Indeterminate Sentence Law reviewer

Act No. 4013 (Indeterminate Sentence Law), as amended

Three things to know about the Indeterminate Sentence Law:

(1) Its purpose;

(2) Instances when it does not apply; and

(3) How it operates

Indeterminate Sentence Law governs whether the crime is punishable under the Revised Penal Code or a special
Law. It is not limited to violations of the Revised Penal Code.

It applies only when the penalty served is imprisonment. If not by imprisonment, then it does not apply.

Purpose

The purpose of the Indeterminate Sentence law is to avoid prolonged imprisonment, because it is proven to be more
destructive than constructive to the offender. So, the purpose of the Indeterminate Sentence Law in shortening the
possible detention of the convict in jail is to save valuable human resources. In other words, if the valuable human
resources were allowed prolonged confinement in jail, they would deteriorate. Purpose is to preserve economic
usefulness for these people for having committed a crime -- to reform them rather than to deteriorate them and, at the
same time, saving the government expenses of maintaining the convicts on a prolonged confinement in jail.

If the crime is a violation of the Revised Penal Code, the court will impose a sentence that has a minimum and
maximum. The maximum of the indeterminate sentence will be arrived at by taking into account the attendant
mitigating and/or aggravating circumstances according to Article 64 of the Revised Penal Code. In arriving at the
minimum of the indeterminate sentence, the court will take into account the penalty prescribed for the crime and go one
degree lower. Within the range of one degree lower, the court will fix the minimum for the indeterminate sentence, and
within the range of the penalty arrived at as the maximum in the indeterminate sentence, the court will fix the maximum
of the sentence. If there is a privilege mitigating circumstance which has been taken in consideration in fixing the
maximum of the indeterminate sentence, the minimum shall be based on the penalty as reduced by the privilege
mitigating circumstance within the range of the penalty next lower in degree.

If the crime is a violation of a special law, in fixing the maximum of the indeterminate sentence, the court will impose the
penalty within the range of the penalty prescribed by the special law, as long as it will not exceed the limit of the
penalty. In fixing the minimum, the court can fix a penalty anywhere within the range of penalty prescribed by the
special law, as long as it will not be less than the minimum limit of the penalty under said law. No mitigating and
aggravating circumstances are taken into account.

The minimum and the maximum referred to in the Indeterminate Sentence Law are not periods. So, do not say,
maximum or minimum period. For the purposes of the indeterminate Sentence Law, use the term minimum to refer to
the duration of the sentence which the convict shall serve as a minimum, and when we say maximum, for purposes of
ISLAW, we refer to the maximum limit of the duration that the convict may be held in jail. We are not referring to any
period of the penalty as enumerated in Article 71.
Courts are required to fix a minimum and a maximum of the sentence that they are to impose upon an offender when
found guilty of the crime charged. So, whenever the Indeterminate Sentence Law is applicable, there is always a
minimum and maximum of the sentence that the convict shall serve. If the crime is punished by the Revised Penal
Code, the law provides that the maximum shall be arrived at by considering the mitigating and aggravating
circumstances in the commission of the crime according to the proper rules of the Revised Penal Code. To fix the
maximum, consider the mitigating and aggravating circumstances according to the rules found in Article 64. This
means –

(1) Penalties prescribed by the law for the crime committed shall be imposed in the medium period if no mitigating
or aggravating circumstance;

(2) If there is aggravating circumstance, no mitigating, penalty shall be imposed in the maximum;

(3) If there is mitigating circumstance, no aggravating, penalty shall be in the minimum;

(4) If there are several mitigating and aggravating circumstances, they shall offset against each other. Whatever
remains, apply the rules.

(5) If there are two or more mitigating circumstance and no aggravating circumstance, penalty next lower in degree
shall be the one imposed.

Rule under Art 64 shall apply in determining the maximum but not in determining the minimum.

