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;
 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 -lower the penalty by 1 degree in the
aggravating 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
 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.

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
 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
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)
 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-