SOME NOTES ON PENALTIES

1. Measures of prevention not considered as penalty (Art. 24)

a. Arrest and temporary detention of accused persons as well as their detention by reason of insanity or
imbecility or illness requiring their confinement in a hospital;
b. Commitment of a minor to a youth detention home or facility;
c. Suspension from employment or public office during the trial or in order to institute proceedings;
d. Fines and other corrective measures which, in the exercise of their administrative disciplinary
powers, superior officials may impose upon their subordinates;
e. Deprivation of rights and reparations which the civil laws may establish in penal form.

2. However, the period of preventive imprisonment will be deducted from the term of imprisonment (if the
accused is eventually convicted) under the following rules (Art. 29):
a. Full credit if the detention prisoner agrees voluntarily in writing with the assistance of counsel to
abide by the same disciplinary rules imposed upon convicted prisoners;
b. 4/5 credit or 80% if the detention prisoner does not agree in writing with the assistance of counsel to
abide by the said disciplinary rules;
c. But the period of preventive imprisonment will not be credited if the detention prisoner is:
i. A recidivist or has been previously convicted twice or more times of any crime;
ii. When upon being summoned for the execution of their sentence he has failed to surrender
voluntarily;
d. If the accused has undergone preventive imprisonment for a period equal to the possible maximum
imprisonment of the offense charged to which he may be sentenced, he shall be immediately
released without prejudice to the continuation of trial;
e. If crime committed is punishable only by destierro, the most that the offender may be held under
preventive imprisonment is 30 days whether the proceedings are terminated or not.

3. Duration of destierro is 6 months and 1 day to 6 years. It is considered a principal penalty. It is a

punishment whereby a convict is banished to a certain place and is prohibited from entering the place
designated in the sentence which should not be less than 25 kms but not more than 250 kms. If the
convict enters the prohibited place, he commits the crime of evasion of service of sentence under Art.
157. NOTE: Even if the range of destierro is 6 months and 1 day to 6 years, it is still considered lighter
than arresto mayor. The latter means complete deprivation of liberty while the former is only
banishment or prohibition to enter/reside within a radius of 25 kms from the place designated in the
sentence.

4. Destierro as a penalty is imposed in the following situations:

a. When a legally married person who had surprised his or her spouse in the act of sexual intercourse
with another and while in that act or immediately thereafter should kill or inflict serious physical
injuries upon the other spouse;
b. In the crime of grave or light threat, when the offender is required to put up a bond for good behavior
but failed or refused to do so under Art. 284, the convict shall be sentenced to destierro so that he
would not be able to carry out his threat;
c. In the crime of concubinage, the penalty presecribed for the concubine is destierro under Art. 334;
d. Where the penalty is only arresto mayor, but the offender is entitled to the privilege mitigating
circumstance which lowers the penalty by one degree which is destierro.

5. As to what are the principal and accessory penalties, see Art 25.
a. In classifying the penalties as principal and accessory, what is meant is that the penalties classified as
accessory need not be stated in the sentence. They follow the principal penalties imposed for the
crime as a matter of course;
b. Penalties which are both principal and accessory are perpetual or temporary absolute disqualification
and perpetual or temporary special disqualification;
c. As to the corresponding accessory penalties for reclusion perpetua, reclusion temporal, prision
mayor, prision correccional, arresto mayor/menor, see Arts. 41 to 44;
d. The accessory penalty common to all the principal penalties is the accessory penalty of confiscation
or forfeiture of the instruments or proceeds of the crime;
e. There is no crime in the RPC which carries the principal penalty of “bond to keep the peace”;
f. The principal penalty of “bond for good behavior” is not found in Art. 25 but is prescribed as a penalty
for the crime of grave or light threats under Art. 284. Do not interchange this with “bond to keep the
peace.”