In determining the applicable penalty according to the Indeterminate Sentence Law, there is no need to mention the
number of years, months and days; it is enough that the name of the penalty is mentioned while the Indeterminate
Sentence Law is applied. To fix the minimum and the maximum of the sentence, penalty under the Revised Penal
Code is not the penalty to be imposed by court because the court must apply the Indeterminate Sentence Law. The
attendant mitigating and/or aggravating circumstances in the commission of the crime are taken into consideration only
when the maximum of the penalty is to be fixed. But in so far as the minimum is concerned, the basis of the penalty
prescribed by the Revised Penal Code, and go one degree lower than that. But penalty one degree lower shall be
applied in the same manner that the maximum is also fixed based only on ordinary mitigating circumstances. This is
true only if the mitigating circumstance taken into account is only an ordinary mitigating circumstance. If the mitigating
circumstance is privileged, you cannot follow the law in so far as fixing the minimum of the indeterminate sentence is
concerned; otherwise, it may happen that the maximum of the indeterminate sentence is lower than its minimum.

In one Supreme Court ruling, it was held that for purposes of applying the Indeterminate Sentence Law, the penalty
prescribed by the Revised Penal Code and not that which may be imposed by court. This ruling, however, is obviously
erroneous. This is so because such an interpretation runs contrary to the rule of pro reo, which provides that the penal
laws should always be construed an applied in a manner liberal or lenient to the offender. Therefore, the rule is, in
applying the Indeterminate Sentence Law, it is that penalty arrived at by the court after applying the mitigating and
aggravating circumstances that should be the basis.

Crimes punished under special law carry only one penalty; there are no degree or periods. Moreover, crimes under
special law do not consider mitigating or aggravating circumstance present in the commission of the crime. So in the
case of statutory offense, no mitigating and no aggravating circumstances will be taken into account. Just the same,
courts are required in imposing the penalty upon the offender to fix a minimum that the convict should serve, and to set
a maximum as the limit of that sentence. Under the law, when the crime is punished under a special law, the court may
fix any penalty as the maximum without exceeding the penalty prescribed by special law for the crime committed. In
the same manner, courts are given discretion to fix a minimum anywhere within the range of the penalty prescribed by
special law, as long as it will not be lower than the penalty prescribed.

Disqualification may be divided into three, according to –

(1) The time committed;

(2) The penalty imposed; and

(3) The offender involved.

The Indeterminate Sentence Law shall not apply to:

(1) Persons convicted of offense punishable with death penalty or life imprisonment;

(2) Persons convicted of treason, conspiracy or proposal to commit treason;

(3) Persons convicted of misprision of treason, rebellion, sedition, espionage;

(4) Persons convicted of piracy;

(5) Persons who are habitual delinquents;

(6) Persons who shall have escaped from confinement or evaded sentence;

(7) Those who have been granted conditional pardon by the Chief Executive and shall have violated the term
thereto;

(8) Those whose maximum term of imprisonment does not exceed one year, but not to those already sentenced
by final judgment at the time of the approval of Indeterminate Sentence Law.

Although the penalty prescribed for the felony committed is death or reclusion perpetua, if after considering the
attendant circumstances, the imposable penalty is reclusion temporal or less, the Indeterminate Sentence Law applies
(People v. Cempron, 187 SCRA 278).

The purpose of the law is to uplift and redeem valuable human material and prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness. (People v. Onate, 78 SCRA 43) As a rule, 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 Indeterminate Sentence.
Indeterminate sentence is a sentence with a minimum term and a maximum benefit of a guilty person, who is not
disqualified therefore, when the maximum penalty of imprisonment exceeds one year. It applies to both violations of
the RPC and special laws.

COVERAGE:

1. Revised Penal Code

The court shall sentence the accused to an indeterminate sentence the MAXIMUM TERM of which shall be
that which, in view of the attending circumstances, could be properly imposed under the Code, and the MINIMUM
TERM which shall be within the range of the penalty next lower in degree to that prescribed by the Code for the
offense.

The maximum is the penalty imposed as provided by law, depending upon the attending circumstances. The minimum
is one degree next lower to the penalty prescribed for the offense. The latter is determined without considering the
attending circumstances to the penalty prescribed, and is left to the discretion of the court. (People v. Yco, 6545, July
27, 1954)

Example: Homicide with one mitigating circumstance. The maximum penalty prescribed by law is Reclusion
temporal. Since there is one mitigating and no aggravating it will be in the minimum or reclusion temporal minimum
period. On the other hand, the minimum is one degree next lower to reclusion temporal without considering the
mitigating circumstance and that will be prision mayor. The range of prision mayor will depend upon the discretion of
the court. Therefore, the indeterminate penalty is a minimum of prision mayor (within the range fixed by the court) to a
maximum of reclusion temporal minimum period.

