Who Can Apply for Probation in the Philippines?

Probation is defined in Section 3 of Presidential Decree No. 968 (the Probation Law): after conviction and sentence, the defendant is released subject to conditions set by the court and to the supervision of a probation officer, instead of serving the sentence in jail. Under Section 4, as amended, the trial court may suspend the execution of the sentence and place the defendant on probation, on terms and conditions it considers best.

It is not automatic. In Colinares v. People, the Supreme Court called it a privilege that the trial judge decides to grant or not, looking at the full circumstances of the case.

See also the comparison probation vs parole.

Section 4, as amended by Republic Act No. 10707, says the trial court may grant probation:

• after it convicted and sentenced the defendant for a probationable penalty, and
• upon application by the defendant within the period for perfecting an appeal.

Under Rule 122, Section 6 of the Rules of Criminal Procedure, an appeal must be taken within 15 days from promulgation of the judgment. So the window to apply for probation is short.

Probation may be granted for a sentence of imprisonment or for a fine only.

Section 4 sets three rules:

• Filing the application for probation is deemed a waiver of the right to appeal.
• No application is entertained or granted if the defendant has already perfected an appeal.
• An order granting or denying probation cannot be appealed.

In practice, a convicted person has to choose between appealing the conviction and applying for probation.

Section 9, as amended by Republic Act No. 10707, says probation is not available to those:

1. sentenced to serve a maximum term of imprisonment of more than six years;
2. convicted of any crime against the national security;
3. previously convicted by final judgment of an offense punished by imprisonment of more than six months and one day and/or a fine of more than ₱1,000;
4. who have been once on probation under the decree; and
5. who were already serving sentence when the decree became applicable.

The first point looks at the maximum term in the sentence actually imposed. For example, in Colinares v. People the final sentence was an indeterminate penalty of 4 months as minimum to 2 years and 4 months as maximum. The maximum, 2 years and 4 months, is under six years.

Yes, in one situation. Section 4 now says that when a judgment imposing a non-probationable penalty is appealed or reviewed and is modified to a probationable penalty, the defendant may apply for probation based on the modified decision, before it becomes final. The application is filed in the trial court that rendered the original judgment, or where the case has since been re-raffled.

There is a catch: the accused loses the benefit of probation if he or she seeks a review of the modified decision that already imposes a probationable penalty.

The Supreme Court reached the same result in Colinares v. People (2011). Arnel Colinares had been convicted of frustrated homicide with a maximum of six years and one day, which did not allow probation. On appeal, the Court found only attempted homicide, with a maximum of two years and four months. The Court allowed him to apply for probation, noting that "two judgments of conviction" had been meted out to him and that the first had been set aside. The same rule now appears in the law.

After the probation period, and based on the probation officer's report, the court may order the final discharge of the probationer if he or she fulfilled the terms and conditions. Under Section 16, as amended, the final discharge:

• restores all civil rights lost or suspended because of the conviction; and
• totally extinguishes the criminal liability for the offense for which probation was granted.

Section 12 of Republic Act No. 10389 says release on recognizance is generally not allowed after the judgment becomes final or once the accused starts serving the sentence. The exception is an accused entitled to probation who applies before starting to serve the sentence. The court then allows release on recognizance. See release on recognizance.

These are made-up examples. They are not advice for any real case.

Nestor is convicted of estafa and sentenced to a maximum of 6 months. He has no prior conviction. Instead of appealing, he applies for probation within 15 days from the promulgation. His maximum term is not over six years, so he is not disqualified by Section 9.

Cora is sentenced to a maximum term of 8 years. Because the maximum is more than six years, she cannot get probation.

Leo is sentenced to more than six years for frustrated homicide and appeals. The Court of Appeals reduces it to attempted homicide with a maximum of 2 years. Leo may now apply for probation based on the modified decision, but he loses that chance if he appeals the new decision.

People with a past or pending case sometimes get a HIT when applying for an NBI clearance. See what an NBI HIT means. For time deducted from a prison sentence for good behavior, see GCTA: how good conduct time allowance is computed.

Right after the judgment is promulgated, because the 15-day window is short and the choice between appeal and probation cannot be undone. A lawyer can check whether the sentence is probationable, whether you are disqualified, and whether an appeal could lower the penalty. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO).