principle of conspiracy was again applied
suppletorily.
BAR 2017 LAST MINUTE FORESIGHT
IN
SPECIAL PENAL LAWS
By
DEAN GEMY LITO L. FESTIN
PUP COLLEGE OF LAW
___________________________________________
__________
1.00 WHAT IS A SPECIAL PENAL LAW?
It is a penal law which punishes acts
not defined and penalized by the Penal
Code. U.S. vs. Serapio, 23 Phil. 584
1.01 IS THE REVISED PENAL CODE
APPLICABLE IN SPECIAL LAWS?
Article 10 of the Revised Penal Code
provides:
“Offenses which are or in the future
may be punishable under special laws are
not subject to the provisions of this Code.
This Code shall be supplementary
to such laws, unless the latter should
specially provide the contrary.”
The first sentence provides for the
general rule. Special laws are not subject to
the provisions of the Revised Penal Code.
Hence, the provisions on stages of execution
under Article 6, degree of participation of
persons who are criminally liable under Title
Two and the appreciation of the modifying
However, when the penalties under
the special law are different from and are
without reference or relation to those under
the Revised Penal Code, there can be no
suppletory effect of the rules, for the
application of penalties under the Code or by
other relevant statutory provisions are
based on or applicable only to said rules for
felonies under the Code. People vs. Simon, 234
SCRA 576
1.02 DIFFERENTIATE CRIMES PUNISHED
UNDER THE REVISED PENAL CODE
FROM CRIMES PUNISHED UNDER
THE SPECIAL PENAL LAW.
a. In crimes punished under the
Revised Penal Code, they are
generally regarded as mala in se,
the act committed in inherently
wrong or immoral; under a
special penal law, crimes are
regarded as mala prohibita or
the act is merely prohibited by
law;
circumstances in the proper imposition of
penalties are not applicable, as a rule, to
special penal laws. Consequently, in Noble vs.
People, 77 Phil. 1086, plea of guilt as a
mitigating circumstance is not available to
offenses punishable under special laws.
 The second sentence refers to the
suppletory effect of the Revised Penal Code
to special laws, unless the latter should
specially provide the contrary. In People vs.
Ladonga, G.R. No. 141066, February 17, 2005,
the Supreme Court applied the principle of
conspiracy provided under Article 6 of the
Revised Penal Code in suppletory character
to violation of B.P. 22 case. In Tan vs. Spouses
Tan, G.R. No. G.R. No. 168852, September 30,
2008, in a case involving Violence Against
Women and Children or R.A. 9262, the
*Exception:
Plunder is malum in se.
Estrada vs. Sandiganbayan, G.R. No.
148560. November 19, 2001.
In the decision, the Supreme Court
ruled: “The legislative declaration in R.A. No.
7659 that plunder is a heinous offense implies
that it is a malum in se. For when the acts
punished are inherently immoral or inherently
wrong, they are mala in se and it does not
matter that such acts are punished in a special
law, especially since in the case of plunder the
predicate crimes are mainly mala in se.
Indeed, it would be absurd to treat
prosecutions for plunder as though they are
mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard
to the inherent wrongness of the acts.”
b. In crimes under the Revised Penal
Code, good faith is a proper
defense; in a special penal law,
good faith is not a defense;
*Exception:
1
 penalty imposable; in a special

penal law, they are not;

Plunder being malum in se, criminal

intent is required. The elements of mens rea

must be proven in a prosecution for plunder.

Estrada vs. Sandiganbayan, G.R. No. 148560.

November 19, 2001.

c. Under the Revised Penal Code, the

stages of execution under Article 6 of

the Revised Penal Code is considered

in arriving at the proper penalty to be

imposed; in a special penal laws,

they are not;

d. Under the Revised Penal Code , the

degree of participation of the

offenders under Title Two of the

Revised Penal Code is taken into

consideration on the penalty

imposable; in a special penal law, it is

not;

*Exceptions:

1. Under Sections 4 and 5 of the

Human Security Act of 2007, there may be

accomplices and accessories.

2. Likewise, under Section 13 of or

R.A. 7610 or the Anti-Torture Act, there may

be principals and accessories.

3. Under Section 2 of R.A. 7080, or

otherwise known as the Anti-Plunder Law, as

amended by Section 12 of R.A. 7659, it

provides that in the imposition of penalties,

the degree of participation as provided

under the Revised Penal Code, shall be

considered by the Court.

e. Under the Revised Penal Code, the

modifying circumstances are

appreciated in determining the

 f. The Revised Penal Code uses the
nomenclature of penalties provided
under the Revised Penal Code, it a
special penal law, it does not;
*Exceptions:
1. Article 6 of the Anti-Child Abuse
Law provides for the application of the
nomenclature of penalties under the
Revised Penal Code. Ex. Under Section 10
thereof, it states that “any person who shall
commit any other acts of child abuse, cruelty
or exploitation or to be responsible for other
conditions prejudicial to the child’s
development including hose covered by
Article 59 of the Presidential Decree No. 603,
as amended, but not covered by the Revised
Penal Code, as amended, shall suffer the
penalty of prision mayor in its minimum
period. “
Although R.A. No. 7610 is a special
*Exception:
Under Section 2 of R.A. 7080, or
otherwise known as the Anti-Plunder Law,
as amended by Section 12 of R.A. 7659, it
provides that in the imposition of penalties,
the attendance of mitigating and
extenuating circumstances as provided by
the Revised Penal Code, shall be considered
by the Court.
law, the rules in the Revised Penal Code for
graduating penalties by degrees or
determining the proper period should be
applied. Sanchez vs. People 588 SCRA 747,
June 5, 2009.
2. Likewise, under Section 14 of R.A.
7610 or the Anti-Torture Act, it uses again
the nomenclature of penalties under the
Revised Penal Code.
1.03 DIFFERENTIATE “INTENT TO
COMMIT A CRIME” FROM “INTENT
TO PERPETRATE THE ACT”.
When the crime is punished by a
special law, as a rule, intent to commit the
crime is not necessary. It is sufficient that the
offender has the intent to perpetrate the act
prohibited by the special law. Intent to
commit the crime and intent to perpetrate
the act must be distinguished.
A person may not have consciously
intended to commit a crime; but he did
intend to commit an act, and that act is, by the
very nature of things, the crime itself. In the
first (intent to commit the crime), there must
be criminal intent; in the second (intent to
perpetrate the act) it is enough that the
prohibited act is done freely and consciously.
Elenita C. Fajardo vs. People, G.R. No. 190889,
January 10, 2011
2
 STILL BE GRANTED?(SEC.4)

1.04 ARE SPECIAL LAWS AMENDING

CERTAIN PROVISIONS OF THE

REVISED PENAL CODE

No, Probation Law expressly

CONSIDERED MALA PROHIBITA?
provides:

No, special laws which are intended “x x x no application for probation

merely as amendments to certain provisions shall be entertained or granted if the

of the Revised Penal Code are mala in se and defendant has perfected an appeal from
the judgment of conviction.”
still subject to its provision.
The Probation Law prohibits a judge

from entertaining or granting an application

for probation if the defendant has perfected

-oooOOOooo-
an appeal from the judgment of conviction.

Salvan vs People, 410 SCRA 638

CHAPTER I. PROBATION LAW In Sable vs. People, 584 SCRA 619,

April 7, 2009, the application for probation

Presidential Decree No. 968
was denied. In this case, petitioner already

[BAR Q. 2012, 2010, 2009, 2005, 2004, filed a Notice of Appeal before the RTC before

2003, 2002, 2001, 1997, 1995, 1994, the application was instituted. The law is

1993, 1992, 1990, 1986] patently clear: "no application for probation

shall be entertained or granted if the

defendant has perfected the appeal from the

judgment of conviction."

Illustrative cases
1.00 WHAT ARE THE PURPOSES OF

PROBATION? (SEC.2) reformation of a penitent offender which

might be less probable if he were to serve a
[BAR Q.1986, 1989]
prison sentence; and

The purposes of probation are as

(c) to prevent the commission of
follows:
offenses.