2. Special Law

The court shall sentence the accused to an indeterminate sentence, the MAXIMUM TERM of which shall not exceed
the maximum fixed by said law and the minimum shall not be less than the MINIMUM TERM prescribed by the
same. (Q11, 1994 Bar)

Example: Penalty is one year to 5 years. Indeterminate sentence may be one year to 3 years or 3 years to 5 years.

This act shall not apply to persons:

1. Convicted of offenses punished with death or life imprisonment. (Q12, 1990 Bar)

2. Those convicted of treason, conspiracy or proposal to commit treason, misprision of treason, rebellion, sedition or
espionage, or piracy.

3. Those who are habitual delinquents.

Recidivists are entitled to an indeterminate sentence. (People v. Jaranilla, 28547, Feb. 22, 1974)

4. Those who shall have escaped from confinement or evaded sentence.

A minor who escaped from confinement in the reformatory is entitled to the benefits of the law because confinement is
not considered imprisonment. (People v. Perez, 44 OG 3884) (Q6, 1991 Bar)

5. Those who having been granted conditional pardon by the President shall have violated the terms thereof.

6. Those whose maximum period of imprisonment does not exceed one year. (Q8, 1999 Bar)

The application of which is based upon the penalty actually imposed in accordance with law. (People v. Hidalgo, 452,
Jan. 22, 1962)

7. Those already serving final judgment upon the approval of this Act (December 5, 1933).

8. Those sentenced to the penalty of destierro or suspension. (Q12, 1999 Bar)

Whenever any prisoner who shall have served the minimum penalty imposed on him, said Board of Indeterminate
Sentence may, in its discretion, and in accordance with the rules and regulations adopted thereunder, authorize the
release of such prisoner on parole. If during the period of surveillance, such parolee shall show himself to be a
law-abiding citizen and shall not violate any of the laws of the Philippines, the Board may issue a final certificate of
release in his favor. Whenever any prisoner released on parole shall, during the period of surveillance, violate any
of the conditions of his parole, the Board may issue an order for his re-arrest and shall serve the remaining unexpired
portion of the maximum sentence.

The application of the Indeterminate Sentence Law is mandatory if the imprisonment would exceed one year. It would
be favorable to the accused. (People v. Judge German Lee, Jr., 86859, Sept. 12, 1984)

Indeterminate 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

Indeterminate Sentence Law

This law is related to the probation law.

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.

The indeterminate sentence law is an old law, dating back to the American period -as can be seen from its number: Act
4103 as amended by Act 4225. It's "Act," not RA or CA. It affects all criminal laws, whether from the Revised Penal
Code or not so long as they don't fall into the instances enumerated by the indeterminate sentence law itself. Those
instances are:

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 -they're not the same as habitual
offenders)
6.) Those who escaped from confinement/service or sentence
7.) Those who were granted conditional pardon but violated the terms of the pardon
8.) In case the 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)

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 imposed by the court,
depending on the law in question. There are 2 possible scenarios:

1.) If the law is part 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 circumstances. The minimum penalty will be put within the range of the penalty next lower than what the
Revised Penal Code has prescribed. In case of a complex crime (i.e. when a single act produces 2 or more crimes,)
the full range of the penalty next lower in degree will be considered in determining the minimum penalty.

2.) If the law in question is a special 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.

The Indeterminate Sentence Law applies to both violations of Revised

Penal Code and special laws, and is based on the penalty actually
imposed.

The Indeterminate Sentence Law shall not apply to the

following persons.
1. Those sentenced to death penalty or life imprisonment
2. Those convicted of treason, or conspiracy or proposal to
commit treason
3. Those convicted of misprision of treason, rebellion, sedition
or espionage
4. Those convicted of piracy
5. Those who are habitual delinquents
6. Those who have escaped from confinement, or evaded sentence
7. Those granted with conditional pardon by the President, but
 violated the terms thereof
8. Those whose maximum term of imprisonment does not exceed 1 year
9. Those who are sentenced to the penalty of destierro or
suspension only

Indeterminate sentence is mandatory where imprisonment would exceed

one year.

IF THE PENALTY IS IMPOSED BY THE RPC:

1. The Maximum Term – is that which could be properly imposed under
the RPC, considering the aggravating and mitigating circumstances.
2. The Minimum Term – is within the range of the penalty one degree
lower than that prescribed by the RPC, without considering the
circumstances.

