Probation Review New

8/12/2019 Probation Review New

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INSTITUTIONALAND

NON-INSTITUTIONALIZED CORRECTION


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House Bill No. 393

filed by Teudolo C. Natividad and

Ramon Bagatsing. This is the second

Bill/measurethat attempts to establishedan adult probation in the Philippines. It

was passed in the lower house but

pending in the senate when martial lawwas proclaimed.


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The present probation law:

Presidential Decree 968

Probation Law of 1976

- This was signed into law by thenPresident Ferdinand Marcos on July 24,

1976 during the last day of the first

national conference on Crime Control heldat Camp Aguinaldo.


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January 3, 1978effectivity of the

application of the substantive provisions

concerning grant of probation.

Teudolo C. NatividadformerNAPOLCOM commissioner and former

Congressman of Bulacan.

- Known as the father ofProbation in the Philippines.


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Application for Probation

- The application for probation shall befiled by sentenced or convicted offender

whose sentence is not more than 6 yearsimprisonment. It shall be filed with thecourt that tried and sentenced the offender.

- Section 32, RA 6425 (Dangerous DrugAct of 1972) Probation is granted to drugaddicts.


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- PD 603, amended by PD 1179 (Child &

Youth Welfare Code) probation to minoroffenders.- PD 968 was approved only on July 24,1976 and became operational on January

3, 1978. Sentenced offenders 18 yearsand above can apply probation beforeserving sentence.- The first probation in 1937 was declared

unconstitutional because it covers onlyprovinces that can financially afford toadopt the law.


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Petition for Probation

Is there a need to apply for probation toavail of its benefits?

-Yes, it will not be granted exceptupon the application by the accused. Thenecessity for such application is indicatedin Sec. 4, PD 968, which states that the

trial court may, after it shall have convictedand sentenced a defendant and uponapplication by said defendant within theperiod of perfecting an appeal.


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When can a petitioner file his

application for probation?

- the law says that the application

should be made within the period forperfecting an appeal or within 15 days

from the promulgation of notice of

judgment.


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Is there a form prescribed for the

application for probation?

- Yes, it shall be in the form approved

be the Secretary of justice asrecommended by the Administrator or as

may be prescribed by the SC.


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Where can we file the application forprobation?

-The application for probation be

filed directly to the trial court that heard

and sentenced the person applying for

probation.


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What then be the duty of the court

after receipt of the application?

- the trial court may notify the

concerned prosecuting officer of theapplication at a reasonable time before

the scheduled hearing thereof.


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Procedures in Applying for Probation:

1. The offender or his counsel files a

petition with the convicting court

2. The court determines convictqualifications and notifies the

prosecutor of the filing of the petition

3. The prosecutor submits his commentson such application within 10 days

from receipt of the notification


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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 probationofficer to the court within 60 days

6. The court grants or denies the petition

for probation within 15 days uponreceipt of the PSIR.


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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.


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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 lessthan 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 underP.D. 968

e. Those who were already serving their sentence when

probation became applicable


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When Probation is granted, what

conditions are imposed by the court?

a. The probationer must present himselfto his probation officer within 72 hours

b. Report to his probation officer at leastonce a month

c. Not to commit another crime

d. Comply with any other lawfulconditions imposed by the court.


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If the probationer committed a crime

while under probation, what would bethe 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 theoriginal sentence of the previous

offense


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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 ofthe court granting probation.


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When should probation be denied?

a. The offender is in need of correctionaltreatment that can be provided moreeffectively by his commitment to an

institutionb. There is undue risk that during the period ofprobation the offender will commit anothercrime

c. Probation will depreciate the seriousness ofthe offense.


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The offender may be released pendingapplication for probation:

a. On the same bond he filed during trial

b. On a new bondc. To the custody of a responsible

member of the community if unable to

file bond


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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 conditionsc. 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.


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OUTSIDE TRAVEL

1. Probation officer authorized theprobationer 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 ProbationAuthorities shall recommend for Court

Approval.


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CHANGE OF RESIDENCE

1. The probationer must file a requestfor 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.


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Who is a volunteer probation aide?

- he/she is a civilian of good reputeand integrity, at least 18 years of age,

appointed by the Probation

Administration to assists the Pos ininvestigation and supervision. A VPA is

not entitled to salary but is given a

reasonable travel allowance.


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Termination of Probation:after the probationer has

satisfactorily completed the probation

period, the Probation Officer shall

submit termination report to the courtcontaining the ff:

a. condition of probation

b. program of supervision andresponse to treatment

c. recommendation


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Two ways of terminating probation:

1. After period of probation with satisfactorycompliance 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)


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c. Deportation of the probationerwhenan alien on probation is deported,probation will necessary beterminated.

d. Death of probationer.