(a) to promote the correction and

1.01 WHEN MUST THE APPLICATION FOR
rehabilitation of an offender by providing
PROBATION BE FILED?
him with individualized treatment;
An application for probation must

b) to provide an opportunity for the be made within the period for perfecting an
appeal. Sable vs. People 584 SCRA 619, April 7, 1. BAR Q.[2010] Matt was found guilty

2009 of drug trafficking while his younger

brother Jeff was found guilty of

1.02 IF THE CONVICT HAD ALREADY
possession of equipment, instrument,
PERFECTED AN APPEAL, CAN AN
apparatus and other paraphernalia for
APPLICATION FOR PROBATION
dangerous drugs under Section 12 of

Republic Act No. 9165. Matt filed a

petition for probation. Jeff appealed his

conviction during the pendency of which

he also filed a petition for probation. The

brothers’ counsel argued that they being

first time offenders, their petitions for

probation should be granted. How would

you resolve the brothers’ petitions for

probation?

Suggested Answer: Both petitions

should be denied. Any person found guilty of

drug trafficking is disqualified to avail of the

benefits of probation. Hence, Matt petition

should be dismissed. Insofar as Jeff is

concerned, his act of appealing his conviction

disqualifies him to avail of probation.

Probation law expressly states that no

application for probation shall be

entertained or granted if the defendant has

3
 IMPLICATION ON THE RIGHT TO
APPEAL IF THE APPLICATION FOR
PROBATION WAS PREVIOUSLY
FILED ?
perfected an appeal from the judgment of
Section 4 of P.D. 968 as amended
conviction.
expressly states:
2. BAR Q.[2001] A, a subdivision
“The filing of the application for
developer, was convicted by the RTC of
probation shall be deemed a waiver of the
Makati for failure to issue the
right to appeal.”
subdivision title to a lot buyer despite

full payment of the lot, and sentenced to

suffer one year imprisonment. A

appealed the decision of the RTC to the

Court of Appeals but his appeal was

dismissed. May A still apply for

probation? Explain.

Suggested Answer: No, A may no

apply for probation. The appeal that he filed

from the judgment of conviction disqualifies

him to avail of probation. Probation law

provides that no application for probation

shall be entertained or granted if the accused

has perfected an appeal from the judgment of

conviction.

1.03 WHAT IS THEREFORE THE

IMPLICATION ON THE
APPLICATION FOR PROBATION IF
AN APPEAL IS ALREADY
PERFECTED?

By perfecting their appeal,

petitioners ipso facto relinquished the

alternative remedy of availing of the

Probation Law, the purpose of which is

simply to prevent speculation or

opportunism on the part of an accused who,

although already eligible, does not at once

apply for probation, but did so only after

failing in his appeal. Lagrosa vs People, 405

SCRA 357

1.04 ON THE OTHER HAND, WHAT IS THE

imposed the indeterminate penalty of DELICTO?

imprisonment of 3 years, 2 months and 1

No. In an appeal from a judgment of
day as minimum and six years as
conviction, the criminal liability and the civil
maximum, both a prision correctional
liability ex delicto should be considered
and was ordered to indemnify the
independently, each with its own
offended party in the amount of
corresponding effects.
P3,000.00. He filed an application for

probation upon the promulgation of the In People vs. Efren Salvan Y Presenes,

judgment. What is the legal effect of his G.R. No. 153845 September 11, 2003, the

application for probation on the
judgment of conviction? Does said
application interrupt the running of the
period of appeal?
Court reiterated that the law that bars an
appeal of the judgment of conviction, as well
as its corresponding criminal liability, should
not bar an appeal of the civil aspect of the
same judgment.

Suggested Answer: The legal effect of

1.06 MAY PROBATION BE GRANTED EVEN
Johnny’s application for probation effectively
IF THE SENTENCE IMPOSES A FINE
waives his right to appeal. Judgment of
ONLY?
conviction had become final and executory

upon filing of the said application. The remedy Yes, Section 4 of the same law states:

of appeal is unavailing. “Probation may be granted whether the

sentence imposes a term of imprisonment
1.05 IS A WAIVER OF THE RIGHT TO or a fine only.”
APPEAL FROM A JUDGMENT OF
CONVICTION LIKEWISE A WAIVER 1.07 IS AN ORDER GRANTING OR

ON THE CIVIL LIABILITY EX DENYING PROBATION

Illustrative case

APPEALABLE? BAR Q.[2002]

BAR Q.[1992] Johnny Gitara was

convicted of the crime of estafa by the

Regional Trial Court of Manila. He was

4
 (5) Who Are Already Serving Sentence At

The Time The Substantive Provisions Of

This Decree Became Applicable.”
1.08 HOW DOES THE PREVAILING

JURISPRUDENCE TREAT APPEAL In addition:

AND PROBATION AS REMEDIES?

