LLAMADO VS. CA and Leon Gaw

 

LLAMADO VS. CA and Leon Gaw

June 29, 1989

Petition to review the decision of the CA

FELICIANO, J.

 

FACTS:

·       Ricardo Llamado (Treasurer of Pan Asia Finance Corp) was prosecuted for violation of BP Blg. 22. He had co-signed (with the President of the corp.) a post-dated check payable to private respondent Leon Gaw in the amount of P186,500, which was dishonored for lack of sufficient funds.

·       Petitioner was sentenced to imprisonment for a period of 1 year and to pay a fine of P200,000 with subsidiary imprisonment in case of insolvency. He is also required to reimburse to respondent the amount of P186,500 plus cost of suit. After the decision of the trial court was read to him, petitioner through counsel orally manifested that he was taking an appeal. TC forwarded records of the case to the CA.

·       Petitioner through his counsel received from CA a notice to file his Appellant’s Brief within 30 days. He managed to secure several extensions of time with which to file his brief, the last extension expiring on 18 Nov 1987.

·       Llamado, even while his Appellant’s Brief was being finalized by his then counsel of record, sought advice from another counselor. Petitioner, with assistance of his new counsel, filed in RTC a Petition for Probation invoking PD 968, as amended.

·       The petition was not accepted by the lower court since the records of the case had already been forwarded to the CA.

·       Petitioner then filed with the CA a “Manifestation and Petition for Probation” dated 16 November 1987, enclosing a copy of the Petition for Probation that he submitted to the trial court. He asked the CA to grant his petition for Probation or to remand the Petition back to the trial court.

·       The CA denied the Petition for Probation.

·       Petitioner now asks this court to review and reverse the opinion of the majority in the CA .

 

ISSUE:

              WON petitioner’s application for probation in this situation is barred under PD 968, as amended.

 

HELD:

·       Decision of CA was affirmed.

 

RATIO:

YES the application for probation is already barred. There were two amendments that happened to the law, and the present law allows applications for probation “after the TC shall have convicted and sentenced a defendant and—within the period of perfecting an appeal”.  It prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction.

 

·       ORIGINAL LAW:

o   Under Section 4 of PD 968, the trial court could grant an application for probation “at any time” “after it shall have convicted and sentenced a defendant” and certainly “after an appeal has been taken from the sentence of conviction”. Thus, the filing of the application for probation was deemed to constitute automatic withdrawal of a pending appeal.

 

·       First Amendment by PD 1257

-          It has established a prolonged but definite period during which an application for probation may be granted by the trial court :“After the trial court shall have convicted and sentenced a defendant but before he begins to serve his sentence.”

-          The cut-off time—the commencement of service of sentence—takes place not only after an appeal has been taken from the sentence of conviction, but even after judgment has been rendered by the appellate court and after judgment has become final.

-          In this last situation, it provides that “the application for probation shall be acted upon by the trial court on the basis of the judgment of the appellate court”

 

*Had the present case arisen while Section 4 of the statute as amended by PD 1257 was still in effect, Llamado’s application for probation would have had to be granted as it was filed well before the cut-off time.

 

·       Second Amendment by PD 1990.

-          This establishes a much narrower period during which an application for probation may be filed with the TC:

“after the TC shall have convicted and sentenced a defendant and—within the period of perfecting an appeal”

-          It prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction.

 

 

TC has lost jurisdiction over the case when petitioner perfected his appeal. The oral manifestation made after judgment was rendered was considered by the RTC as being equal to a written notice of appeal.

 

 

 

 

Ruling:

 

YES the application for probation is already barred. There were two amendments that happened to the law, and the present law allows applications for probation “after the Trial Court shall have convicted and sentenced a defendant and—within the period of perfecting an appeal”.  It prohibits the grant of an application for probation if the defendant has perfected an appeal from the judgment of conviction.

 

Within the period of perfecting an appeal

 

In applying Section 4 in the form it exists today (and at the time petitioner Llamado was convicted by the trial court), to the instant case, we must then inquire whether petitioner Llamado had submitted his application for probation "within the period for perfecting an appeal." Put a little differently, the question is whether by the time petitioner Llamado's application was filed, he had already "perfected an appeal" from the judgment of conviction of the Regional Trial Court of Manila.

 

As noted earlier, petitioner Llamado had manifested orally and in open court his intention to appeal at the time of promulgation of the judgment of conviction, a manifestation at least equivalent to a written notice of appeal and treated as such by the Regional Trial Court.

 

Penal laws should be liberally construed in favor of the accused and to avoid a too literal and strict application of the proviso in P.D No. 1990

 

Petitioner invokes the dissenting opinion rendered by Mr. Justice Bellosillo in the Court of Appeals. Petitioner then asks us to have recourse to "the cardinal rule in statutory construction" that "penal laws [should] be liberally construed in favor of the accused," and to avoid "a too literal and strict application of the proviso in P.D. No. 1990" which would "defeat the manifest purpose or policy for which the [probation law] was enacted-."

 

The Court is simply reading Section 4 as it is in fact written. There is no need for the involved process of construction that petitioner invites us to engage in, a process made necessary only because petitioner rejects the conclusion or meaning which shines through the words of the statute. The first duty of a judge is to take and apply a statute as he finds it, not as he would like it to be. 

 

Petitioner finally argues that since under Section 4 of Probation Law as amended has vested in the trial court the authority to grant the application for probation, the Court of Appeals had no jurisdiction to entertain the same and should have (as he had prayed in the alternative) remanded instead the records to the lower court. Once more, we are not persuaded. The trial court lost jurisdiction over the case when petitioner perfected his appeal. The Court of Appeals was not, therefore, in a position to remand the case except for execution of judgment. Moreover, having invoked the jurisdiction of the Court of Appeals, petitioner is not at liberty casually to attack that jurisdiction when exercised adversely to him. In any case, the argument is mooted by the conclusion that we have reached, that is, that petitioner's right to apply for probation was lost when he perfected his appeal from the judgment of conviction.