FIRST DIVISION

[G.R. No. 152044. July 3, 2003.]

DOMINGO LAGROSA and OSIAS BAGUIN , petitioners, vs . THE PEOPLE

OF THE PHILIPPINES and THE HONORABLE COURT OF APPEALS ,
respondents.

Nerio G. Zamora for petitioners.

The Solicitor General for respondents.

SYNOPSIS

Record showed that petitioners were found guilty of violation of the Revised
Forestry Code. Petitioners appealed to the CA which a rmed their conviction, but reduced
the penalty imposed. Subsequently, petitioners applied for probation with the trial court,
but was denied. The CA a rmed the trial court's denial of their application for probation
because PD 968 expressly prohibits the grant of probation to those who have appealed
their convictions.
On appeal, petitioners asked not to apply the letter of the law because they
appealed for the purpose of reducing an incorrect penalty.
In denying their petition, the Supreme Court held that petitioners were clearly
precluded from the bene ts of probation because they have appealed from the judgment
of the trial court and have applied for probation only after the CA had a rmed their
conviction. The fact that they put the merits of their conviction in issue on appeal belied
their claim that they simply assailed the propriety of the penalties imposed.

SYLLABUS

1. CRIMINAL LAW; P.D. NO. 968 (PROBATION LAW); GRANT OF PROBATION IS

PROHIBITED TO AN ACCUSED WHO HAS APPEALED HIS CONVICTION; CASE AT BAR. —
The law that is at the heart of this controversy is Presidential Decree No. 968, also known
as the Probation Law. . . Under Section 9 (a) of the Probation Law, offenders who are
sentenced to serve a maximum term of imprisonment of more than six years are
disquali ed from seeking probation. It should also be noted that P.D. 968 expressly
prohibits the grant of probation to those who have appealed their convictions. In this case,
there is no question that petitioners appealed from the decision of the trial court. This fact
alone merits the denial of petitioners' Application for Probation. Having appealed from the
judgment of the trial court and having applied for probation only after the Court of Appeals
had a rmed their conviction, petitioners were clearly precluded from the bene ts of
probation. TEcCHD

2. ID.; ID.; ID.; ACCUSED NOT BARRED FROM APPLYING FOR PROBATION IF
APPEAL WAS SOLELY RAISED TO REDUCE THE PENALTY TO WITHIN THE
PROBATIONABLE LIMIT; CASE AT BAR. — The fact that petitioners put the merits of their
conviction in issue on appeal belies their claim that their appeal was prompted by what
was admittedly an incorrect penalty. Certainly, the protestations of petitioners connote a
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 profession of guiltlessness, if not complete innocence, and do not simply assail the
propriety of the penalties imposed. For sure, petitioners never manifested that they were
appealing only for the purpose of correcting a wrong penalty — to reduce it to within
probationable range. Hence, upon interposing an appeal, more so after asserting their
innocence therein, petitioners should be precluded from seeking probation. By perfecting
their appeal, petitioners ipso facto relinquished the alternative remedy of availing of the
Probation Law, the purpose of which is simply to prevent speculation or opportunism on
the part of an accused who, although already eligible, does not at once apply for probation,
but did so only after failing in his appeal.

