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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

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 lessthan
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
anywhere within 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 lower would
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 phrase �penalty 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.