6. As to duration and effect of penalties, see Art. 27.

7. As to subsidiary penalty, see Art. 39.

 a. It is not an accessory penalty;
b. It applies in either two situations:
i. When there is a principal penalty of imprisonment and it carries with it a fine; or
ii. When the penalty is a fine only.
c. Since it is not an accessory penalty, it must be expressly stated in the sentence. The sentence will
merely provide that in case of non-payment of the fine, the convict shall be required to undergo
subsidiary penalty;
d. So even if subsidiary penalty is proper in a case, if the judge failed to state in the sentence that the
convict shall be required to suffer subsidiary penalty in case of insolvency to pay the fine, the convict
cannot be required to suffer subsidiary penalty;
e. The convict cannot choose not to pay the fine and instead serve the subsidiary penalty;
f. Computation of subsidiary penalty:
i. If the penalty is imprisonment and fine, the convict cannot be made to undergo subsidiary
penalty more than 1/3 of the duration of the principal penalty and in no case shall it be more
than 1 year, whichever is lower;
ii. If the penalty is fine only, the most that the convict will be required to undergo subsidiary
penalty is 6 months if the felony committed is grave or less grave, otherwise only 15 days if
the felony committed is only slight;
g. The term “subsidiary imprisonment” is wrong because subsidiary penalty is not only served by
imprisonment. It follows the nature of the principal penalty. If the principal penalty is destierro, the
non-payment of the fine will also bring about the subsidiary penalty of destierro;
h. If the means of the convict should improve, even if he has already served subsidiary penalty, he shall
still be required to pay the fine and there is no deduction for that amount which the convict has
already served by way of subsidiary penalty.

8. Table of reduction of penalties according to the degree of participation and stage of accomplishment (see
Arts. 50-57 in relation to Art. 61)

CONSUMMATED FRUSTRATED ATTEMPTED

PRINCIPAL As provided -1 -2
ACCOMPLICE -1 -2 -3
ACCESSORY -2 -3 -4

9. Rules of graduating penalties under Article 61:

a. Rule 1. If penalty imposed is single and indivisible (reclusion perpetua), the penalty next lower in
degree is the penalty immediately following it which is reclusion temporal using the graduated scale
under Art. 71;
b. Rule 2. If the penalty prescribed is one or more divisible penalties to be imposed to their full extent
(meaning as a whole), the penalty next lower in degree is that immediately following the lesser of
the penalties prescribed. Example: If the penalty imposed is prision mayor to reclusion temporal, the
penalty next lower is that immediately following prision mayor which is prision correccional;
**The first part of this rule (two indivisible penalties) is no longer operative because there is now
only one indivisible penalty which is reclusion perpetua.
c. Rule 3. If the penalty prescribed is composed of one or two indivisible penalties (e.g. reclusion
temporal maximum to death), the penalty next lower shall be composed of the medium and
minimum periods of the proper divisible penalty and the maximum period of that immediately
following (e.g. prision mayor maximum to reclusion temporal medium);
**Even if there is now only one indivisible penalty (reclusion perpetua), if the penalty prescribed is
composed of one indivisible penalty and the maximum period of a divisible penalty, the penalty next
lower is the same as in the above (prision mayor maximum to reclusion temporal medium).
d. Rule 4. If the penalty prescribed is composed of several periods corresponding to different divisible
penalties (e.g. prision mayor medium to reclusion temporal minimum), the penalty next lower shall
also be composed of the same number of periods immediately following the minimum prescribed
(e.g. prision correccional medium to prision mayor minimum);
e. Rule 5. If the penalty prescribed is not provided for in the rules above, the courts shall proceed by
analogy. For example, if the penalty prescribed consists of one or two or three penalties to be
imposed to their full extent, the penalty next lower shall likewise consist of as many number of
penalties immediately following the lesser of the penalties prescribed. For example, of the penalty is
prision mayor to reclusion temporal, the penalty next lower is arresto mayor to prision correccional.

