On
Bail When Discretionary

Section 5. Bail, when discretionary. — Upon conviction by the Regional Trial Court of an offense not punishable by death, reclusion Perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

Should the court grant the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail subject to the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be canceled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of his case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional Trial Court after notice to the adverse party in either case.


1. Not entitled to bail:
- An accused who has been convicted of an offense which carries a penalty of more than 20 years is not entitled to bail during the pendency of his appeal.
- An accused who is convicted of a capital offense is no longer entitled to bail on appeal since his conviction imports that the evidence of guilt is strong.

2. Trial court may grant bail before appeal is perfected
- Whether bail is a matter of right or discretion, the trial court may grant bail and approve the amount of the bail bond before the accused has perfected his appeal, appeal being perfected upon filing of a written notice of appeal and furnishing the adverse party copy thereof.

- However, if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

- Even if there is no notice of appeal, if the decision of the TC convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court.

3. After appeal is perfected, the trial court loses jurisdiction to grant bail and to approve bail bond.
- However, the accused may apply for bail or provisional liberty with the appellate court.

If The Penalty Imposed By The Trial Court Is Imprisonment Exceeding 6 Years, The Accused Shall Be Denied Bail Or His Bail Be Cancelled Upon A Showing By The Prosecution The Following:

a. Recidivism, quasi-recidivist or habitual delinquent or has committed the crime aggravated by the circumstance of reiteration;

b. That he has previously escaped from legal confinement, evaded sentence or violated the condition of his bail without valid justification;

c. That he committed the offense while under probation, parole or conditional pardon;

d. That the circumstances of his case indicate the probability of flight if released on bail; or

e. That there is undue risk that he may commit another crime during the pendency of the appeal.


Bar Exam Question (2006)

Bail; Matter of Right vs. Matter of Discretion (2006)

When is bail a matter of right and when is it a matter of discretion?

Suggested Answer:

Bail is a matter of right (a) before or after conviction by the inferior courts; (b) before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment., when the evidence of guilt is not strong (Sec. 4, Rule 114, 2000 Rules of Criminal Procedure).

Bail is discretionary: Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment (Sec. 5, Rule 114, 2000 Rules of Criminal Procedure).