(6) Who Has Perfected An Appeal From

Prevailing jurisprudence treats The Judgment Of Conviction. (Sec.4)

appeal and probation as mutually exclusive

remedies because the law is unmistakable
about it and, therefore petitioner cannot
avail herself of both.
(7) Any Person Convicted Of Drug
Trafficking or Pushing Regardless of the
Penalty Imposed By The Court. (Sec. 24 of
R.A. 9165, The Comprehensive Dangerous

1.09 WHAT IS THE LEGAL EFFECT OF

PROBATION?

A conviction becomes final when the

accused applies for probation.

1.10 WHO ARE DISQUALIFIED TO AVAIL

OF THE BENEFITS OF PROBATION?

(SEC.9)

Probation Law enumerates who are

disqualified to avail of the benefits of

probation. They are the following:

“SECTION 9. Disqualified Offenders.-

THE BENEFITS OF THE PROBATION

DECREE SHALL NOT BE EXTENDED TO

THOSE:

(1) Sentenced To Serve A Maximum Term

Of Imprisonment Of More Than Six Years.

(2) Convicted Of Any Crime Against

National Security or the Public Order.

(3) Who Have Previously Been Convicted

By Final Judgment Of An Offense Punished

By Imprisonment Of more than 6 months
and 1 day and/or a fine of more than
P1,000.00( as amended by R.A.10707);

(4) Who Have Been Once On Probation

Under The Provisions Of This Decree.

Drugs Act Of 2002) convictionin this case has nothing to do with

his ineligibility to avail of probation.

1.11 ILLUSTRATION OF THE

DISQUALIFICATIONS OF a. Are there exceptions where even

PROBATION LAW. if the convict had filed an appeal

still he is allowed to file a petition

(1) Sentenced To Serve A Maximum
for probation?
Term Of Imprisonment Of More Than

Six Years. Yes, there are exceptions and they

are the following:

Illustrative case

1. One exception is provided under

BAR Q.[2002] A was charged with
homicide. After trial, he was found
guilty and sentenced to six (6) years and
one (1) day prision mayor, as
minimum, to twelve (12) and one (1)
Section 11 of RA 9265. It provides that the
accused first-time offender may avail of
suspended sentence subject to certain
conditions. If there is violation of any of
the conditions, the court shall pronounce

day of reclusion temporal, as maximum. judgment of conviction and he/she shall

Prior to his conviction, he had been serve sentence as any other convicted
person. The court, however, may place
found guilty of vagrancy and
the accused under probation or
imprisoned for ten (10) days of arresto
community service in lieu of
menor and fined fifty pesos (P50.00). Is
imprisonment.
he eligible for probation? Why?

Upon promulgation of the sentence,

Suggested Answer: A is not eligible
the court may, in its discretion, place the
because his conviction exceeds six years.
accused under probation, even if the
Probation does not extend to those sentenced

to serve a maximum term of imprisonment of 5

more than six years. His previous

 sentence provided under this Act is higher
than that provided under existing law on
probation, or impose community service in
lieu of imprisonment.
1.20 The principle enunciated in the
case People vs. Arnel Colinares and now
embodied under R.A.10707 amending the
sound ruling in Francisco. It remains that
those who will appeal from judgments of
conviction, when they have the option to try
for probation, forfeit their right to apply for
that privilege.
In a real sense, the Court's finding that

probation law. Arnel was guilty, not of frustrated homicide,

but only of attempted homicide, is an original
ARNEL COLINARES vs. PEOPLE
conviction that for the first time imposes on
G.R. No. 182748, December 13, 2011
him a probationable penalty. Had the RTC
done him right from the start, it would have
FACTS: Arnel Colinares was found guilty of
found him guilty of the correct offense and
frustrated homicide by the RTC and
imposed on him the right penalty of two years
sentenced him to suffer imprisonment from
and four months maximum. This would have
two years and four months of
afforded Arnel the right to apply for
prision correccional, as minimum, to six years
probation.
and one day of prision mayor, as
maximum. Since the maximum
probationable imprisonment under the law
was only up to six years, Arnel did not qualify
for probation.

ISSUE: Whether or not accused may still

apply for probation.

RULING: Ordinarily, Arnel would no longer

be entitled to apply for probation, he having

appealed from the judgment of the RTC
convicting him for frustrated homicide.