10. Effect of attendance of mitigating and/or aggravating circumstances and of habitual delinquency under
Art. 62:
a. As to aggravating circumstances which—
 i. in themselves constitute a crime such as “by means of fire” which is a crime of Arson by
itself;
ii. or those already included in the law in defining a crime and prescribing the penalty (e.g.
laying of hands upon a person in authority which is already included in defining the crime of
direct assault);
iii. or those already inherent in the crime (e.g. “dwelling” in trespass to dwelling)
- These shall no longer be considered in imposing the penalty because in (i) and (ii) they are
already considered by the law in prescribing the penalty for the offense and in (iii) the
circumstance is already absorbed by the crime committed.
b. Those aggravating and mitigating circumstances which are caused by the moral attributes of the
offender or his relations with the offended or any other personal cause, only the offender having
such attribute shall be affected. For example, only the minor can enjoy the privileged mitigating
circumstance of minority, or habitual delinquency shall be considered against the one to whom it
pertains and will not aggravate the crime of the other offender;
c. Modifying circumstances added by RA 7659 in Art. 62:
i. When advantage is taken of by the offender of his public position, the penalty shall be in its
maximum period regardless of the presence of mitigating circumstances. The rule in Art. 64
will not apply;
ii. The maximum penalty shall be imposed if the offense was committed by any person who
belongs to an organized/syndicated crime group.
d. As to habitual delinquency, see par. 5 of Art. 62.

11. Rules as to application of indivisible penalties (Art. 63):

a. If a single indivisible penalty is imposed (reclusion perpetua), the same penalty shall be applied
regardless of the presence of any mitigating or aggravating circumstance. However, the word
“mitigating” here does not include a privileged mitigating circumstance for this is always considered
even against a single indivisible penalty;
b. The second paragraph (two indivisible penalties) is no longer operative due to the abolition of the
death penalty by RA 9346.

12. Rules for the application of penalties which contain three periods whether it be a single divisible penalty
or composed of three different penalties each one of which forms a period (Art. 64):

Modifying circumstances Proper Period

1. No aggravating and no mitigating -medium
2. Mitigating only -minimum
3. Aggravating only -maximum
4. Some of both present -offset then apply the above rules
5. Two or more mitigating with no aggravating -lower the penalty by 1 degree in the proper
period
a. The courts cannot:
i. Lower the penalty by 1 degree when there is an aggravating circumstance even if the net
effect of the offsetting is that two or more mitigating circumstances are left;
ii. Lower by 2 degrees when there are 4 or more mitigating circumstances and no aggravating
circumstances because the law allows only 1 degree deduction no matter how many
mitigating circumstances are present;
iii. Impose a greater penalty than that prescribed by law no matter how many aggravating
circumstances are present.

13. Rules in cases where the penalty imposed is not composed of three periods (Art. 65 in relation to Art. 76):
a. Art. 76 gives the legal duration of divisible penalties, meaning it shall be considered divided into
three periods: minimum, medium, and maximum. When the law prescribes a penalty that does not
comply with this requirement, Art. 65 directs that the penalty shall be made to comply therewith by
dividing it into three periods to conform to the rule that divisible penalty shall be deemed as divided
into three periods. **Do not worry about the computation. You will not be asked to compute in the
Bar Exam.