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Rights Restored after Termination of

Probationa.All civil rights suspended when the

offended was convicted and sentenced

are restored after the termination ofprobation

b. liability to pay a fine is also discharged

IN CASE OF SUBSIDIARYIMPRISONMENT


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How Can Probation help in the

Prevention of Crime?- when in the community, he is helped

and given opportunities to be productive

and responsible instead of going toprison

- hopefully, these situations restrain the

probationer from committing crime


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How can Community help in the

Success of Probation?1. community accepting the probationers,

giving them a feeling of belongingness2. community agencies and schools are

being opened for the training andtreatment of probationers

3. community leaders and laymanallowing the participation of

probationers in developmentalprograms


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4. religious organizations giving the

probationers spiritual advice andextending their social action programsto probationers

5. various organizations providing

temporary housing for probationers6. the community playing an equallyimportant role after the termination ofprobation, it should be ready for the

reintegration of the individual intocommunity life.


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4. Probation is handled by the ProbationAdministration while parole is

administered by the Parole Board5. Probation is enjoyed only once while parole

may be granted more than once,depending on good behavior duringimprisonment.

6. Probation is more beneficent because itrestores full civil rights to the probationerupon termination unlike parole.

7. Probation is essentially a judicial function

(under the control of the court) whileparole is an executive function (under theParole Board).


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Notes to remember:


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P.D. 1257participation of the prosecutor in

the determination of the application forprobation

P.D. 76the period of punishment which is

probationable is extended from 6 years and 1

day.P.D. 1990the period of punishment which is

probationable is lowered again from 6 years

and 1 day to 6 years or less

E.0.292 (Administrative Code of 1987)

renamed the Probation Administration into

Parole and probation Administration


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NATURE OF INFORMATION GATHERED:

- Strictly confidential and privilege

NATURE OF POST SENTENCE INVESTIGATION

- It is recommendatory in nature and address to

the sound discretion of the trial court

EFFECTIVITY OF PROBATION

- Upon its issuance

FINALITY

The order of the court granting or denyingprobation SHALL NOT BE APPEALABLE.


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Probationera person placed on probation

Absconding probationera person whose

probation was granted but failed to report for

supervision or fails to continue reporting for

supervision or whose whereabouts areunknown for a reasonable period of time.

Probation officerone who investigates for

the court a referral for probation or one who

supervises a probationer or both.


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Petitioneran accused or defendant whofiles a formal petition for probation

Absconding petitionera convicted

defendant whose application for probationhas been given due course by the court but

fails to report to the probation office or

cannot be located within a reasonable period

of time.


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Parolerefer to the conditional release of an

offender from a penal institution after he hasserved the minimum period of his prisonsentence.

Parolee - refer to a person who is released onparole

Pardoneerefer to a person who is released onconditional pardon

Clientrefer to a pardonee/parolee who isplace on supervision


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Boardrefers to the Board of Pardons

and parole

Administrationrefer to the Parole

and Probation Administration

Directorrefer to the Director of theBuCor

Administratorrefer to the

administrator of Parole andProbation Administration


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History of Parole system in the

Philippines:- it came into existence by the passage of

Act 4103 as amended by Acts 4203 and 4225,

otherwise known as the Indeterminate Sentence

Law, which took effect on Dec. 5, 1933.

Board of Pardons and Parole

administers the Parole system of thecountry.


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Pre-Parole Investigation:

The Administration has beenauthorized by the Board to conduct pre-parole

investigation of deserving city, provincial and

national prisoner confined in the city and

provincial jails, the national penitentiary andpenal colonies, whenever their best interests

and that of justice will be served thereby, and to

submit reports of said investigation at least 60

days before the expiration of the minimumsentences of the prisoners concerned.


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b. he has served the minimum period

of said sentence less the GoodConduct Time Allowances (GCTA)

earned.

c. There is a reasonable probabilitythat if released, he will be law-

abiding; and that

d. His release will not beincompatible with the interests and

welfare of society.


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PRISONERS DISQUALIFIED FOR PAROLE:

1. those persons convicted of offenses

punished with reclusion perpetua;

2. those convicted of treason, conspiracy

or proposal to commit treason;3. those convicted of misprision of

treason, rebellion, sedition or

espionage;


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4. those convicted of piracy;

5. thosewho are habitual delinquents;6. those who escaped from confinement

or those who evaded sentence;

7. those who were granted conditionalpardon and violated any of the terms

thereof;


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8. those whose maximum term of

imprisonment does not exceed 1 year orare with a definite sentence;

9. those suffering from any mental disorderas certified by a psychiatric report of the

bureau of correction or national center formental health;10. those whose conviction is on appeal;11. those who have pending criminal case for

an offense committed while servingsentence.