BUT when there is a privileged mitigating circumstance, so

that the penalty has to be lowered by one degree, the STARTING
POINT for determining the minimum term of the indeterminate
penalty is the penalty next lower than that prescribed by the
Code for the offense.

IF THE PENALTY IS IMPOSED BY SPECIAL PENAL LAW

1. The Maximum Term – must not exceed the maximum term fixed by
said law.
2. The Minimum Term – must not be less than the minimum term prescribed
by the same.

For SPECIAL LAWS, it is anything within the inclusive range of

the prescribed penalty. Courts are given discretion in the
imposition of the indeterminate penalty. The aggravating and
mitigating circumstances are not considered unless the special
law adopts the same terminology for penalties as those used in
the RPC (such as reclusión perpetua and the like).

RELEASE OF THE PRISONER ON PAROLE

The Board of Pardons and Parole may authorize the release of a
prisoner on parole, after he shall have served the minimum penalty
imposed on him, provided that:
1. Such prisoner is fitted by his training for release,
2. There is reasonable probability that he will live and remain at
liberty without violating the law,
3. Such release will not be incompatible with the welfare of society.

ENTITLEMENT TO FINAL RELEASE AND DISCHARGE

If during the period of surveillance such paroled prisoner shall:
(a) show himself to be a law abiding citizen and,
(b) shall not violate any law,
the Board may issue a final certification in his favor, for his final
release and discharge.

SANCTION FOR VIOLATION OF CONDITIONS OF THE PAROLE

When the paroled prisoner shall violate any of the conditions of
his parole:
(a) the Board may issue an order for his arrest, and thereafter,
(b) the prisoner shall serve the remaining unexpired portion of the
maximum sentence for which he was originally committed to prison.

REASONS FOR FIXING THE MAXIMUM AND MINIMUM TERMS IN THE

INDETERMINATE SENTENCE
The minimum and maximum terms in the Indeterminate Sentence must be
fixed, because they are the basis for the following:
1. Whenever a prisoner has:
 (a) served the MINIMUM penalty imposed on him, and
(b) is fit for release of the prisoner on parole, upon terms and
conditions prescribed by the Board.
2. But when the paroled prisoner violates any of the conditions of
his parole during the period of surveillance, he may be rearrested
to serve the remaining unexpired portion of the MAXIMUM sentence.
3. Even if a prisoner has already served the MINIMUM, but he is not
fitted for release on the parole, he shall continue to serve until
the end of the MAXIMUM term.

Why is Indeterminate Sentence LAW 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.

Purpose of the law:

- to uplift and redeem valuable human material and prevent
unnecessary and excessive deprivation of liberty and economic
usefulness
- It is necessary to consider the criminal first as an individual,
and second as a member of the society.
- The law is intended to favor the defendant, 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 Indeterminate Sentence.

The settled practice is to give the accused the benefit of the law
even in crimes punishable with death or life imprisonment provided
the resulting penalty, after considering the attending
circumstances, is reclusion temporal or less.

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.

Some More Illustrations:

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

Example:

People v. Campuhan
The penalty for attempted rape is two (2) degrees lower than the
imposable penalty of death for the offense charged, which is
statutory rape of a minor below seven (7) years. Two (2) degrees
lower is reclusion temporal, the range of which is twelve (12)
years and one (1) day to twenty (20) years. Applying the
 Indeterminate Sentence Law, and in the absence of any mitigating
or aggravating circumstance, the maximum of the penalty to be
imposed upon the accused shall be taken from the medium period of
reclusion temporal, the range of which is fourteen (14) years, eight
(8) months and (1) day to seventeen (17) years and four (4) months,
while the minimum shall be taken from the penalty next lower in
degree, which is prision mayor, the range of which is from six (6)
years and one (1) day to twelve (12) years, in any of its periods.