14. Penalty to be imposed when the crime committed is not wholly excusable (Art. 69):
a. The mitigating circumstances of incomplete justifying or exempting circumstances are in the nature
of privileged mitigating circumstances because the penalty is reduced by 1 or 2 degrees if majority of
the conditions required to justify the act or to exempt from criminal liability are present. They
cannot be offset by any aggravating circumstance;
b. If there is present less than a majority of the conditions, it will be an ordinary mitigating
circumstance which will lower the penalty to the minimum period, not under this Article but under
Art. 13 (1).
15. Successive service of sentences/rule when a convict is given multiple sentences (Art. 70):
a. The general rule is that he shall serve them simultaneously if the nature of the penalties permits
simultaneous service of sentence. Otherwise, the penalties shall be served successively in the order
of their severity.
b. Examples of sentences which can be served simultaneously:
i. Imprisonment and fine
ii. Multiple death sentences (because you can only die once)
iii. Imprisonment and disqualification
c. But where the convict is sentenced to two or more terms of imprisonment, the terms should be served
successively.
d. Limitation on successive service of sentences: THE THREE-FOLD RULE:
i. The maximum duration of the convict’s sentence shall not be more than three-fold the
length of time corresponding to the most severe of the penalties imposed upon him. In
other words, the maximum penalty that can be served by the convict is equal to 3 times the
most severe of the penalties or the total of the penalties imposed, whichever is lower;
ii. Such maximum period, however, shall in no case exceed 40 years. Whatever is the lowest
between the sum of the penalties and 3 times the most severe, it shall not be more than 40
years;
iii. When the most severe penalty is reclusion perpetua, the imputed duration shall be 30 years,
thus 30 x 3 = 90 years. The convict shall serve not 90 but only 40 years pursuant to Art. 70;
iv. How to apply the 3-fold rule: Steps—
1. Get the most severe penalty following Art. 70
2. Multiply it by 3
3. Add the duration of all the different sentences
4. Compare the results of steps 2 and 3
5. The one to be applied is the lesser period which in no case shall exceed 40 years
v. “Pena perpetua” covers both reclusion temporal and life imprisonment. Hence for purposes
of the application of the 3-fold rule, life imprisonment is computed at 30 years also. This
also means that sentences imposed under special laws can also avail of this rule;
vi. The judge should still impose the correct penalties even if these will amount to more than
the lifetime of the prisoner. This is for the Director of Prisons to follow and not for the court.

16. THE INDETERMINATE SENTENCE LAW (Act No. 4103, as amended)

The purposes of this law are the following:
1.) Promote the prisoner's reformation by allowing him to serve sentence under a parole officer;
2.) Decongest the jails by allowing prisoners to be admitted into parole;
3.) Allow the government to save money on maintaining the jails;
4.) Prevent the prisoners' economic usefulness from going to waste.

It applies to all crimes, whether under the RPC or under special laws. However, it shall not apply to:
1.) Crimes punishable by death or life imprisonment
2.) Those convicted of treason, conspiracy or proposal to commit treason
3.) Those convicted of misprision of treason, rebellion, sedition or espionage
4.) Those convicted of piracy
5.) Habitual delinquents (but recidivists can qualify for indeterminate sentence because they're not the
same as habitual offenders)
6.) Those who escaped from confinement or evaded service of sentence
7.) Those who were granted conditional pardon but violated the terms of the pardon
8.) Those whose maximum prison term doesn't exceed 1 year
9.) Those already serving sentence when the indeterminate sentence law took effect (no longer
applicable because they're all dead by now)

Anybody who commits a crime falling under any of the above instances can't qualify for indeterminate
sentence. Consequently, a person who violated the Dangerous Drugs Act can qualify for indeterminate
sentence if the maximum penalty he's facing isn't in life imprisonment; the death penalty was repealed in
2006 by RA 9346.

The indeterminate sentence law is all about parole. If convicted, an indeterminate sentence is then
imposed by the court.

How does the law operate?

1.) If the crime is a violation of the Revised Penal Code:

The maximum penalty is fixed in accordance with the rules of the Revised Penal Code, taking into account
the attending aggravating and mitigating circumstances pursuant to Art. 64 of the RPC. The minimum
penalty will be put within the range of the penalty next lower than what the Revised Penal Code has
prescribed.

Example: In the crime of homicide, the penalty is reclusion temporal. But reclusion temporal is a divisible
penalty consisting of maximum, medium and minimum periods. Which period will we place the
maximum term of the Indeterminate Sentence? Pursuant to art 64, when there is no mitigating and no
aggravating circumstance, it should be placed at the medium period. Thus, the maximum penalty for the
example above is reclusion temporal in the medium period.

