PABLO BERNARDO, PETITIONER, VS. THE HONORABLE JUDGE, CECILIO F. BALAGOT, REGIONAL TRIAL COURT, BRANCH 35, GAPAN, NUEVA ECIJA, RESPONDENT.

The petitioner contends he is entitled to probation although he
had previously appealed his conviction, because these alternative remedies were
allowed under the law then in force. The People disagree, arguing that his application for probation is
governed by the amendment to the said law and he could elect thereunder only
either of the two remedies and not both.

Pablo Bernardo, the herein petitioner, was convicted of estafa in
the Municipal Trial Court of San Antonio, Nueva Ecija, and sentenced on September
5, 1984 to 1 year, 8 months and 21 days of prision correccional as
minimum to 2 years, 11 months and 10 days of prision correccional
medium as maximum, with the accessory and other penalties.

He appealed to the Regional Trial Court of Nueva Ecija, which
affirmed the decision with modifications. On April 25, 1985, he filed a petition for review with the Court of
Appeals, which on December 24, 1985, sustained the appealed decision with
modifications. On January 17, 1986, the
petitioner filed a motion for new trial and/or reconsideration, but this was
not granted. Bernardo then filed a
petition for review with this Court on November 16, 1986, which we also denied.

While his motion for new trial and/or reconsideration was pending
in the Court of Appeals, Bernardo filed an application for probation. The application was dated February 3,
1986. It was referred to the Probation
Officer of Nueva Ecija, who subsequently recommended its approval. On October 11, 1987, however, Municipal
Judge Francisco R. Andres denied it.^[1] The denial was based on Section 4 of P.D. 968 as amended by P.D. 1990, prohibiting the grant of
probation to an applicant who has appealed his conviction, and also on
Bernardo’s unsatisfactory conduct.

On February 1, 1988, Bernardo elevated the matter to the Regional
Trial Court in a petition for certiorari with prayer for
restraining order. The petition was
denied on August 17, 1988, as so was a motion for reconsideration, on January
9, 1989. The petitioner then came to
this Court for reversal of the respondent judge.

It is stressed at the outset that the petitioner is not among the
disqualified offenders listed in Section 9 of P.D. 968 as follows:

Sec. 9. Disqualified Offenders. – The benefits of this
Decree shall not be extended to those:

(a)  
Sentenced to serve a maximum term of imprisonment of more than
six years;

(b)   Convicted
of subversion or any crime against the national security or the public order;

(c)   Who
have previously been convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less
than Two Hundred Pesos;

(d)  
Who have been once on probation under the provisions of this
Decree; and

(e)   Who
are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section
33 hereof. (As amended by BP Blg. 76,
and PD 1990, Oct. 5, 1985)

Section 4 of the said decree, which was promulgated on July 24,
1976, provided as follows:

Sec. 4. Grant of Probation. – Subject to the provisions of
this Decree, the court may, after it shall have convicted and sentenced a
defendant and upon application at any time of said defendant, suspend the
execution of said sentence and place the defendant on probation for such period
and upon such terms and conditions as it may deem best.

Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An
application for probation shall be filed with the trial court, with notice to
the appellate court if an appeal has been taken from the sentence of
conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or the automatic
withdrawal of a pending appeal.

An order granting or
denying probation shall not be appealable.

On December 1, 1977, that
section was amended by P.D. 1257 thus:

Sec. 4. Grant of Probation. – Subject to the provisions of
this Decree, the court may, after it shall have convicted and sentenced a
defendant but before he begins to serve his sentence and upon his application, suspend the execution of said
sentence and place the defendant on probation for such period and upon such
terms and conditions as it may deem best.

The prosecuting officer concerned shall be notified by the court of
the filing of the application for probation and he may submit his comment on
such application within ten days from receipt of the notification.

Probation may be granted whether the sentence imposes a term of
imprisonment or a fine with subsidiary imprisonment in case of insolvency. An application for probation shall be filed
with the trial court, with notice to the appellate court if an appeal has been
taken from the sentence of
conviction. The filing of the
application shall be deemed a waiver of the right to appeal, or
the automatic withdrawal of a pending appeal. In the latter case, however, if the application is filed on or after the
date of the judgment of the
appellate court, said application shall be acted upon by the trial court on the
basis of the judgment of the appellate court.

An order granting or denying
probation shall not be appealable.

This was the prevailing law on probation at the time the
petitioner was convicted in 1984.

On October 5, 1985,
Section 4 was again amended, this
time by P.D. 1990, and now provides:

Sec. 4. Grant of
Probation. – Subject
to the provisions of this Decree, the trial court may, after it shall have
convicted and sentenced a defendant, and upon application by said defendant
within the period for perfecting an
appeal, suspend the execution of
the sentence and place the defendant on probation
for such period and upon such terms and conditions as it may deem best;
Provided, that no application for probation shall be entertained or granted if
the defendant has perfected the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of
imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be
deemed a waiver of the right to appeal.

An order granting or
denying probation shall not be
appealable.

This was the law in force
at the time the petitioner filed his application for probation.

The petitioner contends that this last amendment
cannot apply to him because at the time of his conviction in 1984, he
was allowed to appeal without forfeiting his right to apply for probation. As he had no fore-knowledge that P.D. 968 would be amended, he should not
now be prejudiced for having
sought, before such amendment, a reversal of his conviction.

In refutation, the
Solicitor General avers that at the time Bernardo applied for probation on
February 3, 1986, P.D. 968 had already
been amended by P.D. 1990. The purpose
of the amendment was, precisely, to prohibit an application for probation if
the accused has perfected an appeal from the judgment of conviction.

Section 3 of the later decree clearly states:

The provisions of Section 4 of Presidential Decree No. 968, as
above amended, shall not apply to those who have already filed their respective
applications for probation at the time of the effectivity of this Decree.

P.D. 1990 was promulgated on October 5, 1985, and published in
the Official Gazette on December 30, 1985. It took effect on January 15, 1986, after fifteen days from the date of
its publication. The petitioner’s
application for probation was filed on February 3, 1986, after P.D. 1990 had
already become effective. Consequently,
the petitioner cannot invoke the original Section 4 of P.D. 968, as he is not
among “those who have already filed their respective applications for
probation at the time of the effectivity of P.D. 1990.”

P.D. No. 1990 was issued when it was observed that even if a
person’s conviction was finally affirmed after he had exhausted the appeal
process (usually up to this Court), he nevertheless could still apply for
probation and thus in effect undo such affirmance. To prevent loss of time, money, and effort on the part of the
State in this wasteful exercise, the law was amended to make appeal and
probation mutually exclusive remedies.

The present case falls squarely within the objectives of P.D.
1990. Bernardo appealed his case all
the way to this Court, which sustained the courts below and denied his petition. He filed his Application for probation after
his conviction was affirmed by
both the Regional Trial Court and the Court of Appeals. It was only while his motion for new trial and/or reconsideration was pending with the latter court that it occurred to him to apply for probation. It was already too
late then because P.D. 1990 was already in effect.

The petitioner also
contends that his conviction is not yet final, having been brought up on
appeal, and that the filing of his application for probation had the effect of withdrawing said appeal. It is a clever theory but unacceptable. Acceptance thereof would render the
amendment in P.D. 1990 completely inutile and defeat the very purpose for which the original rule was
modified and through the act itself that is prohibited by the amendment.

The petitioner also
imputes grave abuse of discretion to the respondent judge for denying his
application on the ground of betrayal of trust, thus:

Considering the provisions
of PD 968 as amended by PD 1990, this Court agrees with the Municipal Trial
Court that x x x the grant or
denial of an application for probation under PD 968 and PD 1990 was within his
discretion. Respondent Judge felt that
since the petitioner was charged with Estafa, where betrayal of trust is
concerned; petitioner misled him by alleging that an application for probation
was filed with Respondent Court when the records did not show it and, the
appeals/petition taken by the
petitioner after his conviction, were enough basis for him to deny the
petitioner’s application for probation.

Bernardo argues that this
is not a legal or justifiable ground for the denial of probation because he is
not among the disqualified offenders listed in the decree. In support of this stand, he cites Santos To
v. Paño,^[2]
where this Court held:

x x x In expressly enumerating offenders not qualified to enjoy the
benefits of probation, the clear intent is to allow said benefits to those not
included in the enumeration. x x x

Probation is a mere privilege and its grant rests upon the
discretion of the court. Even if a
convicted person is not included in the list of offenders disqualified from the
benefits of the decree, the grant of probation is nevertheless not automatic or
ministerial. The court should, before
granting probation, consider the potentiality of the offender to reform,
together with the demands of justice
and public interest, along with other relevant circumstances. In the case at bar, as the municipal judge
noted, the petitioner represented that he had earlier filed his application for
probation when he had not done so in fact.

At any rate, even if it be assumed that the respondent judge did
gravely abuse his discretion, the petition was still correctly dismissed
because of the amended Section 4 of P.D. 1990.

It remains to observe that the favorable recommendation of the
probation officer is at best merely persuasive upon the courts in the
consideration of the application for probation. Both the law and jurisprudence are clear on this point.^[3] As for the fact that the petitioner is a
first offender, this does not necessarily entitle him to the approval of his
application, although it is a factor to be taken into account by the
court. Finally, the policy of
liberality he invokes cannot prevail against the categorical provisions of the
law, which clearly call for the denial of his application.

WHEREFORE, the petition is DENIED, with costs against
the petitioner. It is so ordered.

Padilla, Griño-Aquino, and
Bellosillo, JJ., concur.

^[1]
Rollo, p. 31; Petition,
Annex “F.”

^[2]
120 SCRA 8 (1983).

^[3]
Sec. 5, P.D. 968; Amandy vs.
People, 161 SCRA 436 (1988); Tolentino vs. Alconcel, 121 SCRA 92 (1983).