Eligibility for Probation When the Penalty Is Destierro in Philippine Law
1. Destierro as a Principal Penalty
| Element | Key Points |
|---|---|
| Statutory location | Revised Penal Code (RPC), Art. 27 (classification of penalties) in relation to Arts. 87, 89 & 92. |
| Nature | Banishment – the convict is forbidden to enter, reside or come within a 25- to 250-kilometre radius of one or more specified places (normally the complainant’s residence or the crime scene). There is no imprisonment; violation is treated as evasion of sentence (Art. 157, RPC). |
| Duration | Shares the time‐scale of prisión correccional (6 months & 1 day – 6 years) because it is expressly deemed a correctional penalty. |
Why it matters: Under the Probation Law, what the sentence is—and whether the person is already serving it—controls eligibility.
2. The Probation Law Framework
| Provision | Gist | Relevance to Destierro |
|---|---|---|
| P.D. No. 968 (1976) | Grants courts discretion to suspend execution of a sentence of imprisonment not exceeding 6 years and place the offender on probation. | Destierro is lighter than any imprisonment; early cases questioned coverage because the law literally said “imprisonment.” |
| B.P. Blg. 76 (1980) | Amended §9 to stress rehabilitation over retribution. | Confirmed courts’ wide latitude to impose tailored conditions—even geographic restrictions that mirror destierro. |
| R.A. 9344 (2006) & R.A. 10630 (2013) | Juvenile Justice Act; automatic suspension of sentence for children in conflict with law. | Minors sentenced to destierro fall under automatic suspension rather than classic probation. |
| R.A. 10707 (2016) | Major overhaul: • Allows an accused who perfected an appeal to still apply for probation within 15 days from transmittal of the record to the trial court after the appellate judgment becomes final. • Clarifies that an application is a waiver of the right to appeal—and vice-versa. |
Eliminates tactical doubt after Colinares (2011) about filing the application after the CA/Supreme Court modifies a judgment to destierro. |
3. Supreme Court Doctrine
| Case | Date | Holding |
|---|---|---|
| Baclayon v. CA, G.R. No. 182296 | 16 Dec 2008 | Destierro qualifies for probation because it is lighter than the 6-year cap. Application was denied solely for being late. |
| Colinares v. People, G.R. No. 182748 | 13 Dec 2011 | Reiterated Baclayon and squarely ruled that probation is available even if the penalty is destierro, since the law “could not have intended to exclude a lesser affliction.” |
| Bernardo v. People, G.R. No. 164473 | 13 Jan 2016 | Applied Colinares; clarified that the filing period is 15 days from notice of judgment imposing destierro. |
| Angeles v. People, G.R. No. 229099 | 10 Aug 2022 | (Post-RA 10707) Stressed that an appellate court that modifies an imprison ment penalty to destierro must expressly advise the accused of the fresh 15-day window to apply for probation. |
Doctrine distilled
- Coverage: Destierro is within the Probation Law because it is non-imprisonment and lighter than the six-year ceiling.
- Timing: The application must be filed before the judgment becomes final—ordinarily 15 days from receipt, or under RA 10707, within 15 days after the record is remanded.
- Effect: Grant of probation suspends the destierro; the banishment never runs while the probationer remains compliant.
4. Practical Guide for Counsel and Trial Courts
Confirm finality clock
- Trial level: 15 days from promulgation/notice of the judgment of conviction.
- Appellate modification: 15 days from trial-court receipt of the remand order (§4, RA 10707).
File a verified application under §4, P.D. 968—attach a sworn statement that the defendant:
- has not previously been convicted by final judgment of a qualifying offense;
- has not served time for the current offense;
- expressly waives the right to appeal (if judgment not yet appealed).
Court action
Automatic suspension of the execution of destierro upon filing.
Direct the Probation Officer to submit a Post-Sentence Investigation Report (PSIR) within 60 days.
After hearing, either:
- Grant probation—specify period (usually 1–3 years) and conditions; or
- Deny—destierro period begins the day the denial becomes final.
Typical conditions for a destierro-probationer
- Report to the Probation Officer monthly.
- Stay away from the complainant’s residence within the same radius ordered in the original judgment (mirrors Art. 87 RPC).
- Seek permission before travel outside the supervising region.
- Render community service (optional under RA 11362).
Violation & Revocation (§15, P.D. 968)
- Any serious breach (e.g., entering the prohibited zone) triggers a revocation hearing.
- If revoked, service of the original destierro resumes—time spent on probation is not credited.
5. Common Misconceptions Debunked
| Myth | Reality |
|---|---|
| 1. “Probation only applies to jail/prison terms.” | SC jurisprudence treats destierro as eligible because it is less than six years of imprisonment. |
| 2. “Destierro automatically begins on promulgation, so probation is moot.” | Filing a timely application interrupts execution; the banishment clock only runs once probation is denied or revoked. |
| 3. “Appealing forfeits the chance for probation.” | Since RA 10707 (2016), an appellant may still seek probation within 15 days after the appellate judgment becomes final and lowers the penalty within the probationable range (e.g., from prisión correccional to destierro). |
6. Policy Considerations
- Humanitarian flexibility – Destierro is often imposed in homicide under Art. 249 when mitigating circumstances lower the penalty; allowing probation avoids forcing a non-violent, first-time offender to uproot family ties or livelihood.
- Judicial economy – Probation supervision is less resource-intensive than monitoring compliance with geographic banishment.
- Restorative justice – Conditions can incorporate mediation or restitution, which a bare destierro order cannot achieve.
7. Checklist for Judges
- Does the conviction carry destierro, or any imprisonment ≤ 6 years?
- Is the defendant disqualified under §9 (e.g., previously convicted by final judgment of an offense punishable by ≥ 6 years, or already on probation)?
- Was the application filed within the 15-day reglementary period applicable?
- Has the PSIR been submitted and considered?
- Have mandatory and discretionary conditions been crafted to mirror public-safety concerns underlying destierro?
8. Conclusion
Under both the text of P.D. 968 and controlling Supreme Court rulings—Baclayon, Colinares, Bernardo, and Angeles—destierro squarely falls within the ambit of probationable penalties in the Philippines. What began as a perceived statutory gap has been closed by consistent judicial pronouncements and, later, by legislative fine-tuning through RA 10707. For practitioners, the critical tasks are timely filing and tailoring conditions so that probation furthers the protective purpose of banishment while advancing the rehabilitative spirit of the Probation Law.