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Chapter 7: Rules on Grant /

Revocation of Probation
At the end of this chapter the student should be able to:

• Define Probation
• Enumerate the Rules on Granting of Probation/ the Revocation
of Probation
• Understand the Mandatory, Discretionary, and Special
Conditions of probation

Rules on Grant of Probation

1. After having convicted and sentenced a defendant, the trial court may
suspend the execution of the sentence and place the defendant on probation
upon application by the defendant within the period for perfecting an appeal
(15 days from date of promulgation of the decision convicting the accused).
2. Probation may be granted whether the sentence imposes a term of
imprisonment or fine only.
3. No application for probation shall be entertained or granted if the defendant
has perfected an appeal from the judgment of conviction.
4. In case an appeal is made but has not yet been perfected, an application for
probation may still be filed and such is deemed a withdrawal of the appeal.
5. The filing of the application for probation operates as a waiver of the right
to appeal.
6. The application for probation shall be filed with the trial court and the order
granting or denying probation shall not be appealable. (Sec. 4, PD No. 968,
as amended)

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Penalty which Makes a Convict Qualified for Probation

The penalty must not exceed six (6) years (equivalent to prision
correctional) imprisonment. In case of multiple convictions, the basis for
determining whether or not the penalty qualifies the convict for probation is the
term of individual imprisonment and not the sum total of all prison terms imposed
in the decision.

Fixing the cut-off point at a maximum term of six (6) years imprisonment
for probation is based on the assumption that those sentenced to higher penalties
pose too great a risk to society, not just because of their demonstrated capability
for serious wrongdoing but because of the gravity and serious consequences of
the offense they might further commit.

Criteria for Placing an Offender on Probation; the Court shall Consider All
information Relative to: (Sec. 8, P.D. 968, as amended)

1. Character

2. Antecedent

3. Environment

4. Mental condition of the offender

5. Physical condition of the offender

6. Available institutional and community resources

Circumstances when Probation shall be denied (Sec. 8, P.D. 968, as amended)

Probation shall be denied if the court finds that:

1. The offender is in need of correctional treatment that can be provided most

effectively by his commitment to an institution, or
2. There is undue risk that during the period of probation the offender will
commit crime, or
3. Probation will depreciate the seriousness of the offense committed.

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Offenders disqualified from being placed on Probation

The benefits of PD. No. 968, as amended, shall not be extended to those:

1. Those who have perfected an appeal from the judgment;

2. These sentenced to serve a maximum term of imprisonment of more than
six years (Sec. 91a) P.D. 968, as amended);
3. Those convicted of subversion or any crime against the national security or
public order (Sec 9[b], P.D. 968, as amended)

Where to File, When to File and Effect of an Application for Probation

An application for probation shall be filed with the trial court within the
period for perfecting an appeal. In Palo vs. Militante 184 SCRA 395, the Supreme
Court said that an application for probation was never intended to suspend the
period for the perfection of an appeal, and the filing of the application for probation
operate as a waiver of the right to appeal. The effects of an application for
probation are:

1. The court may suspend the execution of the sentence; and

2. An order granting or denying probation is not appealable. It is an

interlocutory order (does not dispose of the case but leaves something else
to be done by the court to whom it was issued) because it is not a final
judgment.

Notification and Comment of Trial Prosecutor of the filing of an Application for

Probation

The court shall notify the Trial Prosecutor of the filing of an application for
the grant of probation filed by a defendant after conviction and sentencing but
before service of sentence. A Trial Prosecutor shall submit his comments to the
application for probation within ten (10) days from receipt of the notification of
the filing of said application. (Sections 4 and 5, Part XI DOJ Manual for
Prosecutors)

Release of an Applicant for Probation Pending Resolution of the Application for

Probation

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Pending resolution of the application for probation, the defendant shall be
released on temporary liberty under his bail filed in the criminal case. In case no
bail was filed or if the defendant is not capable of filing one, the court may release
the defendant on recognizance to the custody of a responsible member of the
community who shall guarantee his appearance whenever required by the court.
(Sec. 6, Part XI DOJ Manual for Prosecutors; Sec. 7, 2 paragraph, P.D. No. 968,
as amended)