In getting the minimum penalty, the rule is to simply get the penalty one (1) degree lower from the
maximum penalty without taking into account the mitigating and aggravating circumstance. Thus, the
penalty one degree lower from reclusion temporal, without taking into account any mitigating or
aggravating circumstance, is prision mayor. Prision mayor is now the minimum penalty under the above
example.

Again, prision mayor is a divisible penalty. Which period can it be placed? Under the Indeterminate
Sentence Law, it would depend upon the discretion of the court on which period to place it. Thus, the
minimum penalty is prision mayor in any of its periods (whether minimum, medium or maximum).

Factors that could affect the imposition of minimum penalty:

1. Age
2. Conduct during trial
3. Mental or physical condition

Suppose in the example above, 1 aggravating circumstance was proven. What is now the maximum
penalty? It would still be reclusion temporal, but it shall be placed in the maximum period because of the
presence of 1 aggravating circumstance.

How about the minimum penalty? It would still be 1 degree lower from reclusion temporal, which is
prision mayor. In which period? It shall be discretionary upon the court.

(More examples)

1 mitigating but NO aggravating

maximum penalty: reclusion temporal in the minimum period
minimum penalty: prision mayor in any period

2 mitigating,NO aggravating (privileged mitigating)/or minority as privileged mitigating

maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period

The preceding example is an exception to the rule. If there is a privileged mitigating circumstance, we
take it into account first in order to obtain the proper maximum penalty. Then, from that maximum
penalty, we obtain the proper minimum penalty by getting the penalty 1 degree lower. Same rule applies
as to the period of the minimum penalty.

Remember: It will never become a privileged mitigating circumstance if there is an aggravating

circumstance present. For example, 8 mitigating and 1 aggravating will never become privileged
mitigating circumstance.

3 mitigating, NO aggravating
maximum penalty: prision mayor in the minimum period
minimum penalty: prision correctional any period

In the preceding example, there are 3 mitigating circumstance present and no aggravating circumstance.
The first two mitigating circumstance shall be a privileged mitigating circumstance. Thus, the penalty will
be reduced by 1 degree from reclusion temporal to prision mayor. The 3rd mitigating circumstance shall
place the penalty in the minimum period.

How does the law operate in case of a complex crime under Art. 48?
 Example: Estafa through falsification of public documents.

Under the Revised Penal Code, falsification of public documents (Article 171) is a more serious offense
punished by prision mayor than estafa (Article 315), punished only by prision correccional.

Thus, applying the Indeterminate Sentence Law, the maximum penalty for estafa through falsification of
public documents shall be prision mayor in the maximum period. The minimum penalty shall be prision
correctional, any period.

Suppose there was 1 mitigating circumstance proven. Maximum penalty would still be prision mayor in
the maximum period. In pursuant to Article 48, even if there is a mitigating circumstance present, it
should still be imposed at the maximum period.

How about if there are 2 mitigating circumstance and no aggravating?

The rule is, if it is a privileged mitigating circumstance, we lower by the penalty by one degree but still
place it at the maximum period. Thus, the maximum penalty shall be prision correctional in the maximum
period.

2.) If the crime is a violation of a Special Law

How to get maximum and minimum penalty:

1. The maximum penalty should NOT exceed the maximum provided for by that law.
2. The minimum penalty should NOT fall below the minimum provided by the law.

The maximum term can't exceed the maximum that the law in question has prescribed and the minimum
can't be less than the prescribed minimum.

In case the penalty comes from the result of a plea-bargaining, the minimum penalty will be the one
lower than that of the downgraded offense.

Minimum and maximum penalties are specified in order to prevent unnecessary deprivation of liberty
and enhance his economic usefulness. The maximum penalty is necessary for the imposition of accessory
penalties while the minimum penalty is important to allow the prisoner the chance for parole. In short, he
is given a chance to redeem himself.