PENALTIES UNDER THE RPC, INDETERMINATE SENTENCE LAW and the PROBATION LAW

PENALTIES UNDER THE REVISED PENAL CODE

(and the Indeterminate Sentence Law and the Probation Law)

READ ARTICLES 21 TO 88 BUT SKIP ARTICLE 48 – include RA 9346, Indeterminate Sentence Law, Probation Law

1. People vs. De la Cruz, No. L-45485, September 19, 1978, 85 SCRA 285 – life imprisonment vs. reclusion
perpetua

2. PEOPLE vs. LUCAS (GR.. 108172-73, May 25, 1994, 232 SCRA 537) – indivisibility of reclusion perpetua as
a penalty

3. Bayot vs. Sandiganbayan, GR L-61776 to L-61891, Mar 23’84 – retroactive application of preventive
suspension

4. People vs. Larry Mahinay (GR 122485, Feb 1’99) wherein the accused was charged of rape with homicide
which has a single penalty of death under Art 335. Note that under the 2000 Rules on Criminal Procedure, aggravating
& qualifying circumstances are now required to be alleged in the Information, otherwise they are not considered in
raising the penalty.

5. PEOPLE vs. AVECILLA (GR No. 117033, Feb. 15, 2001)

6. RA 9346

7. PEOPLE vs. ALFREDO BON (G.R. No. 166401, October 30, 2006)

8. Indeterminate Sentence Law

· People vs. Martin Simon, please check citation, its a 1990’s case

· People vs. Lampaza, 319 SCRA 422

· People v. Gonzales (73 PHIL 549)

9. Probation Law

· Soriano vs. CA, 304 SCRA; GR 123936; March 4, 1999

· Pablo Francisco vs. Court of Appeals, et. al., [243 SCRA 348; April 6, 1995; G.R. No. 108747)

· Pablo vs. Judge Castillo, August 3, 2000

SUMMARY OF RULES FOR SUSPENSION OF SENTENCE AND PROBATION OF MINOR OFFENDERS (RA’s 9344,
9165, PD 603 and the Probation Law)

1. Under Sec 38, RA 9344, sentences are automatically suspended (no need for Motion). If a child is more than 18
at the time of promulgation, his sentence may still be suspended provided he is not yet 21 years of age. But
in Declarator vs. Gubaton (GR 159208, August 2006), SC held that if the penalty is RP, D or LI, his sentence shall not
be suspended pursuant to Art 192, PD 603, which is still in force and effect.

2. Under Section 66, RA 9165, the sentence of a child over 15 at the time of commission but not more than 18 at
the time of promulgation may be suspended. But the child should not have been convicted of any offense under the
RPC or special laws. He shall be under the DDB’s supervision for a term within 6 to 18 months.

· Said provision does not distinguish nor disqualify offenders penalized by RP, LI or D

3. Child offenders are always qualified to avail of probation: Under the probation law, offenses with penalties
exceeding 6 years are not probationable.

· However, under Sec 42, RA 9344, a child who is convicted is always eligible for probation regardless of the
penalty

· Sec 70, RA 9165 also provides for the probation of first time minor offenders, regardless of the penalty. But RA
9165 provides that probation shall not be allowed if the accused is convicted of drug trafficking. This applies to minor
offenders

4. Note that under Sec 98, RA 9165, penalty of LI to D shall be considered as RP to D. This is intended to allow
minors to avail of the PMC of minority, under the Graduated Scales in Art 71 RPC. By analogy, this may also apply if
the penalty is LI.

ADDITIONAL NOTE FOR THE PROBATION LAW:

1. Sec 70 of RA 9165 (Comprehensive Dangerous Drugs Law of 2002) allows the grant of probation even if the
accused is convicted of a penalty exceeding 6 years, provided he is a first time minor offender.

IMPLICATION: A minor, first time offender can apply for probation in addition to a suspended sentence, even if his
penalty is above 6 years..

1. Sec 98 provides: “Notwithstanding any law, rule or regulation to the contrary, the provisions of the RPC, as
amended, shall not apply to the provisions of this Act, except in the case of minor offenders. While the offender
is a minor, the penalty for acts punishable by life imprisonment to death shall be reclusion perpetua to death.

RA 9165 does not follow the technical nomenclature of penalties under the RPC, thus, the penalty for possession of
shabu above 50 grams shall be life imprisonment to death and possession of 10 grams to 50 grams thereof is
punishable by life imprisonment.

IMPLICATIONS: The Revised Penal Code shall apply to a minor whose acts are penalized by life imprisonment to
death such that if he is caught in possession of shabu exceeding 50 grams, his penalty shall be reclusion perpetua to
death. Thus, he can avail of the benefits of a privilege mitigating circumstance under Art 68 and quite possibly the
indeterminate sentence law.

