DIAGNÓSTICO DE ASMA EN NIÑOS

Article 86. Generally, penalties are served in the national penitentiary. An exception to this is arresto menor under Art. 88. This penalty may be served in the municipal jail or in the house of the defendant himself under the surveillance of an officer of law. If you’re convicted in Manila, and the penalty is arresto menor, you serve at the city jail of Manila. There is no need to go to the National Penitentiary.

Article 87 is Destierro. Here, the accused shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. Probation Law

Probation should be taken together with Art. 94 on partial extinction of criminal liability.

The most important part of Probation Law is Sec. 4. It states that the period for applying for probation shall be within the period provided for filing an appeal. That means 15 days from receipt of the notice of judgment.

If you file a notice of appeal, you are forever barred from applying for probation. On the other hand, if you file an application for probation, you are deemed to have abandoned your right to appeal. The options are mutually exclusive.

The reason there is you should not take advantage of the processes of the court. When you file a notice of appeal, then you do not disagree with the judgment of the court. When you apply for probation, you agree with the judgment of the court. Therefore, you cannot file a notice of appeal and then apply for probation because the courses of action are inconsistent.

Once an appeal is made, even if the judgment of the trial court is modified, you cannot anymore apply for probation. For example, the penalty given by the trial court is more than six years. In this instance, the you cannot apply for probation because the probation law does not apply when the penalty imposed is more than six years. Then you appeal. On appeal, the appellate

court lowered the penalty to less than six years. Is the accused entitled to probation? According to the Supreme Court, the accused is not entitled for probation. Once you file a notice of appeal, you are forever barred from applying for probation. Your possible cause of action is to request Congress to amend Sec. 4 of the Probation Law. The lowering of the penalty by the appellate court even if due to miscomputation by the trial court of the penalty will be immaterial. The remedy is to file an administrative case against the erring judge. See Pablo Francisco v. Court of Appeals.

Pablo Francisco v. Court of Appeals provides in part:

Therefore, that an appeal should not bar the accused from applying for probation if the appeal is taken solely to reduce the penalty is simply contrary to the clear and express mandate of Sec, 4 of the Probation Law, as amended, which opens with a negativeclause, "no application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction."

When an accused applies for probation in the lower court and then it is denied, what is the remedy of the accused whose application for probation has been denied? Can he apply a notice of appeal? No. An order granting or denying probation shall not be appealable. His remedy is to file a special civil action for certiorari under Rule 65. The reason is that the grant or denial of probation is simply based on the discretion of the court. So if it is based on discretion then the remedy of appeal is not available. Grant of probation is a mere privilege; it is not a matter of right.

You can only apply for probation once and only for one judgment of conviction. When you have already applied for probation before, you cannot apply for probation the second time around. If you are convicted by two different courts, then you cannot apply for probation with any of the two courts. But there are instances when a judgment of conviction may cover two or more crimes like in violation of BP 22. So for every check involved, there will be one violation of BP 22. Now, supposing A is the drawer and B is the payee. A issued several checks for B. All the checks bounced. There will be as many violations of BP 22 as the number of checks involved. If there are 10 checks involved, then the offender will be liable for 10 violations of BP 22. Supposing all the cases were lodged in one court: Makati MTC Branch 1. If the accused is convicted, he will be convicted for 10 counts of violation of BP 22. However, the judgment will only be made in one judgment. If you total the number of years as penalty for the 10 counts of violations of BP 22 (assuming each one had 1 year penalty), there will be a total of 10 years imprisonment. The Probation Law is applicable only to penalties not exceeding six years. Is the accused entitled to probation? Yes. Because the maximum six year period is determined not by the totality prison terms but rather whether the each prison term exceeds six years. As long as all the violations of BP 22 are lodged in a single decision, and each prison term does not exceed six years, the Probation Law will apply. See Pablo Francisco v. Court of Appeals.

Pablo Francisco v. Court of Appeals provides in part:

Multiple prison terms imposed against an accused found guilty of several offenses in one decision are not, and should not be, added up. And, the sum of the multiple prison terms imposed against an applicant should not be determinative of his eligibility for, nay his disqualification from, probation. The multiple prison terms are distinct from each other, and if none of the terms exceeds the limit set out in the Probation Law,i.e., not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For, Sec. 9, par. (a), P.D. 968, as amended, uses the word maximum not total when it says that "[t]he benefits of this Decree shall not be extended to those . . . . sentenced to serve a maximum term of imprisonment of more than six years." Evidently, the law does not intend to sum up the penalties imposed but to take each penalty separately and distinctly with the others. Consequently, even if petitioner was supposed to have served his prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correccional sixteen (16) times as he was sentenced to serve the prison term for "each crime committed on each date of each case, as alleged in the information(s)," and in each of the four (4) informations, he was charged with having defamed the four (4) private complainants on four (4) different, separate days, he was still eligible for probation, as each prison term imposed on petitioner was probationable.

