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By Atty.

Harold Huliganga

In my five years now as a Court Attorney, I had, on several occasions, come across
lower court decisions incorrectly applying the Indeterminate Sentence Law (I. S. Law)
or Act No. 4103. It is seriously disturbing that despite its seeming simplicity and
brevity, some judges had been perpetually misapplying it.
The basic mandate of the I. S. Law is the imposition of an indeterminate sentence
which is comprised by a MINIMUM term and a MAXIMUM term. It is indeterminate
in the sense that after serving the MINIMUM, the convict may be released on parole,
or if he is not fitted for release, he shall continue serving his sentence until the end of
the MAXIMUM. It is the fixing of the MINIMUM and MAXIMUM terms which
generates a lot of confusion and is the constant source of error of some judges.
There is not much difficulty in ascertaining the indeterminate sentence if the crime is
a violation of a special law because in such a case, the I. S. Law merely requires that
the MAXIMUM term thereof shall not exceed the maximum fixed by the special law
while the MINIMUM shall not be less than the minimum prescribed therein.
Accordingly, if a special law imposes a penalty of three (3) to nine (9) years of
imprisonment, the MINIMUM of the indeterminate sentence cannot be less than
3 years while the MAXIMUM thereof cannot be more than 9 years. Hence,
the indeterminate sentence may be decreed as 3-9 years, 3 years & 9 months 7 years & 8 months, 3-4 years, 3-5 years, 5-8 years, 8-9 years,
etc., depending on the sound discretion of the judge.
However, it should be stressed that the reference to special law in this regard refer to
those which provide for one specific penalty or a range of penalties with definitive
durations, such as imprisonment for eight years or for one year to five years
but without division into periods or any technical statutory cognomen. Where the
penalty in the special law adopts the technical nomenclature and signification of the
penalties under the Revised Penal Code (RPC), such as prision mayor, prision
correccional maximum, etc., the ascertainment of the indeterminate sentence will
be based on the rule intended for those crimes punishable under the RPC.
The rule for ascertaining the indeterminate sentence for crimes punishable under the
RPC is much arcane and complicated than the rule applied in those crimes punishable
under a special law. In crimes punishable under the RPC, the indeterminate sentence
is arrived at by determining the MAXIMUM term, which, in view of the attending

circumstances, could be properly imposed under the rules of the RPC, and the
MINIMUM term, which shall be within the range of the penalty next lower to that
prescribed by the RPC for the offense.
Prior to the effectivity of the I. S. Law, prison sentences were imposed and fixed as a
straight penalty exactly as provided for under the RPC, modified only by the
applicable rules therein, to wit: Articles 46, 48, 50 to 57, 61, 62, 64, 65, 68, 69, and
71. The MAXIMUM term of the indeterminate sentence is determined exactly in that
manner as if the Indeterminate Sentence Law had never been
enacted. Thus, same rules and provisions (except par. 5 of Art. 62) must be taken into
account in determining the MAXIMUM term of the indeterminate penalty. In
determining the MAXIMUM of the indeterminate sentence, the following questions
may be asked by way of a guide or checklist: (a) What is the imposable penalty for the
crime?, (b) Is the convicted felon a principal, accessory or accomplice?, (c) Was the
crime consummated, frustrated or attempted?, (d) Is the crime committed a complex
crime?, (e) Is the commission of the crime attended by any mitigating or aggravating
circumstances?, (f) Is the penalty for the crime indivisible or composed of three
periods, i.e. minimum, medium and maximum periods?, and (g) Is the accused
entitled to a privilege mitigating circumstance?
For instance, if a person is convicted as a principal in the crime of homicide, the
imposable penalty under Art. 249 of the RPC is reclusion temporal, a divisible
penalty. In the absence of any mitigating or aggravating circumstance, the
MAXIMUM of the indeterminate penalty will be taken anywherewithin the
range of reclusion temporal medium, i.e. from 14 years, 8 months and 1 day to 17
years and 4 months. The emphasis is on the phrase within the range which means
that anywhere within that period may be fixed the MAXIMUM term of the
indeterminate sentence. Thus, the judge, at his sound discretion, may fix it at 14
years, 10 months and 26 days, 17 years, 2 months and 6 days, 16 years,
etc.
A greater difficulty in fixing the MAXIMUM term of the indeterminate penalty arises
where the range of the penalty provided for in the RPC is composed of only two
periods. For example, in the crime of estafa under Article 315 of the RPC, the
imposable penalty is prision correccional maximum to prision mayor minimum. In
such case, the total number of years included in the two periods should be divided into
three equal periods of time, forming one period for each of the three portions.
Thus: minimum period 4yrs., 2mos. & 1day to 5yrs., 5mos. & 10days; medium
period 5yrs., 5mos. & 11days to 6yrs., 8mos. & 20days; and maximum period
6yrs., 8mos. & 21days to 8yrs.