Once the minimum term is served, the prisoner becomes eligible for parole if he proves that he has
complied with the conditions imposed on him when he was made to serve sentence. Parole doesn't mean
a person has fully served sentence, however. It means that he is allowed to serve the remainder of his
sentence out of jail but under the supervision of an appointed parole officer. He is required to report to
this parole officer on appointed dates for the remainder of the prison term. During parole, the prisoner
released on parole must apply himself to a legitimate occupation and prove himself to be a law-abiding
citizen. His residence will be fixed and changed from time to time under the discretion of the Board of
Indeterminate Sentence/Board of Pardons and Parole. The board can issue a final certification of release
if the paroled prisoner has proven himself to be a law-abiding citizen.

If he violates the terms and conditions of his parole, he can be arrested again. If that happens, he will
have to serve the remaining term of his prison sentence behind bars.

17. THE PROBATION LAW (PD 968, as amended)

Probation is a privilege, not a right. It can be granted only if the accused deserves it. If granted, the
accused will be convicted but released. He will then comply with mandatory and discretionary conditions
imposed by the court and be placed under the supervision of a probation officer. The discretionary
conditions depend on the court's assessment of the accused but they must be constructive, consistent
with his conscience, not as burdensome as the original penalty of the crime and must not unreasonably
restrict his liberty. The mandatory conditions are:
1.) To report to the probation officer within 72 hours from the time the order was received; and
2.) To regularly report to the probation officer at least once a month or sooner as may seem fit.

The Probation Law has objectives similar to the Indeterminate Sentence Law:
1.) Rehabilitation and correction of the accused through individualized treatment
2.) To give better chances for a repentant criminal to reform
3.) Prevent further commission of crimes as he is placed under the probation officer's supervision
4.) Decongest the jails
5.) Save the government from spending money for maintaining the accused in prison

Probation may be granted whether the penalty is imprisonment or a fine only. For imprisonment, the
penalty should be 6 years or less. Probation will be denied in any of the following circumstances:
1.) The accused needs correctional treatment that can best be provided if he is committed to an
institution
2.) There is an undue risk that he will commit another crime during the probation period.
3.) Probation will make the offense not look serious.

There are also disqualifications. These are:

1.) The prison term exceeds 6 years (even if by just 1 day)
2.) Those convicted of subversion
3.) Those convicted of the following crimes against national security:
a.) Treason
b.) Conspiracy and proposal to commit treason
c.) Misprision of Treason
d.) Espionage
e.) Inciting to war and giving motives to reprisal
f.) Violation of neutrality
g.) Correspondence with hostile country
h.) Flight to enemy country
i.) Piracy and mutiny (piracy is an international crime and can be tried by any country in the
world.)
4.) Those convicted of the following crimes against public order:
a.) Rebellion, insurrection, coup, sedition
b.) Illegal assemblies and associations
c.) Direct/indirect assault, resistance an disobedience
d.) Public disorders (tumults, alarms and scandals)
e.) Delivery of prisoners from jail
f.) Evasion of service of sentence
g.) Quasi-recidivism
5.) Those who were previously convicted of a crime punishable by at least 1 month and 1 day and/or a fine
of at least Php200.00
6.) Those who were once recipients of probation (probation can be granted to a person only once.)
7.) Those who were already serving sentence when the Probation Law took effect (Martial Law years)
8.) Those enjoying the benefits of PD 603 (the Child and Youth Welfare Code) and similar laws
9.) Those who perfected an appeal (probation and appeal are mutually exclusive remedies; you can't use
both at the same time.)

The application for probation must also be file during the period for perfecting an appeal. Take note:
conviction becomes final if the accused applies for probation. If granted, the accused's sentence is
suspended but still stands. If he violates his probation, he can be arrested and brought to court for an
informal summary hearing (but can post bail while the hearing is going on as well.) If the violation is
proven, the court may or may not revoke the probation. If probation is revoked the accused will serve full
sentence. The revocation order is not appealable.

If the probation prisoner complies with his requirements throughout the period of probation the court
will give him a final discharge. The probationer 's civil rights will then be fully restored and his penalties
and fines will be discharged.

-oOo-