Eligibility for Probation Even After Appealing From an Erroneous Judgment : The Colinares vs. People (G.R. No. 182748, December 13, 2011) Doctrine

D E C I S I O N

ABAD, J.:

I.      THE FACTS

Accused-appellant Arnel Colinares (Arnel) was charged with frustrated homicide for hitting the head of the private complainant with a piece of stone. He alleged self-defense but the trial court found him guilty of the crime charged and sentenced him to suffer imprisonment from 2 years and 4 months of prision correccional, as minimum, to 6 years and 1 day of prision mayor, as maximum.  Since the maximum probationable imprisonment under the law was only up to 6 years, Arnel did not qualify for probation.

Arnel appealed to the Court of Appeals (CA), invoking self-defense and, alternatively, seeking conviction for the lesser crime of attempted homicide with the consequent reduction of the penalty imposed on him.  His conviction was affirmed by the CA. Hence, this appeal to the Supreme Court.

II.    THE ISSUES

Given a finding that Arnel is entitled to conviction for a lower [lesser] offense [of attempted homicide] and a reduced probationable penalty, may he may still apply for probation on remand of the case to the trial court?

III.   THE RULING

[The Supreme Court voted to PARTIALLY GRANT the appeal, MODIFIED the CA decision and found Arnel GUILTY of ATTEMPTED (not frustrated) HOMICIDE and SENTENCED him to and indeterminate but PROBATIONABLE penalty of 4 months of arresto mayor as minimum and 2 years and 4 months of prision correccional as maximum. The Court also voted 8-7 to allow Arnel to APPLY FOR PROBATION within 15 days from notice that the record of the case has been remanded for execution to trial court.]

YES, Arnel may still apply for probation on remand of the case to the trial court.

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.

[W]hile 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.

If the Court chooses to go by the dissenting opinion’s hard position, it will apply the probation law on Arnel based on the trial court’s 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 Court’s judgment of conviction for a lesser offense and a lighter penalty will also have to bend over to the trial court’s judgment—even if this has been found in error.  And, worse, Arnel will now also be made to pay for the trial court’s 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?

  Here, 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 Court’s 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.

In a real sense, the Court’s 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.