Now, the problem is if you have 9 cases for violations of BP 22 (for 9 years) lodged in Makati MTC Branch 1 and the other case (for another 1 year) was lodged in Makati MTC Branch 2. There will now be two judgments of conviction. A judgment for 9 counts of BP 22 in Branch 1 and another judgment for 1 count of BP 22 in Branch 2. Can he apply for probation?

No. This is because this time, there are two judgments of conviction. You can only apply for probation if there is one judgment of conviction. The remedy is to consolidate all the cases in one court. Even if there are only two counts of BP 22 which meted a penalty of two years each but they were lodged in two different judgments, you cannot apply for probation. You can only apply for probation for a single judgment of conviction.

Is an MR considered an appeal? No.

There is another important section regarding probation. This is Sec. 70 of RA 9165 (the Dangerous Drugs Law). In the dangerous drugs law, by express provision of Sec. 24 of RA 9165:

Section 24. Non-Applicability of the Probation Law for Drug Traffickers and Pushers. Any person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the Probation Law or Presidential Decree No. 968, as amended.

The probation law is not allowed in drug trafficking and drug pushing. Of course, it is also not allowed for other violations under 9165 which entails a penalty of more than 6 years. Illegal possession of drug paraphernalia or illegal use of drugs can be the subject matter of probation. This is because it is not drug trafficking or drug pushing and the penalty does not exceed 6 years. There is a beautiful provision in RA 9165. That is Sec. 70. Let us take for example a minor, 17 years of age acting with discernment. 17 years of age is a privileged mitigating circumstance. Supposing he was caught possessing 51 grams of shabu. If he was caught in the act of selling (this is drug pushing) then the probation is not allowed. Under Sec. 98 of RA 9165, the RPC is not applicable to RA 9165 except in cases of minor offenders:

Section 98. Limited Applicability of the Revised Penal Code. Notwithstanding any law, rule or regulation to the contrary, the provisions of the Revised Penal Code (Act No. 3814), as amended, shall not apply to the provisions of this Act, except in the case of minor offenders. Where the offender is a minor, the penalty for acts punishable by life imprisonment to death provided herein shall be reclusion perpetua to death.

However, the law further provides that if the offense committed by the minor carries a penalty of life imprisonment to death, then the penalty shall be reclusion perpetua to death.

What is the effect of conversion of the penalty from life imprisonment to death to a penalty of reclusion perpetua to death? The penalty now becomes a penalty under the RPC. According to People v. Martin Simon, if the nomenclature of the penalties provided for in the special law is similar to those provided under the RPC, then the RPC shall apply. Therefore, the effect of conversion of the penalty from life imprisonment to death to a penalty of reclusion perpetua to death is that the RPC shall now apply as a general rule. If the penalty is reclusion perpetua to death, can we now lower the penalty by one degree considering the presence of a privileged mitigating circumstance? Yes, because the penalty of RP to death is now within the nomenclature of the RPC. The rules on graduation of penalties under the RPC will now apply. If we did not convert the penalty, we cannot lower the penalty by degree. This is because there is no penalty next lower in degree to life imprisonment to death. Only those penalties from the RPC can be graduated.

What is the penalty next lower in degree to reclusion perpetua to death? Reclusion temporal. This is a divisible penalty.

Can you now apply the Indeterminate Sentence Law?

Yes. No more mitigating, no more aggravating. What is the maximum of the penalty? Reclusion temporal medium. This is an application of the RPC, Art. 64. Where will you get the minimum of the penalty? From anywhere within the periods of Prision Mayor.

Can the accused now apply for probation? Here, the maximum of the penalty is more than 6 years. Can he still apply? Yes. The answer lies under Sec. 70. That section provides:

Section 70. Probation or Community Service for a First-Time Minor Offender in Lieu of Imprisonment. Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the sentence provided under this Act is higher than that provided under existing law on probation, or impose community service in lieu of imprisonment. In case of probation, the supervision and rehabilitative surveillance shall be undertaken by the Board through the DOH in coordination with the Board of Pardons and Parole and the Probation Administration. Upon compliance with the conditions of the probation, the Board shall submit a written report to the court recommending termination of probation and a final discharge of the probationer, whereupon the court shall issue such an order.

If the offender is a first-time minor offender, even if the maximum of the penalty imposed by the court is higher than that required under the Probation Law, he can still apply for probation. This is the exception.

Why is it that he is entitled to probation?

Because the example is illegal possession. But if the example is selling of drugs, you still convert the penalty from life imprisonment to death to reclusion perpetua to death; and you will still apply the above computation. However, he cannot anymore apply for probation. This is due to the explicit language of Sec. 24 of RA 9165. The law prohibits probation in drug trafficking or drug pushing. So even if he is a minor, if he is convicted under drug trafficking or drug pushing, he will not be allowed to apply for probation.

The other thing in probation is that probation is not a penal law. Even if it is favorable to the accused, it cannot be given retroactive effect. See Pablo Bernardo v. Cecilio Balagot. The probation law is not a penal law and therefore cannot be given retroactive effect even if favorable to the accused.

When you apply for probation, the court will not immediately grant your application. What will happen is that upon your application, the court will require an investigation. The probation officer will conduct an investigation on your background and will submit his report to the court. The resolution of the court will be based on the report submitted by the probation officer. If the court grants the probation, it will issue a probation order fixing the period of probation to a period not more than 2 years.

Probation cannot be more than two years. When the probation is granted, there will be some conditions imposed by the court. Those conditions must be complied with by the accused. If the conditions are not strictly fulfilled, then the court may revoke the probation. If the probation is revoked, the court will issue a warrant for the arrest of the accused. Once arrested, the accused will now serve his sentence.

The problem is there were two cases: People v. Fajardo and People v. Soriano. The issue in those cases was whether or not the condition for the payment of civil liability may be validly made in the order of probation. One of the conditions for the grant of probation was the payment of civil liability. Is that valid? No. It will violate the equal protection clause. Only the rich people will be able to apply for probation because they are the ones who are able to pay the civil liability. But, if the accused himself volunteered that he will pay the civil liability, and that promise to pay the civil liability is included as one of the conditions for the grant of probation, such condition will be valid. If the accused fails to pay, the probation may be revoked.

Another thing about probation is whether or not it is a ground for partial extinction of criminal liability under Article 94. Yes, it is. This is because upon the grant of probation, the accused will no longer go to jail. He will be released but subject to certain conditions.

Article 89. Total extinction of criminal liability. What is the effect of death?

The most important part of this article is par. 1, the effect of death. The law says that if death of the offender occurs before final judgment, then the personal penalties and pecuniary penalties shall be extinguished. Personal penalties refer to imprisonment; pecuniary penalties refer to fines. If the accused dies at any stage of the trial, the personal and pecuniary penalties will be extinguished. What about the civil liabilities? Are they also extinguished?

You first have to determine when did the accused die. If the accused die before judgment, everything will be dismissed – the pecuniary penalties, the pecuniary penalties and the civil liabilities. This is because there is no final judgment. The guilt or innocence of the accused has not yet been determined. His liability has not been decided yet. The problem is when the accused dies pending appeal. Insofar as pecuniary and personal penalties are concerned, both are extinguished. What about the civil liability? The civil liability ex delicto is also extinguished. See People v. Bayotas. This is without prejudice to the filing of a case for civil liability arising from sources other than the commission of the crime.

People v. Bayotas says in part:

Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: a) Law; b) Contracts; c) Quasi-contracts d) . . .; and e) Quasi-delicts.

What is the difference between pecuniary penalty and pecuniary liability?

Pecuniary penalty refers to fine. Pecuniary liability refers to civil liability (actual, exemplary, moral damages).

If you cannot pay the fine, you serve subsidiary imprisonment. If you cannot pay the civil liability, you cannot serve subsidiary imprisonment because that will be unconstitutional. No person shall be imprisoned for non-payment of debt.

What is amnesty?

Amnesty is granted by the President with the concurrence of Congress. It is usually applicable to political crimes. What is the effect of absolute pardon?

No more criminal liability, no more accessory penalty. But there is still civil liability. The President cannot pardon the civil liability aspect because that is personal between the private offended party and the accused.

Art. 344 provides: “In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes.”

What about prescription of a crime? When do you start counting the prescriptive period?