The grant of bail or recognizance by the trial court to the petitioner for
probation while waiting for the resolution of his application for probation is an
exception to the rule that, no bail is granted after final judgment. As provided, "an
accused shall not be allowed bail after the judgment has become final, unless he
has applied for probation before commencing to serve sentence, the penalty and
the offense being within the purview of the Probation Law. In case the accused
has applied for probation, he may be allowed temporary liberty under his bail bond,
but if no bail was filed or the accused is incapable of filing one, the court may
allow his release on recognizance under the custody of a responsible member of
the community. In no case shall bail be allowed after the accused has commenced
to serve sentence." (Sec. 11, Part V-Bail, DOJ Manual for Prosecutors)

Objection of the Trial Prosecutor to the Grant of Probation

The Trial Prosecutor shall. Object to the application for the grant of
probation in the following instances:

1. If the defendant fails to comply with any of the criteria for the grant of
probation as set forth in Section 8 of Presidential Decree No. 968, as
amended;

2. If there is no post-sentence investigation conducted by a probation officer,

3. If the application is filed after an appeal from the convicted is perfected; or

4. If the applicant is one –

Sentenced to more than six (6) years and (1) day;

a. Convicted of an offense against the security of the state; a.

b. Who has been previously convicted by final judgment of an

offense punished by imprisonment of not less than one (1)

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month and one (1) day and/or a fine of not more than Two
Hundred pesos (Php. 200.00); and

c. Who has once been on probation under P.D. No. 968, as

amended. (Sec. 7, Part Xi, DOJ Manual for Prosecutors)

Conduct of Post Sentence Investigation

By express mandate of the Probation Law of 1976, as amended, no person

shall be placed on probation except upon prior investigation by the probation
officer and a determination by the court that the ends of justice and the best
interest of the public will be served thereby. (Sec. 5, P.D. No. 968, as amended)

Toward this end, the probation officer is heretofore directed to submit to

the court the investigation report on a defendant not later than sixty (60) days
from receipt of the order of said court to conduct the investigation (Sec. 7, P.D.
No. 968, as amended). From this provision of law, it is thus clear that a prior
investigation by the probation officer is a condition sine qua non to the grant or
denial of probation, the court being obviously bound by considerations of public
interest as well as the welfare of the offender. The significance of a post sentence
investigation lies in the fact that the same shall serve as the informational basis
for the court's decision to grant or deny probation to qualified offenders.

The Conditions of Probation

The grant of probation is merely a privilege and its grant rests upon the
discretion of the court Conditions should be interpreted with flexibility in their
application and each case should be judged on its own merits on the basis of the
problems, needs and capacity of probation (Baclayan vs. Mutia 129 SCRA 148).
The defendant after conviction and sentence is released subject to the mandatory
and discretionary conditions imposed by the court and to the supervision of a
probation officer.

Court's Latitude in Imposing Conditions

As a rule, the conditions listed under Section 10 of the Probation Law are
not exclusive. Courts are allowed practically any term it chooses, the only
limitation being that it does not jeopardize the constitutional rights of the accused.
Courts may impose conditions with the end that these conditions would help the

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probationer develop into a law-abiding individual. (Baclayon vs. Mutio 129 SCRA
148)

The trial court is given the discretion to impose conditions in the order granting
the probation was it may deem best." It is necessary that the conditions which
provides for a program of payment of his civil liability will address the offender's
needs and capacities. Such need may be ascertained from the findings and
recommendations in the post sentence investigation report submitted by the
probation officer after investigation of the financial capacity of the offender and
that such condition is to the end that the interest of the State and the reformation
of the offender or probationer is best served. (Salgado vs. Court of Appeals, G.R.
No. 89606, August 30, 1990, 189 SCRA 304)

The Mandatory Conditions of Probation

1. The probationer should present himself to the probation officer designated

to undertake his supervision at such place as may be specified in the order
within seventy-two (72) hours from receipt of said order (Sec. 10(a), P.D.
968, as amended);
2. Report to the probation officer at least once a month at such time and place
as specified by said officer (Sec. 10[b], P.D. 968, as amended).

