrated
homicide, that carried a penalty in excess of 6 years. How can the Court expect him
to feel penitent over a crime, which as the Court now finds, he did not commit? He
only committed attempted homicide with its maximum penalty of 2 years and 4
months.
Ironically, if the Court denies Arnel the right to apply for probation under the
reduced penalty, it would be sending him straight behind bars. It would be robbing
him of the chance to instead undergo reformation as a penitent offender, defeating
the very purpose of the probation law.
At any rate, what is clear is that, had the RTC done what was right and imposed on
Arnel the correct penalty of two years and four months maximum, he would have
had the right to apply for probation. No one could say with certainty that he would
have availed himself of the right had the RTC done right by him. The idea may not
even have crossed his mind precisely since the penalty he got was not
probationable.
An accused may be allowed to apply for probation even if he has filed a notice of
appeal, provided that his appeal is limited to the following grounds:
1) When the appeal is merely intended for the correction of the penalty
imposed by the lower court, which when corrected would entitle the accused to
apply for probation; and
2) When the appeal is merely intended to review the crime for which the accused
was convicted and that the accused should only be liable to the lesser offense
which is necessarily included in the crime for which he was originally convicted
and the proper penalty imposable is within the probationable period.
Before an appeal is filed based on the grounds enumerated above, the accused
should first file a motion for reconsideration of the decision of the trial court
anchored on the above-stated grounds and manifest his intent to apply for
probation if the motion is granted. The motion for reconsideration will give the trial

court an opportunity to review and rectify any errors in its judgment, while the
manifestation of the accused will immediately show that he is agreeable to the
judgment of conviction and does not intend to appeal from it, but he only seeks a
review of the crime and/or penalty imposed, so that in the event that the penalty
will be modified within the probationable limit, he will apply for probation. Without
such motion for reconsideration, the notice of appeal should be denied outright.
The notice of appeal should contain the following averments:
1. that an earlier motion for reconsideration was filed but was denied by the trial
court;
2. that the appeal is only for reviewing the penalty imposed by the lower court or
the conviction should only be for a lesser crime necessarily included in the
crime charged in the information; and
3. that the accused-appellant is not seeking acquittal of the conviction.
On the other hand, probation should not be granted to the accused in the following
instances:
a. When the accused is convicted by the trial court of a crime where the
penalty imposed is within the probationable period or a fine, and the
accused files a notice of appeal (Francisco vs CA) ; and
b. When the accused files a notice of appeal which puts the merits of his
conviction in issue, even if there is an alternative prayer for the
correction of the penalty imposed by the trial court or for a conviction
to a lesser crime, which is necessarily included in the crime in which
he was convicted where the penalty is within the probationable period.