G.R. No. 3783 - Santiago vs. Insular Government

On or about September 24, 2005, in Las Piñas City, petitioner Mustapha Dimakuta y Maruhom (“petitioner”) was indicted for Violation of Section 5(b), Article III of R.A. 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination) on one AAA, then 16 years old, by willfully and unlawfully touching her breasts and private parts without consent.
After trial, the Regional Trial Court (RTC) rendered judgment (September 3, 2008), convicting petitioner of the charged offense and sentencing him to an indeterminate term of ten (10) years prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day reclusion temporal, as maximum; perpetual absolute disqualification; fine of ₱20,000; civil indemnity of ₱25,000; and moral damages of ₱25,000.

Petitioner appealed to the Court of Appeals (CA), arguing that there was no proof of non-consent, force, duress or intimidation.
The Office of the Solicitor General (OSG) commented that the evidence established only Acts of Lasciviousness under Revised Penal Code (RPC) Article 336.
On June 28, 2012, the CA issued a Decision adopting the OSG’s view, finding petitioner guilty of Acts of Lasciviousness (RPC Art. 336) and sentencing him to an indeterminate term of six (6) months arresto mayor, as minimum, to four (4) years and two (2) months prision correccional, as maximum; civil indemnity of ₱20,000; and moral damages of ₱30,000.

On July 23, 2012, petitioner filed a “manifestation with motion” before the CA, seeking leave to apply for probation upon remand to the RTC, invoking Colinares v. People.
By Resolution dated September 3, 2012, the CA denied the motion, holding that petitioner had challenged the merits of his conviction rather than merely the penalty.
A motion for reconsideration was likewise denied (March 13, 2013), prompting this petition for review on certiorari.

Does perfecting an appeal from a conviction bar an application for probation under Section 4 of P.D. 968, as amended?
May petitioner, whose sentence was reduced on appeal to a prison term within the probationable limit, still apply for probation despite having appealed the RTC’s conviction?