The Discretionary or Special Conditions of Probation (Sec. 10, 2nd par. [a-k), P.D.
968, as amended)

The court may also require the petitioner to:

1. Cooperate with a program of supervision;

2. Meet his family responsibilities,
3. Devote himself to a specific employment and not to change said employment
without the prior written approval of the probation officer;
4. Undergo medical, psychological or psychiatric examination and treatment
and enter and remain in specified institution, when required for that
purpose;
5. Pursue a prescribed secular study or vocational training,
6. Attend or reside in a facility established for instruction, recreation or
residence of persons on probation;
7. Refrain from visiting houses of ill-repute;
8. Abstain from drinking intoxicating beverages to excess;
9. Permit to probation officer or an authorized social worker to visit his home
and place or work;

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10.Reside at premises approved by it and not to change his residence without
its prior written approval; or
11.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.

Effectivity of a Probation Order

A probation order shall take effect upon its issuance, at which time the court
shall inform the offender of the consequences thereof and explain that upon his
failure to comply with any of the conditions prescribed in the said order or his
commission of another offense, he shall serve the penalty imposed for the offense
under which he was placed on probation. (Sec. 11, P.D. No. 968, as amended)

Duration or Period of Probation (Sec. 14, P.D. 968, as amended)

1. The period of probation of a defendant sentenced to a term of imprisonment

of not more than one (1) year shall not exceed two (2) years;
2. If more than one (1) year to six (6) years, said period shall not exceed six
(6) years.
3. 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 (39) of the Revised Penal Code (RPC), as amended.

Control and Supervision of Probationer

The probationer and his probation program shall be under the control of the
court that placed him on probation subject to the actual supervision and visitation
by a probation officer.

Whenever a probationer is permitted to reside in a place under the jurisdiction of

another court, control over him shall be transferred to the Executive Judge of the
Court of First Instance (Regional Trial Court) of that place, and in such a case, a
copy of the probation order, the investigation report and other pertinent records
shall be furnished said Executive Judge. Thereafter, the Executive Judge to whom
jurisdiction over the probationer is transferred shall have the power with respect
to him that was previously possessed by the court which granted the probation.
(Sec. 13, P.D. No. 968, as amended)

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The Revocation of Probation Procedure

The probation is revocable before the final discharge of the probationer by

the court. At any time during probation, the court may issue a warrant for the
arrest of a probationer for violation of any of the conditions of probation. The
probationer, once arrested and detained, shall immediately be brought before the
court for a hearing, which may be informal and summary, of 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. (Sec. 15, 1“par., P.D.
968, as amended) If the violation is established, the court may revoke or continue
his probation and modify the conditions thereof.

In the hearing, which shall be summary in nature, the probationer shall have
the right to be informed of the violation charged and to adduce evidence in his
favor. The court shall! not be bound by the technical rules of evidence but may
inform itself of all the facts which are material and relevant to ascertain the
veracity of the charged. The State shall be represented by a prosecuting officer
in any contested hearing. If the violation is established, the court may revoke or
continue his probation and modify the conditions thereof. If revoked, the court
shall order the probationer to serve the sentence originally imposed. An order
revoking the grant of probation or modifying the terms and conditions thereof shall
not be appealable. (Sec. 15, 2nd par., P.D. 968, as amended)

Rules where there is Violation of Probation

Violation of probation shall be understood to mean any act or omission on

the part of a probationer, which is contrary to the terms and conditions specified
in the probation order.

