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ARNEL COLINARES
vs.
PEOPLE OF THE PHILIPPINES
PROBATION LAW

Complainant Rufino P. Buena (Rufino) testified that at around 7:00 in the evening on June 25,
2000, he and Jesus Paulite (Jesus) went out to buy cigarettes at a nearby store.
On their way, Jesus took a leak by the roadside with Rufino waiting nearby. From nowhere, Arnel
sneaked behind and struck Rufino twice on the head with a huge stone, about 15 inches in
diameter.
Rufino fell unconscious as Jesus fled.
Ananias Jallores (Ananias) testified that he was walking home when he saw Rufino lying by the
roadside.
Paciano Alano (Paciano) testified that he saw the whole incident since he happened to be
smoking outside his house.
He sought the help of a barangay tanod and they brought Rufino to the hospital.
Dr. Albert Belleza issued a Medico-Legal Certificate2 showing that Rufino suffered two lacerated
wounds on the forehead, along the hairline area.
The doctor testified that these injuries were serious and potentially fatal but Rufino chose to go
home after initial treatment.
The defense presented Arnel and Diomedes Paulite (Diomedes). Arnel claimed self-defense.
He testified that he was on his way home that evening when he met Rufino, Jesus, and Ananias
who were all quite drunk.
Arnel asked Rufino where he supposed the Mayor of Tigaon was but, rather than reply, Rufino
pushed him, causing his fall.
Jesus and Ananias then boxed Arnel several times on the back.
Rufino tried to stab Arnel but missed.
The latter picked up a stone and, defending himself, struck Rufino on the head with it.
Arnel then fled and hid in his sisters house.
Diomedes testified that he, Rufino, Jesus, and Ananias attended a pre-wedding party on the night
of the incident. His three companions were all drunk.
On his way home, Diomedes saw the three engaged in heated argument with Arnel.
RTC rendered judgment, finding Arnel guilty beyond reasonable doubt 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 prision mayor, as maximum. Since the maximum
probationable imprisonment under the law was only up to six years, Arnel did not qualify for
probation.
The CA entirely affirmed the RTC decision.
Arnel taking the position that he should be entitled to apply for probation in case the Court metes
out a new penalty on him that makes his offense probationable.
The Solicitor General, on the other hand, argues that under the Probation Law no application for
probation can be entertained once the accused has perfected his appeal from the judgment of
conviction.

ISSUE: Given a finding that Arnel is entitled to conviction for a lower offense and a reduced probationable
penalty, whether or not he may still apply for probation on remand of the case to the trial court.

The Courts Rulings

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."15Since 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
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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."17

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
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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.

The question in this case is ultimately one of fairness. Is it fair to deny Arnel the right to apply for
probation when the new penalty that the Court imposes on him is, unlike the one erroneously imposed by
the trial court, subject to probation?

WHEREFORE, the Court PARTIALLY GRANTS the petition, MODIFIES the Decision dated July 31, 2007
of the Court of Appeals in CA-G.R. CR 29639, FINDS petitioner Arnel Colinares GUILTY beyond
reasonable doubt of attempted homicide, and SENTENCES him to suffer an indeterminate penalty from
four months of arresto mayor, as minimum, to two years and four months of prision correccional, as
maximum, and to pay Rufino P. Buena.