DECISION

YNARES-SANTIAGO , J : p

This is a petition for review of the decision of the Court of Appeals in CA-G.R. No.
67308, 1 which a rmed the Resolution of the Regional Trial Court of Tagbilaran City,
Branch 2, denying petitioners' Application for Probation, and its Order denying petitioners'
Motion for Reconsideration. 2
The undisputed facts are as follows.
On October 29, 1996, the Regional Trial Court of Tagbilaran City, Branch 2, rendered
a decision in Criminal Case No. 8243, 3 nding petitioners Domingo Lagrosa and Osias
Baguin guilty of violation of Section 68 of P.D. 705, as amended (The Revised Forestry
Code), for having in their possession forest products without the requisite permits. The
trial court sentenced them to suffer the indeterminate penalty of imprisonment from two
(2) years, four (4) months and one (1) day of prision correccional, as minimum, to eight (8)
years of prision mayor, as maximum. Petitioners' Motion for Reconsideration of the
decision 4 was denied by the trial court on November 21, 1996. 5
Petitioners appealed their conviction to the Court of Appeals, where it was docketed
as CA-G.R. CR No. 20632. 6 On March 14, 2000, the appellate court a rmed the conviction
of the petitioners, with the modi cation as to the penalty imposed, which was reduced to
an indeterminate penalty ranging from six (6) months and one (1) day of prision
correccional, as minimum, to one (1) year, eight (8) months and twenty one (21) days of
prision correccional, as maximum. 7 The decision became nal and executory on April 12,
2000.
On August 29, 2001, petitioners led an Application for Probation with the trial
c o ur t , 8 which, as mentioned at the outset, was denied. Petitioners' motion for
reconsideration was likewise denied by the trial court. Hence, petitioners filed a petition for
certiorari with the Court of Appeals, which was docketed as CA-G.R. SP No. 67308. 9 On
January 11, 2002, the Court of Appeals rendered the assailed decision a rming the
questioned resolutions of the trial court.
Hence this petition, raising the following arguments:
1) That Section 4 of Presidential Decree No. 968, as amended by PD No.
1990, is very absurd and illogical considering that petitioners were
not given the opportunity to apply for probation when they were
convicted by the Regional Trial Court of Bohol, Branch 2, because the
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 penalty imposed by said court is more than six (6) years and therefore
non-probationable.
That the rst opportunity for herein petitioners to apply for probation was
when the Court of Appeals modi ed the sentence imposed by the Regional
Trial Court of Bohol, Branch 2, from two (2) years, four (4) months and one
(1) day of prision correccional, as minimum, to eight (8) years of prision
mayor, as maximum, to six (6) months and one (1) day to one (1) year,
eight (8) months and twenty one (21) days as maximum which is clearly
probationable.
2) That the ruling of this Honorable Supreme Court in the case of Pablo
Francisco versus Court of Appeals, et al., G.R. No. 108747, is not
applicable to the instant case because in the said Francisco case the
accused therein can apply for probation because the penalty imposed
by the lower court was already probationable but the accused instead
appealed the decision but in the case of herein petitioners they cannot
apply for probation when they were convicted because the penalty
imposed by the lower court was more than six (6) years and therefore
non-probationable.
3) That the decision of the Court of Appeals herein sought to be
reviewed is clearly contrary to the purpose of the Probation Law. 1 0
The law that is at the heart of this controversy is Presidential Decree No. 968, also
known as the Probation Law, as amended by P.D. 1990, the pertinent provision of which
reads:
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. (italics ours)
Probation may be granted whether the sentence imposes a term of
imprisonment or a ne only. An application for probation shall be led with the
trial court. The ling of the application shall be deemed a waiver of the right to
appeal.
An order granting or denying probation shall not be appealable.

Under Section 9 (a) of the Probation Law, offenders who are sentenced to serve a
maximum term of imprisonment of more than six years are disquali ed from seeking
probation.
It should be noted that before P.D. 968 was amended by P.D. 1990, the accused
was allowed to apply for probation even after he had already led an appeal, as long as he
had not yet begun to serve his sentence. 1 1
Petitioners contend that they should be allowed to apply for probation even if they
had already appealed the decision of the trial court. They argue that their case should be
considered an exception to the general rule which excludes an accused who has appealed
his conviction from the bene ts of probation. In the case at bar, the trial court sentenced
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 petitioners to a maximum term of eight years, which was beyond the coverage of the
Probation Law. They only became eligible for probation after the Court of Appeals
modi ed the judgment of the trial court and reduced the maximum term of the penalty
imposed on them to one year, eight months and twenty-one days. 12 They submit that the
ruling in the case of Francisco v. CA 13 is not applicable because in that case, the accused
appealed their conviction notwithstanding the fact that the maximum term of the prison
sentence imposed on them by the trial court was less than six years. 14
In its Comment, the O ce of the Solicitor General reiterates the express provision
of P.D. 968 prohibiting the grant of probation to those who have appealed their
convictions. 15 It argues that, even if the petitioners have appealed for the purpose of
reducing an incorrect penalty, this fact does not serve to remove them from the prohibition
in Section 4 of P.D. 968 for the law makes no such distinction. 16
There is no question that petitioners appealed from the decision of the trial court.
This fact alone merits the denial of petitioners' Application for Probation. Having appealed
from the judgment of the trial court and having applied for probation only after the Court of
Appeals had a rmed their conviction, petitioners were clearly precluded from the bene ts
of probation. 17
However, petitioners now ask us not to apply the letter of the law, claiming that their
situation should be considered an exception to the rule. Their petition is without merit.
Petitioners repeatedly assert that their application for probation was made at the
" rst opportunity," undoubtedly invoking the fourth "whereas" clause of P.D. 1990, which
reads:
WHEREAS, probation was not intended as an escape hatch and should not
be used to obstruct and delay the administration of justice, but should be availed
of at the rst opportunity by offenders who are willing to be reformed and
rehabilitated; . . . .