In determining the MINIMUM term of the indeterminate sentence, the I. S. Law


mandates that the same be within the range of the penalty next lower to that prescribed
by the RPC for the offense. In this regard, wide latitude of discretion is given to the
courts to fix the MINIMUM of the indeterminate penalty anywhere within the range
of the penalty next lower, without regard to any modifying circumstances and without
reference to the periods into which it may be subdivided. In the previous example
involving the crime of homicide, the imposable penalty is reclusion
temporal. The penalty next lowerwould therefore be prision mayor. Within the range
of prision mayor, the court may fix the MINIMUM of the indeterminate penalty. Thus,
the judge may fix it at 6 years and 1 day, 6 years and 5 months, 8
years, 12 years, etc. While ample discretion is given to courts in fixing the
MINIMUM of the indeterminate sentence, the determination thereof nonetheless
presents two aspects: first, the more or less mechanical determination of the extreme
limits of the minimum imprisonment period; and second, the broad question of the
factors and circumstances that should guide the discretion of the court in fixing the
minimum penalty within the ascertained limits.
The common practice has been to fix the MINIMUM of the indeterminate sentence
exactly one degree lower to the MAXIMUM arrived at. Thus, for example, if the
MAXIMUM fixed by the court is reclusion temporal medium, the MINIMUM is
usually fixed at prision mayor medium, which is exactly a degree lower. While the
MINIMUM arrived at in that case is technically correct, such nonetheless ignores the
theoretical signification of the phrasepenalty next lower under the I. S. Law.
Conscientious adherence to the provisions of the I. S. Law is an indispensable
component of a fair and impartial judgment. For what could be the difference of even
only one day in the period of imprisonment of a convict could mean so much to the
precious and cherished liberty of the person.

ndeterminate Sentence Law (ISLAW): How to determine


maximum and minimum penalties
(Act no 4103 as amended)
The Indeterminate Sentence Law is mandatory in all cases, EXCEPT if the accused will fall in any of the
following exceptions:
1. if sentenced with a penalty of death or life imprisonment
2. if convicted of treason, conspiracy, proposal to commit treason
3. if convicted of misprision of treason, sedition, rebellion or espionage
4. if convicted of piracy

5. if the offender is a habitual delinquent


6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief executive
8. where the maximum term of imprisonment does not exceed 1 year (important!)
9. if convicted by final judgement at the time of the effectivity of Act No. 4103
10. if penalized with suspension or distierro
If accused fall in any of the foregoing exceptions. DO NOT APPLY ISLAW!
ISLAW applies to offenses punished by Special Law and Revised Penal Code.
Why is ISLAW mandatory?
In the application of the Indeterminate Sentence Law the judge will get the maximum penalty and likewise
the minimum penalty. If the accused was already able to serve the minimum term of his indeterminate
sentence and upon the approval of the Board, the accused now becomes eligible for parole. ISLAW is
favorable to the accused.
If the accused was granted parole and violated some conditions of the parole, What will happen?
A warrant of arrest will be issued by the court and the accused will be made to serve the rest of the
remaining or unexpired portion of his sentence. (But in probation you go back to number 1, serving of
sentence will be from the beginning)
Application of ISLAW:
How to get maximum and minimum penalty in Special Law:
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.
How to get maximum and minimum penalty in Revised Penal Code:
Example: In the crime of homicide, under the Revised Penal Code, the offender is sentenced to reclusion
temporal.
The maximum penalty under the Indeterminate Sentence Law 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?
Guide for determining the maximum penalty:
1. Determine the entire range of the penalty
2. Determine if there is mitigating or aggravating circumstance
Which period will the maximum penalty be placed?
In 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.

What is the minimum penalty now?


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 for our example.
Important: If your maximum penalty is wrong, it follows that the minimum penalty will also be wrong.
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 period.
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)
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. 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.
4 mitigating, NO aggravating
maximum penalty: prision correctional in the medium period (2 privileged circumstance. Thus we lower by
2 degrees)
minimum penalty: arresto mayor any period
5 mitigating, NO aggravating
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period
At most we can only lower by 2 degrees. Thus, if there are 6 mitigating circumstance and NO
aggravating:
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period
How is Indeterminate Sentence Law applied in complex crimes (Article 48)?
A complex crime is punished by the most serious offense and shall be imposed in its maximum period.
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 correctional.
Thus, applying the Indeterminate Sentence Law, the maximum penalty for estafa through falsification of
public documents shall be prision mayor in the maximum period. 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.
4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period

TABLE SHOWING THE DURATION OF DIVISIBLE PENALTIES AND THE TIME INCLUDED IN EACH OF
THEIR PERIODS
Reclusion temporal:
Included in the penalty in its entirety: From 12 years and 1 day to 20 years
Included in its minimum period: From 12 years and 1 day to 14 years and 8 months
Included in its medium period: From 14 years, 8 months and 1 day to 17 years and 4 months
Included in its maximum: From 17 years, 4 months and 1 day to 20 years
Prision mayor, absolute disqualification and special temporary disqualification:
Included in the penalty in its entirety: From 6 years and 1 day to 12 years
Included in its minimum period: From 6 years and 1 day to 8 years
Included in its medium period: From 8 years and 1 day to 10 years
Included in its maximum: From 10 years and 1 day to 12 years
Prision correccional, suspension and destierro:
Included in the penalty in its entirety: From 6 months and 1 day to 6 years
Included in its minimum period: From 6 months and 1 day to 2 years and 4 months
Included in its medium period: From 2 years, 4 months and 1 day to 4 years and 2 months
Included in its maximum: From 4 years, 2 months and 1 day to 6 years
Arresto mayor:
Included in the penalty in its entirety: From 1 month and 1 day to months
Included in its minimum period: From 1 to 2 months
Included in its medium period: From 2 months and 1 day to 4 months
Included in its maximum: From 4 months and 1 day to 6 months
Arresto menor:
Included in the penalty in its entirety: From 1 to 30 days
Included in its minimum period: From 1 to 10 days
Included in its medium period: From 11 to 20 days
Included in its maximum: From 21 to 30 days