Probation Law PDF

PROBATION LAW What is Probation? Probation is a privilege granted by the court to a person convicted of a criminal offense to remain in the community instead of actually going to prison/jail. Generally, the courts do not grant an application for probation for violation of t...

PROBATION LAW What is Probation? Probation is a privilege granted by the court to a person convicted of a criminal offense to remain in the community instead of actually going to prison/jail. Generally, the courts do not grant an application for probation for violation of the Dangerous Drugs Law, because of the prevalence of the crime. Even if the crime is probationable may still deny the benefit of probation. PURPOSE more enlightened and humane correctional systems that will promote the reformation of offenders and thereby reduce the incidence of recidivism Confinement of all offenders prisons and other institutions with rehabilitation programs constitutes an onerous drain on the financial resources of the country Need to provide a less costly alternative to the imprisonment of offenders who are likely to respond to individualized, community-based treatment programs PURPOSE promote the correction and rehabilitation of an offender by providing him with individualized treatment provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence prevent the commission of offenses APPLICATION It shall apply to all offenders except those entitled to the benefits under the provisions of Presidential Decree numbered Six Hundred and three and similar laws. P.D. No. 603 Child and Youth Welfare Code R.A. No. 9344 Juvenile Justice and Welfare Act of 2006 Section 264 of B.P. Blg. 881 (Omnibus Election Code)* R.A. No. 6727 (Wage Rationalization Act, as amended)* R.A. No. 9165, The Comprehensive Dangerous Drugs Act of 2002, except Sections 12, 14, 17, and 70* DEFINITIONS 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 – a person placed on probation Probation Officer – one who investigates for the court a referral for probation or supervises a probationer or both. CRITERIA In determining whether an offender may be placed on probation, the court shall consider all information relative, to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that: (a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or (b) there is undue risk that during the period of probation the offender will commit another crime; or (c) probation will depreciate the seriousness of the offense committed. DISQUALIFIED OFFENDERS PD 968: sentenced to serve a maximum term of imprisonment of more than six years convicted of any offense against the security of the State who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than Two Hundred Pesos who have been once on probation under the provisions of this Decree who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof DISQUALIFIED OFFENDERS RA 10707: sentenced to serve a maximum term of imprisonment of more than six (6) years convicted of any crime against the national security (Title III, Book 2 of the Revised Penal Code) who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one (1) day and/or a fine of more than one thousand pesos (P1,000.00) who have been once on probation under the provisions of this Decree who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof THE PROCESS OF PROBATION GRANT OF PROBATION PD 968: 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, 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. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An application for probation shall be filed with the trial court, with notice to the appellate court if an appeal has been taken from the sentence of conviction. The filing of the application shall be deemed a waver of the right to appeal, or the automatic withdrawal of a pending appeal. An order granting or denying probation shall not be appealable. GRANT OF PROBATION RA 10707: Subject to the provisions of this Decree, the trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty 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. No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final GRANT OF PROBATION RA 10707: The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. GRANT OF PROBATION RA 10707: The trial court shall, upon receipt of the application filed, suspend the execution of the sentence imposed in the judgment. This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified decision which already imposes a probationable penalty. Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shall be deemed a waiver of the right to appeal. An order granting or denying probation shall not be appealable INVESTIGATION (SECS. 5-7) Post-sentence Investigation 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 as well as that of the defendant will be served thereby Form of Investigation Report The investigation report to be submitted by the probation officer shall be in the form prescribed by the Probation Administrator and approved by the Secretary of Justice. INVESTIGATION (SECS. 5-7) Period for Submission of Investigation Report The probation officer shall submit to the court the investigation report on a defendant not later than sixty days from receipt of the order of said court to conduct the investigation. The court shall resolve the petition for probation not later than five days after receipt of said report Pending submission of the investigation report and the resolution of the petition The defendant may be allowed on temporary liberty under his bail filed in the criminal case; Provided, That, in case where no bail was filed or that the defendant is incapable of filing one, the court may allow the release of the defendant on recognize the custody of a responsible member of the community who shall guarantee his appearance whenever required by the court CONDITIONS OF PROBATION: a) Mandatory or general - once violated, the probation is cancelled b) Discretionary or special - conditions which the courts may additionally impose on the probationer - Probation statutes are liberal in character and the court may impose any term it chooses, as long as the probationer‘s constitutional rights are not violated. MANDATORY CONDITIONS Every probation order issued by the court shall contain conditions requiring that the probationer shall: present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order; report