MINDANAO FREE LEGAL AID CLINIC

PROBATION LAW

PROBATION LAW of 1976 (PD 968, as amended by PD 1990 and PD 1257)

“Probation” is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer.

“Probationer” means a person placed on probation.

“Probation Officer” means one who investigates for the court a referral for probation or supervises a probationer or both.

Section 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 within the period for perfecting an appeal, 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. Provided, That no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.

An order granting or denying probation shall not be appealable. (As amended by PD 1990.) . An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waver of the right to appeal, or the automatic withdrawal of a pending appeal.

Probation is a privilege, not a right. It can be granted only if the accused deserves it. If granted, the accused will be convicted but released. He will then comply with mandatory and discretionary conditions imposed by the court and be placed under the supervision of a probation officer. The discretionary conditions depend on the court's assessment of the accused but they must be constructive, consistent with his conscience, not as burdensome as the original penalty of the crime and must not unreasonably restrict his liberty. Note: must not unreasonably restrict his liberty. A penalty is always a restriction of liberty but restrictions must be reasonable and proportionate to the offense.

Objective of Probation Law:

The Probation Law has objectives similar to the Indeterminate Sentence Law:

1.) Rehabilitation and correction of the accused through individualized treatment

2.) To give better chances for a repentant criminal to reform

3.) Prevent further commission of crimes as he is placed under the probation officer's supervision

4.) Decongest the jails5.) Save the government from spending money for

maintaining the accused in prison

. The mandatory conditions are:

1.) To report to the probation officer within 72 hours from the time the order was received; and

2.) To regularly report to the probation officer at least once a month or sooner as may seem fit.

The court may also require the probationer to:

(a) cooperate with a program of supervision(b) meet his family responsibilities;(c) devote himself to a specific employment and not to change said

employment without the prior written approval of the probation officer(d) undergo medical, psychological or psychiatric examination and

treatment and enter and remain in a specified institution, when required for that purpose;

(e) pursue a prescribed secular study or vocational training;(f) attend or reside in a facility established for instruction, recreation or

residence of persons on probation;(g) refrain from visiting houses of ill-repute;(h) abstain from drinking intoxicating beverages to excess; permit to probation officer or an authorized social worker to visit his

home and place or work;(j) reside at premises approved by it and not to change his residence

without its prior written approval; or(k) satisfy any other condition related to the rehabilitation of the defendant

and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

Probation may be granted whether the penalty is imprisonment or a fine only. For imprisonment, the penalty should be 6 years or less. Probation will be denied in any of the following circumstances:1.) The accused needs correctional treatment that can best be provided if he is committed to an institution2.) There is an undue risk that he will commit another crime during the probation period.3.) Probation will depreciate the seriousness of the offense committed..

Disqualified for Probation Law

1.) The prison term exceeds 6 years (even if by just 1 day)

2.) Those convicted of subversion3.) Those convicted of the following crimes

against national security:a.) Treasonb.) Conspiracy and proposal to commit treasonc.) Misprision of Treasond.) Espionagee.) Inciting to war and giving motives to reprisalf.) Violation of neutralityg.) Correspondence with hostile countryh.) Flight to enemy countryi.) Piracy and mutiny

(piracy is an international crime and can be tried by any country in the world.)

Disqualification

4.) Those convicted of the following crimes against public order:a.) Rebellion, insurrection, coup, seditionb.) Illegal assemblies and associationsc.) Direct/indirect assault, resistance an disobedienced.) Public

disorders (tumults, alarms and scandals)e.) Delivery of prisoners from jail

f.) Evasion of service of sentenceg.) Quasi-recidivism5.) Those who were previously convicted of a crime punishable

by at least 1 month and 1 day and/or a fine of at least Php200.006.)

6.)Those who were once recipients of probation (probation can be granted to a person only once.)

7.) Those who were already serving sentence when the Probation Law took effect (Martial Law years)

8.) Those enjoying the benefits of PD 603 (the Child and Youth Welfare Code) and similar laws

9.) Those who perfected an appeal (probation and appeal are mutually exclusive remedies; you can't use both at the same time.)

Regarding those suffering several prison terms, multiple terms are distinct from each other. However, if the total number of prison terms doesn't exceed 6 years, the accused is entitled to probation. The application for probation must also be file during the period for perfecting an appeal. Take note: conviction becomes final if the accused applies for probation. If granted, the accused's sentence is suspended but still stands. If he violates his probation, he can be arrested and brought to court for an informal summary hearing (but can post bail while the hearing is going on as well.) If the violation is proven, the court may or may not revoke the probation. If probation is revoked the accused will serve full sentence. The revocation order is not appealable.

Section 14. Period of Probation

(a) The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years.

(b) When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of the Revised Penal Code, as amended.

Section 15. Arrest of Probationer;

Subsequent Disposition. At any time during probation, the court may issue a warrant for the arrest of a probationer for violation of any serious violation of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing for the violation charged. The defendant may be admitted to bail pending such hearing. In such a case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under these provisions.

If the probation prisoner complies with his requirements throughout the period of probation the court will give him a final discharge. The probationer 's civil rights will then be fully restored and his penalties and fines will be discharged.

Section 16. Termination of Probation.

After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted.

The probationer and the probation officer shall each be furnished with a copy of such order.

Reclusion Perpetua

is a particular kind of sentence of imprisonment in the Philippines, Argentina, and several other countries.

In the Philippines, it is one of two sentences, the other being life imprisonment, designed to replace the death penalty and is, in legal parlance, almost synonymous with life imprisonment.

Distinction with Life Imprisonment

 Reclusion perpetua is prescribed on crimes punishable by the Revised Penal Code, while life imprisonment is imposed on offenses punishable by Special Laws.

Reclusion perpetua carries accessory penalty, life imprisonment does not.

Reclusion perpetua entails a minimum imprisonment of 30 years after which a convict becomes eligible for pardon, but the maximum period for imprisonment may not exceed 40 years.

It also carries with it accessory penalties, namely: perpetual special

disqualification, etc. It is not the same as life imprisonment which, for one thing, does not carry with it any accessory penalty, and for another, does not appear to have any definite extent or duration. Ex. T hose serving a reclusion perpetua sentence can never become eligible to run for public office, while those serving life imprisonment are allowed to do so.

Life imprisonment, however, does not have any definite extent or

duration of imprisonment. Unlike life imprisonment, reclusion perpetua is an indivisible penalty and has no minimum, medium or maximum periods. It is imposed in its entirety regardless of any attendant aggravating or mitigating circumstances

Rights of the Accused in the Phil Constitution

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. [...]

Sec. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. [...]

Sec. 14. (1) No person shall be held to answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.

Sec. 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it. [...]

Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion perpetua. (2) The employment of physical, psychological, or degrading punishment against any prisoner or detainee or the use of substandard or inadequate penal facilities under subhuman conditions shall be dealt with by law. [...] Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Sec. 22. No ex post facto law or bill of attainder shall be enacted.