Here, however, Arnel did not appeal

from a judgment that would have allowed

him to apply for probation. He did not have
a choice between appeal and probation. He
was not in a position to say, "By taking this
appeal, I choose not to apply for
probation." The stiff penalty that the trial
court imposed on him denied him that
choice. Thus, a ruling that would allow Arnel
to now seek probation under this Court's
greatly diminished penalty will not dilute the
 The Probation Law never intended to
deny an accused his right to probation
through no fault of his. The underlying
philosophy of probation is one of liberality
towards the accused. Such philosophy is not
an application for probation is filed
but the defendant has earlier
perfected an appeal?
Section 4 of P.D. 968, as amended by R.A.

served by a harsh and stringent interpretation No. 10707 provides that NO application

of the statutory provisions. for probation shall be entertained or

granted if the defendant has perfected

This may be true if the trial court meted
the appeal from the judgment of
out to Arnel a correct judgment of
conviction: Provided, That when a
conviction. Here, however, it convicted Arnel
judgment of conviction imposing a non-
of the wrong crime, frustrated homicide that
carried a penalty in excess of 6 years. How can probationable penalty is appealed or

the Court expect him to feel penitent over a reviewed, and such judgment is modified

crime, which as the Court now finds, he did not
commit? He only committed attempted
homicide with its maximum penalty of 2 years
and 4 months.
through the imposition of a
probationable penalty, the defendant
shall be allowed to apply for probation
based on the modified decision before

At any rate, what is clear is that, had the such decision shall becomes final.

RTC done what was right and imposed on

d. Would the “total prison term” or the
Arnel the correct penalty of two years and four
“maximum prison term” of the
months maximum, he would have had the
sentence be taken into account in
right to apply for probation. No one could say
determining one’s eligibility for
with certainty that he would have availed
probation?
himself of the right had the RTC done right by
him. The idea may not even have crossed his
6
mind precisely since the penalty he got was
not probationable.

c. What does R.A. 10707 provide where

 b. Probation is not applicable when the
accused has been convicted by final
judgment of an offense punished by
imprisonment of less than one (1) month
The law uses the word “maximum
and/or fine of less than P200.00.
term” and not total term. It is enough that

each of the prison term does not exceed 6

years. The number of offenses is immaterial

for as long as the penalties imposed, when

taken individually and separately, are c. Probation is not applicable when accused

within the probationable period. Francisco is convicted of indirect assault. (*Indirect

vs. CA, 243 SCRA 384 assault is a crime against public order)

(2) Convicted Of Any Crime Against d. Probation is not applicable when

National Security or the Public Order. accused is convicted of indirect bribery.

The Crimes against National (3) Who Have Previously Been Convicted

Security are as follows: By Final Judgment Of An Offense Punished

By Imprisonment Of Not Less Than One

a. Treason
Month And One Day And/Or A Fine Of Not

Less Than Two Hundred Pesos.

b. Conspiracy and Proposal to

Commit Treason
Illustrative case

c. Misprision of Treason

BAR Q.[2004] PX was convicted and

sentenced to imprisonment of thirty days

d. Espionage
and a fine of one hundred pesos.

e. Terrorism and Conspiracy to Previously, PX was convicted of another

Commit Terrorism under R.A. 9372 crime for which the penalty imposed on

him was thirty days only. Is PX entitled to

The following are classified as Crimes
probation?
against Public Order:

Suggested Answer: Yes, the

a. Rebellion, Coup d’ etat, Sedition
penalty imposed upon him does not exceed 6
and Disloyalty
years. His previous conviction for another

crime with a penalty of thirty days

b. Crimes against Legislative Bodies

imprisonment or not exceeding one (1) month
and Similar Bodies, Violation Of
Pariliamentary Immunity
d. Assault Upon, and Resistance and
c. Illegal Assemblies and Disobedience to Persons In Authority
Associations and Their Agents
does not disqualify him from applying for Under The Provisions Of This Decree.

probation.
(5) Who Are Already Serving Sentence At

(4) Who Have Been Once On Probation The Time The Substantive Provisions Of
This Decree Became Applicable Pursuant

e. Public Disorders
To Section 33 Hereof.

f. Commission of Another Crime

(6) Who Has Perfected An Appeal From

During Service of Penalty Imposed
The Judgment Of Conviction (Sec.4,
for Another Previous Offense
Probation Law. (*See previous discussion)

BAR Q. [2012] Under which of the

Probation essentially rejects appeals

following circumstances is probation not
and encourages an otherwise eligible convict
applicable?
to immediately admit his liability and save

a. Probation is not applicable when the the state the time, effort and expenses to
accused is sentenced to serve a maximum of jettison an appeal. Sable vs. People 584 SCRA
six (6) years. 619, April 7, 2009

7
 not exceed six years.