The Probation Officer may motu proprio (on its own motion or initiative) or
upon the report of a probation aide or any other person, conducts a fact-finding
investigation of any alleged violation of probation. If the investigation establishes
the violation of probation, the Probation Officer shall report the same to the court.
(Sections 34-35, Rules on Probation Methods and Procedures)

The Arrest of the Probationer and Hearing on the Violation of Probation

The court after considering the nature and seriousness of the alleged
violation on the basis of the report mentioned in Section 37 above, may issue a

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warrant for the arrest of the probation. (Sec. 38, Rules on Probation Methods and
Procedures)

Once arrested and detained, the probationer shall immediately be brought

before the court for hearing of the violation charged. The hearing may be informal
and summary probationer for violation of the petitioner 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
this provision (Sec. 39). The probationer shall have the right to be assisted by
counsel at the hearing for the violation of probation (Sec. 41). The Probation Office
may be assisted in the hearing by the Prosecuting Officer in the presentation of
the proof or evidence of the alleged violation of probation. (Sec. 42, Rules on
Probation Methods and Procedures)

How Probation is Terminated and Effects of its Termination

Upon consideration of probation officer's report, the court may order final
discharge of the probationer thereupon the case is deemed terminated. It was held
in Bala vs. Martinez, et al., 181 SCRA 459 that, the probation is not coterminous
with its period, hence mere lapse of the probation period does not terminate the
probation. There must be an order issued by the court terminating the probation.
The termination of probation restores to the probationer all civil rights and fully
discharge his liability for any fine imposed as to the offense for which probation
was granted. 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. (Sec. 16, P.D. No. 968, as amended)

Causes for Probation Cases to be Terminated or Closed

The probation case may be closed by termination due to:

1. Expiration of the period of probation;
2. By revocation for cause under the Probation Law;
3. By the death of the probationer:

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4. By the successful completion of a program of probation. (Sec. 49, Rules on
Probation Methods and Procedures)

Final Report for Closing or Terminating the Probation Case

The Rules on Probation provides that, at least thirty (30) days before the
expiration of the period of probation, the Probation Office shall submit a final
report (Probation Form No. 9) to the court, which shall indicate the following,
among others:

1. The program of supervision and treatment followed in dealing with the

probationer;

2. The response of the probationer to supervision and treatment;

3. The result of said supervision;

4. A recommendation as to whether or not the probationer may be discharged

from probation or in the alternative, whether probation should be continued,
where applicable; and if discharged, to advise the probationer to continue
therapy, where necessary, even after the termination of probation; and

5. Such other information as may be required by the court. (Sec. 50, Rules on
Probation Methods and Procedures)

Confidentiality of Records of a Probationer

The investigation report and the supervision history of a probationer

obtained under this Decree shall be privileged and shall not be disclosed directly
or indirectly to anyone other than the Probation Administration or the court
concerned, except that the court, in its discretion, may permit the probationer of
his attorney to Inspect the aforementioned documents or parts thereof whenever
the best interest of the probationer make such disclosure desirable or helpful:
Provided, further. That, any government office or agency engaged in the
correction or rehabilitation of offenders may, if necessary, obtain copies of said
documents for its official use from the proper court or the Administration. (Sec.
17, P.D. No. 968, as amended (emphasis supplied])

In view of the recent enactment, which unequivocally expresses the

intention to maintain the confidentiality of information in cases involving violence
against women and their children, henceforth, the Court shall withhold the real

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name of the victim-survivor and shall use fictitious initials instead to represent
her. Likewise, the personal circumstances of the survivors or any other
information tending to establish or compromise their identities, as well as those
of their immediate family or household members, shall not be disclosed. (People
vs. Cabalquinto, G.R. No, 167693, September 18, 2006, citing Sec. 40 of R.A. Na.
9262)

Application of Probation to Children in Conflict with the Law

Under R.A. No. 9344 known as the "Juvenile Justice Welfare Act of 2006,"
a Child in Conflict with the Law (CICL) shall be entitled to probation under the
Probation Law of 1976 in lieu of service of his sentence. Section 42 of the law
provides:

"SEC. 42. Probation as an Alternative to Imprisonment. - The court may. after it

shall have convicted and sentenced a child in conflict with the law, and upon
application at any time, place the child on probation in lieu of service of his/ her
sentence taking into account the best interest of the child. For this purpose,
Section 4 of Presidential Decree No. 968, otherwise known as the "Probation Law
of 1976", is hereby amended accordingly"(Emphasis supplied)

References:
Handbook on
NON-INSTITUTIONAL CORRECTIONS
LINNET DOLINEN - GAHAR

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