to the probation officer at least once a month at such time and place as specified by said officer. DISCRETIONARY CONDITION cooperate with a program of supervision; meet his family responsibilities; devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer; undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose; pursue a prescribed secular study or vocational training; DISCRETIONARY CONDITION attend or reside in a facility established for instruction, recreation or residence of persons on probation; refrain from visiting houses of ill-repute; abstain from drinking intoxicating beverages to excess; permit to probation officer or an authorized social worker to visit his home and place or work; reside at premises approved by it and not to change his residence without its prior written approval; or 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 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. MODIFICATION OF CONDITION OF PROBATION During the period of probation, the court may, upon application of either the probationer or the probation officer, revise or modify the conditions or period of probation. The court shall notify either the probationer or the probation officer of the filing such an application so as to give both parties an opportunity to be heard thereon. The court shall inform in writing the probation officer and the probationer of any change in the period or conditions of probation. CONTROL AND SUPERVISION OF PROBATIONER The probationer and his probation program shall be under the control of the court who placed him on probation subject to 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 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. PERIOD OF PROBATIONER (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. 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 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 this provision. 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 TERMINATION OF PROBATION PD 968: 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. TERMINATION OF PROBATION RA 10707: 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 suspended as a result of his conviction and to totally extinguish his criminal liability 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. PROCEDURE File before the trial court an application after he has been sentenced but before he begins to serve the sentence Prosecutor assigned to the court shall be ordered to file his comments within 10 days from notice The court shall order the probation officer to conduct an investigation of the offender if he is not disqualified The probation officer shall submit his investigation report within 60 days from receipt of the court order The court shall resolve the application within 15 days from receipt of the report The probationer order shall take effect upon its issuance. CONFIDENTIALITY OF RECORDS 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. VIOLATION OF CONFIDENTIAL NATURE OF PROBATION RECORDS The penalty of imprisonment ranging from six months and one day to six years (PC) and a fine ranging from hundred to six thousand pesos shall be imposed upon any person who violates Section 17 hereof. SOME QUESTIONS QUESTION May probation be granted if the penalty imposed is fine? Yes, but with subsidiary imprisonment QUESTION When must a person invoke probation? It must be invoked at the earliest instance after conviction because the moment he perfects an appeal from the judgment of conviction, he cannot avail of probation anymore. XPN: If the offender would appeal the conviction of the trial court and the appellate court reduced the penalty to say, less than six years, that convict can still file an application for probation, because the earliest opportunity for him to avail of probation came only after judgment by the appellate court. QUESTION Can probation be imposed if the offender was convicted of several offenses which were tried jointly and one decision was rendered where multiple sentences imposed several prison terms as penalty? The basis for determining whether the penalty disqualifies the offender from probation or not is the term of the individual imprisonment and not the totality of all the prison terms imposed in the decision. So even if the prison term would sum up to more than six years, if none of the individual penalties exceeds six years, the offender is not disqualified by such penalty from applying for probation QUESTION May an accused in a joint trial apply for probation even if the other co-accused appealed their conviction? Yes. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. QUESTION May an offender be released while the application for probation is pending? At the discretion of the court, the probationer may be released: On the same bond filed during the trial; On a new bond; or To the custody of a responsible member of the community (if probationer is unable to file the bond). QUESTION May a recidivist be given the benefit of Probation Law? GR: No  Petition for Probation Is there a need to apply for probation to avail of its benefits? - Yes, it will not be granted except upon the application by the accused. The necessity for such application is indicated in Sec. 4, PD 968, which states that “the trial court may, after it shall have convicted and sentenced a defendant and upon application by said defendant within the period of perfecting an appeal…. When can a petitioner file his application for probation? - the law says that the application should be made within the period for perfecting an appeal or within 15 days from the promulgation of notice of judgment. Is there a form prescribed for the application for probation? - Yes, it shall be in the form approved be the Secretary of justice as recommended by the Administrator or as may be prescribed by the SC. Where can we file the application for probation? -The application for probation be filed directly to the trial court that heard and sentenced the person applying for probation. What then be the duty of the court after receipt of the application? - the trial court may notify the concerned prosecuting officer of the application at a reasonable time before the scheduled hearing thereof. Procedures in Applying for Probation: 1. The offender or his counsel files a petition with the convicting court 2. The court determines convict qualifications and notifies the prosecutor of the filing of the petition 3. The prosecutor submits his comments on such application within 10 days from receipt of the notification 4. If petitioner is qualified, his application is referred to the probation officer for post-sentence investigation 5. The post-sentence investigation report (PSIR) is submitted by the probation officer to the court within 60 days 6. The court grants or denies the petition for probation within 15 days upon receipt of the PSIR.  