December 13, 2011
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CONCURRING AND DISSENTING OPINION
I join the majority in ruling that petitioner should have been convicted only of the lesser crime of attempted homicide and that the maximum of the indeterminate prison term imposed on him should be lowered to four months of arrestomayor, as minimum, to two years and four months of prisioncorreccional, as maximum. However, I disagree with their conclusion (by 8-7 vote)that on grounds of fairness, the Court should now allow petitioner the right to apply for probation upon remand of the case to the trial court.
I submit the following principles which should be controlling on the present issue:
1. Probation being a mere privilege, this Court may not grant as relief the recognition that accused-appellant may avail of it as a matter of right.
2. The probation law is not a penal statute and therefore the principle of liberal interpretation is inapplicable.
With the enactment of P. D. No. 968 (Probation Law of 1976),this Court held that the rule that if the accused appeals his conviction solely to reduce the penalty, such penalty already probationable, and the appellate court grants his appeal he may still apply for probation, had already been abandoned. We explained that the intention of the new law is to make appeal and probation mutually exclusive remedies. Thus, where the penalty imposed by the trial court is notprobationable, and the appellate court modifies the penalty by reducing it to within the probationable limit, the same prohibition should still apply and he is not entitled to avail of probation.
In Francisco v. Court of Appeals,the Court categorically declared that [P]robation is not a right of an accused, but rather an act of grace of clemency or immunity conferred by the court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted. Subsequently, the Court noted that the suggestion in Francisco that an appeal by the accused should not bar him from applying for probation where such appeal was solely for the purpose of correcting a wrong penalty to reduce it to within the probationable range may not be invoked by the accused in situations when he at the same time puts in issue the merits of his conviction. The ponenciafound the factual milieu in Francisco not on fours with this case. However, the accused here did not even raise the issue of his entitlement to probation either as an alternative prayer to acquittal or as principal relief.
The majority reasoned that since the trial court imposed a (wrong) penalty beyond the probationable range,thus depriving the accused of the option to apply for probation when he appealed, the element of speculation that the law sought to curb was not present. Noting that the accused in this case claimed that the evidence at best warranted his conviction only for attempted, not frustrated homicide, the majority opined that said accused had, in effect, sought to bring down the penalty as to allow him to apply for probation.
I cannot concur with such proposition because it seeks to carve out an exception not found in and contrary to the purpose of the probation law.
The pronouncement in Francisco that the discretion of the trial court in granting probation is to be exercised primarily for the benefit of organized society, and only incidentally for the benefit of the accused, underscored the paramount objective in granting probation, which is the reformation of the probationer. This notwithstanding, the majority suggests that remorse on the part of the accused is not required, or least irrelevant in this case because the Court cannot expect petitioner to feel penitent over a crime, which the Court now finds, he did not commit, as he only committed attempted homicide.
It must be stressed that in foreclosing the right to appeal his conviction once the accused files an application for probation, the State proceeds from the reasonable assumption that the accuseds submission to rehabilitation and reform is indicative of remorse. And in prohibiting the trial court from entertaining an application for probation if the accused has perfected his appeal, the State ensures that the accused takes seriously the privilege or clemency extended to him, that at the very least he disavows criminal tendencies. Consequently, this Courts grant of relief to herein accused whose sentence was reduced by this Court to within the probationable limit, with a declaration that accused may now apply for probation, would diminish the seriousness of that privilege because in questioning his conviction accused never admitted his guilt. It is of no moment that the trial courts conviction of petitioner for frustrated homicide is now corrected by this Court to only attempted homicide. Petitioners physical assault on the victim with intent to kill is unlawful or criminalregardless of whether the stage of commission was frustrated or attempted only. Allowing the petitioner the right to apply for probation under the reduced penalty glosses over the fact that accuseds availment of appeal with such expectationamounts to the same thing: speculation and opportunism on the part of the accused in violation of the rule that appeal and probation are mutually exclusive remedies.
The ponenciathen declares that the question in this case is ultimately one of fairness, considering the trial courts erroneous conviction that deprived petitioner of the right to apply for probation, from which he had no way of obtaining relief except by appealing the judgment.
Such liberality accorded to the accused, for the reason that it was not his fault that the trial court failed to impose the correct sentence, is misplaced.
It is settled that the Probation Law is not a penal statute. In the matter of interpretation of laws on probation, the Court has pronounced that the policy of liberality of probation statutes cannot prevail against the categorical provisions of the law. In applying Sec. 4 of P.D. No. 968 to this and similar cases, the Court must carefully tread so as not to digress onto impermissible judicial legislation whereby in the guise of interpretation, the law is modified or given a construction which is repugnant to its terms. As oft-repeated, the remedy lies in the legislature and not judicial fiat.
I therefore maintain my dissent to the pronouncement in the ponenciarecognizing the right of petitioner ArnelColinaresto apply for probation.
MARTIN S. VILLARAMA, JR.
 Bernardo v. Balagot, G.R. No. 86561, November 10, 1992, 215 SCRA 526, 531.
 G.R. No. 108747, April 6, 1995, 243 SCRA 384.
 See Lagrosa v.People, G.R. No. 152044, July 3, 2003, 405 SCRA 357, 362.
 Llamado v. Court of Appeals, 174 SCRA 566 (1989).
 Pablo v. Castillo, G.R. No. 125108, August 3, 2000, 337 SCRA 176, 170.