Probation After Appeal: The Fajardo Rule on When You Lose the Right

The right to probation is a privilege, not a right, and the law that governs it is the one in effect at the time of conviction—not at the time of the offense. In Fajardo v. Court of Appeals (G.R. No. 128508, February 1, 1999), the Supreme Court settled a common question: can a convicted person appeal a criminal conviction and still apply for probation if the appeal fails? The answer, under the amended Probation Law, is no.

The Facts of the Case

Daniel G. Fajardo was convicted in 1988 by the Regional Trial Court of Iloilo City of violating Batas Pambansa Bilang 22 (the Bouncing Checks Law). He was sentenced to eight months of imprisonment. He appealed to the Court of Appeals, which affirmed his conviction in 1990. The Supreme Court later denied his petition for review.

After the case was remanded to the trial court in 1995, Fajardo filed a motion for probation. He argued that when he committed the offense in 1981, the law still allowed a convicted person who had appealed to apply for probation. He also claimed that the law barring such applications was an ex post facto law and therefore invalid.

The trial court denied his motion. The Court of Appeals also denied his petition. Fajardo then elevated the matter to the Supreme Court.

The Legal Issue

The central issue was whether Fajardo could apply for probation under Presidential Decree No. 968 (the Probation Law) after he had appealed his conviction.

The key law was Presidential Decree No. 1990, which amended the Probation Law in 1985. It provided that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.

Fajardo argued that Presidential Decree No. 1990 was void because President Marcos allegedly no longer had legislative powers when he issued it. The Court rejected this argument, noting that the President at that time had legislative powers concurrently with the Batasan Pambansa.

The Ruling: Appeal and Probation Are Mutually Exclusive

The Supreme Court denied Fajardo's petition. The Court ruled that Presidential Decree No. 1990 is valid and constitutional. It became effective on July 16, 1986, fifteen days after its publication in the Official Gazette was released for circulation.

The Court also ruled that the decree is not an ex post facto law. An ex post facto law punishes an act that was innocent when committed. The Probation Law is not penal in character; it is a remedial statute. The amendment applies to accused persons convicted after its effectivity.

Since Fajardo was convicted on May 26, 1988—well after the amendment took effect—he was bound by the new rule. By choosing to appeal, he forfeited his right to apply for probation if his appeal failed.

The Court also rejected the Solicitor General's view that Fajardo should be allowed to apply for probation based on an earlier Court of Appeals decision. The Court noted that the cited case involved a conviction that became final in 1985, before the amended law took effect, and that a Court of Appeals decision is not a binding precedent.

Practical Takeaways

• Appeal and probation are now mutually exclusive. Under Presidential Decree No. 1990, once a defendant perfects an appeal from a conviction, the right to apply for probation is lost.
• The applicable law is the one in effect at the time of conviction, not at the time the offense was committed.
• The Probation Law is not penal in nature. It is a remedial statute, so amendments to it are not subject to the prohibition against ex post facto laws.
• Timing matters. If a conviction becomes final before the amended law takes effect, the old rules may still apply. But for convictions after July 16, 1986, the appeal-forfeiture rule governs.
• A defendant must make a strategic choice. Before appealing a conviction, consider whether probation is a realistic option. If it is, appealing may close that door permanently.

For defendants facing a criminal conviction, the decision to appeal or to apply for probation is a critical fork in the road. Understanding the timing rules under the Probation Law can make the difference between a second chance and a prison sentence.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.