Effects of filing an application for Probation a) the court may, upon receipt of the application suspend the execution of sentence imposed in judgment; b) pending the submission of the PSIR and the resolution on the application, the applicant may be allowed on temporary liberty under his bail, on a new bail, or released on recognizance.  Disqualifications for Probation a. Those who were sentenced to more than 6 years b. Those who were convicted of crimes against the security of the state (Art. 134 to 157 except 135, 140 and 152 of the RPC) c. Those previously convicted and punished of not less than 1 month and 1 day imprisonment and/or fine of not less than 200 pesos (include those punished with destierro) d. Those who were previously granted probation under P.D. 968 e. Those who were already serving their sentence when probation became applicable  The Court will not grant Probation if it finds: a. The offender can be treated better in a mental institution or other places for correction b. The offender is a risk to the community c. The offense is grievous to the eyes of the community When Probation is granted, what conditions are imposed by the court? a. The probationer must present himself to his probation officer within 72 hours b. Report to his probation officer at least once a month c. Not to commit another crime d. Comply with any other lawful conditions imposed by the court. If the probationer committed a crime while under probation, what would be the consequences? a. The probationer will be arrested for violation of the condition of probation b. Prosecution of the new crime committed c. The court will order the serving of the original sentence of the previous offense How long is the period of probation? a. Not more than 2 years if the sentence is imprisonment for 1 year or less b. Not more than 6 years if t he sentence is imprisonment for more than 1 year but not more than 6 years. Note: Probation starts upon issuance of the court granting probation. When should probation be denied? a. The offender is in need of correctional treatment that can be provided more effectively by his commitment to an institution b. There is undue risk that during the period of probation the offender will commit another crime c. Probation will depreciate the seriousness of the offense. The offender may be released pending application for probation: a. On the same bond he filed during trial b. On a new bond c. To the custody of a responsible member of the community if unable to file bond  When can the Court Modify the Conditions for Probation? a. at any time during supervision b. after summary hearing when the probationer violated any of its conditions c. upon application by the probation officer or the probationer himself Note: only the judge who heard and decided the case has the power to grant, deny, modify, revoke and terminate probation. OUTSIDE TRAVEL 1. Probation officer authorized the probationer to travel outside the area of the operation for a period of 10 days but not exceeding 30 days. 2. If 30 days, Probation must file 5 days before travel a request to travel outside for the approval of Probation authorities. 3. If more than 30 days Probation Authorities shall recommend for Court Approval. CHANGE OF RESIDENCE 1. The probationer must file a request for change of residence at the city or provincial Parole and Probation officer to the court approval. 2. If approved, The RTC which has jurisdiction over the place shall have full control of the probationer. Who is a volunteer probation aide? - he/she is a civilian of good repute and integrity, at least 18 years of age, appointed by the Probation Administration to assists the Pos in investigation and supervision. A VPA is not entitled to salary but is given a reasonable travel allowance. Termination of Probation: after the probationer has satisfactorily completed the probation period, the Probation Officer shall submit termination report to the court containing the ff: a. condition of probation b. program of supervision and response to treatment c. recommendation Two ways of terminating probation: 1. After period of probation with satisfactory compliance with conditions of probation. 2. Other ways of terminating probation a. termination before the expiration of the period (served at least 1/3 of the imposed period but not less than 6 months) b. termination by pardon of the probationer (either absolute or conditional) c. Deportation of the probationer – when an alien on probation is deported, probation will necessary be terminated. d. Death of probationer. Rights Restored after Termination of Probation a. All civil rights suspended when the offended was convicted and sentenced are restored after the termination of probation b. liability to pay a fine is also discharged IN CASE OF SUBSIDIARY IMPRISONMENT  Difference of Probation from Imprisonment and Parole: 1. Probation is an alternative to imprisonment. Instead of being confined in prison, the probationer is released to the community by the court with conditions to follow and is placed under the supervision of PO. 2. Parole is a conditional release of a prisoner whereby he is placed under the supervision of a Parole Officer after serving his minimum sentence. 3. Probation is a community-based approach to reformation of offenders, while imprisonment adopts the institutionalized approach. 4. Probation is handled by the Probation Administration while parole is administered by the Parole Board 5. Probation is enjoyed only once while parole may be granted more than once, depending on good behavior during imprisonment. 6. Probation is more beneficent because it restores full civil rights to the probationer upon termination unlike parole. 7. Probation is essentially a judicial function (under the control of the court) while parole is an executive function (under the Parole Board).