1.13 WHAT IS THE CONSEQUENCE IF THE

PROBATIONER VIOLATES ANY OF

(7) Any Person Convicted Of Drug THE CONDITIONS OF PROBATION?
Trafficking or Pushing Regardless of the (SEC. 15)
Penalty Imposed By The Court. (Sec. 24 of
The court may arrest the
R.A. 9165, The Comprehensive Dangerous
probationer, hold an informal summary
Drugs Act Of 2002).
hearing and may revoke his probation in

The Supreme Court had the occasion which case, he has to serve the sentence

to explain this disqualification in Padua vs. originally imposed.

People, 559 SCRA 519, July 23, 2008, where it

1.14 WHEN IS PROBATION DEEMED
states that under Section 24 of Rep. Act No.
TERMINATED? (Sec.16).
9165, any person convicted of drug

trafficking cannot avail of the privilege of

probation. In this case, the convict was

charged and convicted for violation of

Section 5, Article II of Rep. Act No. 9165 for

selling dangerous drugs. It is clear under

Section 24 of Rep. Act No. 9165 that any

person convicted of drug trafficking cannot

avail of the privilege of probation.

1.12 WHAT IS THE PERIOD OF

PROBATION IF- (SEC.14)

a. the convict is sentenced to a term of

imprisonment of not more than one year?

The period of probation shall not

exceed two years.

BAR Q. [2012]The period of probation of

the offender sentenced to a term of one

(1) year shall not exceed

a. two (2) years;

b. six (6) years;
c. one (1) year;
d.three (3) years;

b. the convict is sentenced to a term of

imprisonment of more than one year?

In all other cases, said period shall

 After the period of probation and
1.17 IS A PROBATIONER DISQUALIFIED
upon consideration of the report and
FROM RUNNING FOR A PUBLIC
recommendation of the probation officer, the
OFFICE DURING THE PERIOD OF
court may order the final discharge of the
HIS PROBATION?
probationer upon finding that he has fulfilled
the terms and conditions of his probation
No. In the case of Moren vs. COMELEC
and thereupon the case is deemed
and MEJES, G.R. 168550, August 10, 2006, the
terminated.
Supreme Court emphasized that during the
period of probation, the probationer is not
1.15 WHAT IS THE CONSEQUENCE OF A
disqualified from running for a public office
FINAL DISCHARGE OF THE
because the accessory penalty of suspension
PROBATIONER? (Sec.16).
from public office is put on hold for the
The final discharge of the duration of the probation.
probationer shall operate to restore to him
The Court went on to state the case of
all civil rights lost or suspend as a result of
Baclayo vs. Mutia, 129 SCRA 148, where it
his conviction and to fully discharge his
ruled that an order placing defendant on
liability for any fine imposed as to the offense
probation is not a sentence but is rather in
for which probation was granted.
effect a suspension of imposition of sentence.
1.16 HOW IS PROBATION LAW
The grant of probation to petitioner
CONSTRUED?
suspended the imposition of the principal
It is well-settled that the probation penalty of imprisonment, as well as the
law is not a penal statute; and therefore, the accessory penalties of suspension from
principle of liberal interpretation is public office and from the right to follow the
inapplicable. And when the meaning is profession or calling and that of perpetual
clearly discernible from the language of the
statute, there is no room for construction or 8
interpretation. People vs. Alejandra Pablo,