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COMPOSITION OF THE BOARDS OF PARDONAND PAROLE

Chairman - Secretary of the DOJEx-Officio- Probation Administrator of the

Parole and Probation AdministrationMembers:

a. Sociologistb. Clergyman/Educatorc. Psychiatrist

d. Person qualified for the work bytraining/experience and a

member of the Philippine BAR.


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Pardon

an act of executive clemency, by ahead of a state for the purpose of

exempting an individual from the

punishment imposes upon him by a courtof law.

- It is an act of grace and the

recipient is not entitled to it as a matter ofright.


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Kinds of Pardon

1. Absolute Pardon

It is an absolute pardon when it is

granted by the Chief Executive withoutany conditions attached. Absolute

pardon serves to wipe away the guilt of

a pardonee, and makes him innocent

as if he has not committed any crime.


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2) Conditional Pardon

It is conditional when it is

granted by the Chief Executive subject

to the conditions imposed on the

recipient and accepted by him. Usually,the person granted with conditional

pardon has served a portion (at least

of the minimum of his indeterminatesentence) of his sentence in prison


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Limitations of the Pardoning Power of the

PresidentThe following are the limitations of the pardoning power ofthe President:

1) it may not be exercised for offenses inimpeachment cases;

2) it may be exercised only after conviction by finaljudgment;

3) it may not be exercised over civil contempt (asfor refusing to answer a proper question as awitness in a case);

4) in case of violation of election law or rules andregulations, no pardon, parole, orsuspension of sentence maybe granted;

5) cannot be exercised to violation of tax laws.


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OTHER FORMS OF EXECUTIVE CLEMENCY

1) AmnestyIs a general pardon extended to agroup of persons generally exercised by the ChiefExecutive with the concurrence of congress.

It is an act of sovereign powergranting oblivion or general pardon for pastoffense and rarely, if ever, exercised in favor ofsingle individual is usually exerted in behalf ofcertain classes of person who are subjected to

trial but not have been convicted.Note: Amnesty can be availed of before,during and after the trial of the case, even afterconviction.


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Differences between Amnesty and Pardon

As to the number of those who can avail:

Pardon includes any crime and is

exercised individually by the Chief Executive,

while amnesty is a blanket pardon granted to agroup of prisoners, generally political prisoners.As to the Time to Avail:

Pardon is exercised when the person isalready convicted, while amnesty maybe given

before trial or investigation is done.


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As to the Consent of Congress:

Pardon is granted by the ChiefExecutive and such as private act, which

must plead and proved by the person

pardoned because the court takes nochoice thereof. While amnesty is by

proclamation with concurrence of

congress, and it is a public act, which the

court should take judicial notice.


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As to the Effect:

Pardon is an act of forgiveness, i.e. itrelieves the offender from the consequences ofthe offense, while amnesty is an act offorgetfulness. i.e. it puts into oblivion the offenseof which one is charged so that the person as if

he had never committed the offense.

As to the Crime committed:Pardon is granted for infractions of

the peace of the State while amnesty, for crimesagainst sovereignty of the state (ex. politicaloffense)


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2) Commutation of Sentence

It is a change of the decision of thecourt made by the Chief Executive by

reducing the degree of the penalty

inflicted upon the convict, or bydecreasing the length of the

imprisonment of the original sentence.


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Specific cases where commutation is provided for bythe code:

1. When the convict sentenced to death is over 70 yearsof age;

2. When ten justices of the Supreme Court failed toreach a decision for the affirmation of the death penalty;

In other cases, the degree of the penalty isreduced from death to reclusion perpetua.

In Commutation of Sentence consentof theoffender is not necessary. The public welfare, not hisconsent, determines what shall be done.


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3. Reprievethe temporary stay of the

execution of sentence (applicable onlyto death sentence)

GCTAis a privilege granted to a prisoner that

shall entitle him to a deduction of his term

of imprisonment. Under Art.97, RPC, the

GCTA are:1. 5 days per month during the first 2 years of

imprisonment


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2. 8 days per month during the 3rdto

5thyears of imprisonment3. 10 days during the following years

until the 10thyears of imprisonment

4. 15 days during the 11thandsuccessive years


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Special Time Allowance for Loyalty (Art.

158, RPC)-A deduction of 1/5 of the period of the

sentence of any prisoner who evaded the

service of sentence on the occasion of

disorders due to conflagrations, earthquakes,or other calamities shall be granted if he

returns to authorities within 48 hours after the

president declared that the calamity is over.

- Once granted hall not be revoked.


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