Consider a case of two minors, both 14 years of age. A is caught in possession of 11 grams of shabu while B is caught
with 60 grams of shabu.

What are the benefits available to A?

A can avail of the benefit of a suspended sentence pursuant to Sec 66 of RA 9165. He can also apply for probation
provided he is a first time offender. But if his application for probation is not granted, then he shall suffer the penalty of
life imprisonment. He is not entitled to a privilege mitigating circumstance because Art 68 of the RPC only applies if the
penalty follows the technical nomenclature of the RPC (i.e. reclusion perpetua, reclusion temporal, prison mayor etc)

But what are the benefits available to B?

Aside from a possible suspended sentence and probation, B is entitled to a privilege mitigating circumstance that could
lower his penalty by two degrees. Since he is liable for reclusion perpetua to death and he is 14 years old, his penalty
can be lowered by two degrees, or prision mayor, albeit the fact that he was caught in possession of a larger amount of
shabu. This being the case, he is also entitled to an indeterminate penalty with a minimum term of anywhere within the
range of prision correccional. Thus, theoretically, B is eligible for parole after only 6 months and 1 day of
imprisonment.

INDETERMINATE SENTENCE LAW

(Act No. 4103, as amended, Dec. 5, 1933)

The purpose of the law is to uplift and redeem valuable human material and prevent unnecessary and excessive
deprivation of personal liberty and economic usefulness. (People v. Onate, 78 SCRA 43) As a rule, 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 Indeterminate Sentence.

Indeterminate sentence is a sentence with a minimum term and a maximum benefit of a guilty person, who is not
disqualified therefore, when the maximum penalty of imprisonment exceeds one year. It applies to both violations of the
RPC and special laws.

COVERAGE:

1. Revised Penal Code

The court shall sentence the accused to an indeterminate sentence the MAXIMUM TERM of which
shall be that which, in view of the attending circumstances, could be properly imposed under the Code, and the
MINIMUM TERM which shall be within the range of the penalty next lower in degree to that prescribed by the
Code for the offense.

The maximum is the penalty imposed as provided by law, depending upon the attending circumstances. The minimum
is one degree next lower to the penalty prescribed for the offense. The latter is determined without considering the
attending circumstances to the penalty prescribed, and is left to the discretion of the court. (People v. Yco, 6545, July 27,
1954)

Example: Homicide with one mitigating circumstance. The maximum penalty prescribed by law is Reclusion
temporal. Since there is one mitigating and no aggravating it will be in the minimum or reclusion temporal minimum
period. On the other hand, the minimum is one degree next lower to reclusion temporal without considering the
mitigating circumstance and that will be prision mayor. The range of prision mayor will depend upon the discretion of
the court. Therefore, the indeterminate penalty is a minimum of prision mayor (within the range fixed by the court) to a
maximum of reclusion temporal minimum period.

2. Special Law

The court shall sentence the accused to an indeterminate sentence, the MAXIMUM TERM of which shall not
exceed the maximum fixed by said law and the minimum shall not be less than the MINIMUM
TERM prescribed by the same. (Q11, 1994 Bar)

Example: Penalty is one year to 5 years. Indeterminate sentence may be one year to 3 years or 3 years to 5 years.

This act shall not apply to persons:

1. Convicted of offenses punished with death or life imprisonment. (Q12, 1990 Bar)
2. Those convicted of treason, conspiracy or proposal to commit treason, misprision of treason, rebellion, sedition or
espionage, or piracy.

3. Those who are habitual delinquents.

Recidivists are entitled to an indeterminate sentence. (People v. Jaranilla, 28547, Feb. 22, 1974)

4. Those who shall have escaped from confinement or evaded sentence.

A minor who escaped from confinement in the reformatory is entitled to the benefits of the law because confinement is
not considered imprisonment. (People v. Perez, 44 OG 3884) (Q6, 1991 Bar)

5. Those who having been granted conditional pardon by the President shall have violated the terms thereof.

6. Those whose maximum period of imprisonment does not exceed one year. (Q8, 1999 Bar)

The application of which is based upon the penalty actually imposed in accordance with law. (People v. Hidalgo, 452,
Jan. 22, 1962)

7. Those already serving final judgment upon the approval of this Act (December 5, 1933).

8. Those sentenced to the penalty of destierro or suspension. (Q12, 1999 Bar)

Whenever any prisoner who shall have served the minimum penalty imposed on him, said Board of Indeterminate
Sentence may, in its discretion, and in accordance with the rules and regulations adopted thereunder, authorize the
release of such prisoner on parole. If during the period of surveillance, such parolee shall show himself to be a
law-abiding citizen and shall not violate any of the laws of the Philippines, the Board may issue a final certificate of
release in his favor. Whenever any prisoner released on parole shall, during the period of surveillance, violate any of
the conditions of his parole, the Board may issue an order for his re-arrest and shall serve the remaining unexpired
portion of the maximum sentence.