G.R. No. 12510: August 3, 2000


special disqualification from the right of
suffrage.
1.18 DOES THE GRANT OF PROBATION
AFFECT THE ADMINISTRATIVE
ASPECT OF A CASE?
No. Probation affects only the
criminal aspect of the case, not its
administrative dimension. Samalio vs Court
of Appeals, 454 SCRA 462
1.19 CAN THE PERIOD WITHIN WHICH A
PERSON IS UNDER PROBATION BE
EQUATED WITH SERVICE OF
SENTENCE ADJUDGED?
No. The period within which a person
is under probation cannot be equated with
service of sentence adjudged.
Section 4 of the Probation Law
specifically provides that in the grant of
probation, the probationer does not serve
the penalty imposed upon him by the court
but is merely required to comply with all the
conditions prescribed by the probation
order. Moren vs. Comelec and Mejes, G.R.
168550, August 10, 2006
-ooo000ooo-
CHAPTER II. INDETERMINATE SENTENCE
LAW
ACT NO. 4103
as amended by Act No. 4225 and
and excessive jurisdiction of personal liberty
and economic usefulness;
2) It is intended to favor the accused
particularly to shorten his term of
imprisonment, depending upon his behavior
and his physical, mental and moral record as
a prisoner to be determined by the Board of
Sentence.
1.01 IF A SPECIAL LAW ADOPTS
PENALTIES UNDER THE REVISED
PENAL CODE, WILL THE
INDETERMINATE SENTENCE LAW
APPLY JUST AS IT WOULD IN
FELONIES?
Yes, where the special law adopted
penalties from the Revised Penal Code, the
Indeterminate Sentence Law will apply just
as it would in felonies.
The Supreme Court in Sanchez vs.
People 588 SCRA 747, June 5, 2009, stressed
that although Republic Act No. 7610 is a
special law, the rules in the Revised Penal
Code for graduating penalties by degrees or
determining the proper period should be
applied.
The penalty for Other Acts of Child
Abuse is prision mayor in its minimum
period. This penalty is derived from, and
Republic Act No. 4203
[BAR Q. 2014, 2010, 2009, 2007, 2005,
2003, 2002, 1999, 1994, 1991, 1990,
1989, 1988]
 defined in, the Revised Penal Code. Although
____________________________________________
_______ R.A. No. 7610 is a special law, the rules in the

Revised Penal Code for graduating penalties

A. IN GENERAL
by degrees or determining the proper period

should be applied.

1.02 UNDER WHAT CIRCUMSTANCES IS

THE INDETERMINATE SENTENCE

LAW NOT APPLICABLE (SEC. 2)?

[*BAR Q: State the application of the

Indeterminate Sentence Law/ BAR Q:

Under what circumstances is the

Indeterminate Sentence Law not

1.00 CITE THE PURPOSES OF THE

applicable?]
INDETERMINATE SENTENCE LAW.

PURSUANT TO SECTION 2 OF THE

The purposes of Indeterminate

INDETERMINATE SENTENCE LAW, IT
Sentence Law are as follow:
SHALL NOT BE APPLICABLE IN THE

1) To uplift and redeem valuable FOLLOWING CASES:

human material and prevent unnecessary

9
 No, it is deemed included in the

disqualification. The Indeterminate

Sentence Law does not apply to persons

1. Offenses punishable by death convicted of offenses punishable with

or life imprisonment. Reclusion Perpetua. People vs. Lab-eo, 373

SCRA 461
2. Those convicted of treason,

conspiracy or proposal to The Court has equated the penalty

commit treason. of reclusion perpetua as synonymous to life

imprisonment for purposes of the

3. Those convicted of misprision
Indeterminate Sentence Law. People vs.
of treason, rebellion, sedition
Enriquez G.R. No. 158797 July 29, 2005
or espionage.

4. Those convicted of piracy.

5. Habitual delinquents.

6. Those who escaped from

confinement or those who

evaded sentence.

7. Those granted with

conditional pardon and who

violated the terms of the

same.

8. Those whose maximum

period of imprisonment does

not exceed one year.

9. Those already serving final

judgment upon the approval

of this act.

1.03 EXPLAIN AND ILUSTRATE THE

CIRCUMSTANCES WHEN THE

INDETERMINATE SENTENCE LAW

IS NOT APPLICABLE.