To bolster this assertion, petitioners claim that what prompted them to appeal the
decision of the trial court was the erroneous penalty imposed by the trial court. 18
Petitioners are not being very candid. In their appellant's brief led in CA-G.R. CR No.
20632, they raised the following assignment of errors:
I.

THAT THE LOWER COURT ERRED IN FINDING BOTH ACCUSED GUILTY OF THE OFFENSE
CHARGED BECAUSE THE EVIDENCE AGAINST THEM LACKS MORAL CERTAINTY.
II.

IF EVER ACCUSED ARE GUILTY, THE LOWER COURT ERRED IN IMPOSING THE PROPER
PENALTY AS PROVIDED BY LAW.

The fact that petitioners put the merits of their conviction in issue on appeal belies
their claim that their appeal was prompted by what was admittedly an incorrect penalty.
Certainly, the protestations of petitioners connote a profession of guiltlessness, if not
complete innocence, and do not simply assail the propriety of the penalties imposed. For
sure, petitioners never manifested that they were appealing only for the purpose of
correcting a wrong penalty — to reduce it to within probationable range. Hence, upon
interposing an appeal, more so after asserting their innocence therein, petitioners should
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 be precluded from seeking probation. By perfecting their appeal, petitioners ipso facto
relinquished the alternative remedy of availing of the Probation Law, the purpose of which
is simply to prevent speculation or opportunism on the part of an accused who, although
already eligible, does not at once apply for probation, but did so only after failing in his
appeal. 19
Although it has been suggested that an appeal should not bar the accused from
applying for probation if the appeal is solely to reduce the penalty to within the
probationable limit may be equitable, 2 0 we are not yet prepared to accept this
proposition, specially given the factual circumstances of this case. Had the petitioners'
appeal from the decision of the trial court raised the impropriety of the penalty imposed
upon them as the sole issue, perhaps this Court would have been more sympathetic to
their plight. Unfortunately, their misrepresentation has led to their own undoing.
WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the
Court of Appeals dated January 11, 2002 in CA-G.R. No. 67308, which a rmed the
Resolution of the Regional Trial Court of Tagbilaran City, Branch 2, denying petitioners'
Application for Probation, and its Order denying petitioners' Motion for Reconsideration, is
AFFIRMED. Costs against the petitioners.
SO ORDERED.
Davide, Jr., C.J., Carpio and Azcuna, JJ., concur.
Vitug, J., I reiterate my separate (dissenting) opinion in Francisco vs. CA (243 SCRA
384, 399).

Footnotes

1. CA Rollo, p. 51; penned by Associate Justice Rodrigo V. Cosico, concurred in by

Associate Justices Eubulo G. Verzola and Eliezer R. De Los Santos.

2. Records, pp. 262, 264, 275, 294; penned by Judge Baudilio K. Dosdos.
3. Records, pp. 219-224.

4. Records, pp. 229-233.

5. Records, pp. 241-242.
6. Records, p. 243.

7. CA Rollo for CA-G.R. CR No. 20632, pp. 88-98; penned by Associate Justice Renato C.
Dacudao, concurred in by Associate Justices Quirino D. Abad Santos, Jr. and B.A.
Adefuin-De La Cruz.
8. Records, pp. 262-263.

9. CA Rollo for CA-G.R. SP No. 67308, pp. 4-9.

10. Rollo, pp. 7-8.
11. People v. Evangelista, 324 Phil. 80 (1996); citing P.D. 968, as amended by P.D. 1287.
12. Rollo, pp. 7-9.
13. 313 Phil. 241 (1995).
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 14. Rollo, pp. 8-9.
15. Rollo, pp. 30-32.
16. Rollo, p. 30.
17. People v. Evangelista, 324 Phil. 80 (1996).
18. Rollo, p. 8.
19. Francisco v. CA, 313 Phil. 241, 265 (1995).
20. Francisco v. CA, supra.

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