1. Offenses Punishable By Death Or Life

Imprisonment.

a. May a person punished with reclusion

perpetua be entitled to the benefits of

ISLAW?
 b. Query: May the privileged mitigating punished by prision correccional and a
circumstance of minority be appreciated in fine not exceeding P5,000.00. Is the
fixing the penalty that should be imposed
Indeterminate Sentence Law applicable
even if the penalty imposed is originally an
to AA?
indivisible penalty?
a. Yes. The Indeterminate Sentence Law is
Yes. The ISLAW is applicable because
applicable to AA because the maximum
the penalty which has been originally an
of prision correccional exceeds one (1)
indivisible penalty (reclusion perpetua to
year.
death), where ISLAW is inapplicable, became
a divisible penalty (reclusion temporal) by b. Yes. The Indeterminate Sentence Law is
virtue of the presence of the privileged applicable to AA because there is no
mitigating circumstance of minority. People
showing that he is a habitual delinquent.
vs. Allen Udtojan Mantalaba, G.R. No. 186227:
July 20, 2011 c. No. The Indeterminate Sentence Law is

not applicable to AA considering the

2. Those Convicted of Treason,
penalty imposable for the offense of
Conspiracy or Proposal to Commit
which he was convicted.
Treason.
d. No. The Indeterminate Sentence Law is
a. TREASON
not applicable considering the offense of
b. CONSPIRACY TO COMMIT which he was convicted (*The crime for
TREASON. which AA was convicted is proposal to

commit treason).
Illustrative Case

3. Habitual Delinquents.
BAR Q.[2012] AA was convicted of

proposal to commit treason. Under 10

Article 115 of the Revised Penal Code,

proposal to commit treason shall be

 imprisonment is less than 1 year?

The Indeterminate Sentence Law

does not apply if the maximum term of

Who is a Habitual
imprisonment does not exceed one year if
Delinquent?
the trial court opts to impose penalty of

He is a person who within a period imprisonment less than one year, it should

of ten (10) years from the date of his release not impose indeterminate penalty but

or last conviction of the crimes of serious, straight penalty of one year or less instead.

less serious physical injuries, robbery, theft,

An indeterminate sentence
estafa or falsification, he is found guilty of
may be imposed if the minimum of the
any of said crimes a third time or oftener
penalty is one year or less, and the
(Article 62 of the Revised Penal Code as

amended).

Illustrative case

4. Those Who Escaped From

Confinement or Those Who Evaded

Sentence.

[BAR Q.] A convict serving sentence for

robbery escaped from the penitentiary

and killed a rival gang member. Found

guilty of homicide, he was given a straight

prison term. He moved for

reconsideration, contending that not

being a habitual delinquent, he was

entitled to an indeterminate sentence.

Decide with reasons.

Suggested Answer: Motion for

reconsideration is denied. While it may true

that A is not be a habitual delinquent, he

however, escaped from prison while serving

sentence. The Indeterminate Sentence Law

provides that it shall not apply to persons who

escaped from confinement or evaded his

sentence.

5. Those Whose Maximum Period of

Imprisonment Does Not Exceed One Year.

a. Can an indeterminate sentence be

imposed if the maximum term of

 maximum exceeds one year. People vs. Lapis, imprisonment until the end of the maximum.
391 SCRA 131
4) The need for specifying the

1.04 WHAT ARE THE REASONS WHY THE
MAXIMUM AND THE MINIMUM
TERM OF THE INDETERMINATE
SENTENCE HAVE TO BE FIXED BY
THE COURT?
minimum and maximum periods of the
indeterminate sentence is to prevent the
unnecessary and excessive deprivation of
liberty and to enhance the economic
usefulness of the accused, since he may be

exempted from serving the entire sentence,

The maximum and minimum term of
depending upon his behavior and his
the sentence have to be fixed because of the

following reasons: 11

1) Whenever any prisoner shall have

served the minimum penalty imposed on

him, and it shall appear to the Board of

Indeterminate Sentence that such prisoner is

fitted by his training for release that there is

a reasonable probability that such prisoner

will live and remain at liberty without

violating the law, and that such release will

not be incompatible with the welfare of

society, said Board may authorize the release

of such prisoner on parole, upon such terms

and conditions as may be presented by the

Board;

2) Whenever any prisoner released

on parole shall, during the period of

surveillance, violate any of the conditions of

his parole, the Board of Indeterminate

Sentence may issue an order for his re-

arrest. In such case the prisoner so re-

arrested shall serve the remaining

unexpired portion of the maximum portion

of the maximum sentence for which he was

originally committed to prison, unless the

Board of indeterminate Sentence shall, in its

discretion, grant a new parole to the said

prisoner.

3) Even if a prisoner has already

served the minimum, but he is not fitted for

release on parole, he shall continue to serve