The application of the Indeterminate Sentence Law is mandatory if the imprisonment would exceed one year. It would
be favorable to the accused. (People v. Judge German Lee, Jr., 86859, Sept. 12, 1984)

PROBATION LAW

(PD 968, as amended, July 24, 1976)

Probation is a disposition, under which a defendant after conviction and sentence, is released subject to the conditions
imposed by the Court and to the supervision of a probation officer.

The purpose of the law are:

1. Promote the correction and rehabilitation by providing the offender with individualized treatment.

2. Provide an opportunity for the reformation of an offender which might be less probable if he were to serve a prison
sentence.

3. Prevent the commission of offenses.

The trial court may, after it shall have convicted and sentenced a defendant, and upon application by said defendant
within the period for perfecting an appeal, suspend the
execution of the sentence and place the defendant on probation. No application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment of conviction. (PD 1990) In other
words, the filing of the application for probation is considered as a waiver of the right of the accused to appeal. (Q9, 1992
Bar)
An application for probation shall be filed with the trial court. The filing of the application shall be deemed a waiver of the
right to appeal. An order granting or denying probation shall not be appealable. However, an outright denial by the
court is a nullity correctible by certiorari. (De Luna v. Hon. Medina, CA 78 OG 599) An accused must fall within any one
of the disqualification in order to be denied probation. (Balleta v. Leviste, 92 SCRA 719) (Q13, 1991 Bar)

The disqualified offenders are:

1. Sentenced to serve a maximum term of imprisonment of more than 6 years.

A penalty of six years and one day is not entitled to the benefits of the law. (Q3, 1995 Bar; Q12, 1990 Bar) In Francisco
v. CA, 243 SCRA 384, the Supreme Court held that in case of one decision imposing multiple prison terms, the totality of
the prison terms should not be taken into account for the purposes of determining the eligibility of the accused for the
probation. The law uses the word “maximum 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 within the probationable period. (Q9, 1997 Bar)

2. Convicted of any crime against the national security (treason, espionage, piracy, etc.) or the public order (rebellion,
sedition, direct assault, resistance, etc.).

3. Who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one
month and one day and/or a fine of not less than P 200. (Q2, 1993 Bar)

4. Who have been once on probation.

5. Who are already serving sentence at the time of the effectivity of the Decree.

Except for the reasons specified by the law, a trial court should not deny a petition for probation, especially when the
probation officer has favorably recommended the grant of probation.

Even if at the time of conviction the accused was qualified for probation but at the time of his application for probation, he
is no longer qualified, he is not entitled to probation. The qualification for probation must be determined as of the time
the application is filed in court. (Bernardo v. Judge Balagot, 86561, Nov. 10, 1992) Supposing, an accused was
convicted of a crime for which he was sentenced to a maximum sentence of 10 years. While affirming the judgment of
conviction, the appellate court reduced the penalty to a maximum of 4 years and 4 months taking into consideration
certain modifying circumstances. The accused now applies for probation. In this case, the accused is not entitled to
probation. The law and jurisprudence are to the effect that appeal by the accused from a sentence of conviction forfeits
his right to probation. (Bernardo v. Balagot, supra; Francisco v. CA; De la Cruz v. Judge Callejo) (Q3, 1995 Bar; Q17,
1994 Bar)

The probationer shall:

1. Present himself to the probation officer within 72 hours from receipt of probation order.

2. Report himself to the probation officer at least once a month during the period of probation.

The court, after considering the nature and seriousness of the violations of probation (if any), may issue a warrant for the
arrest of the probationer. He is then brought to the court immediately for hearing, which is summary. If violation is
established, the Court may revoke or continue the probation and modify the conditions thereof. If revoked, the
probationer shall be ordered to serve the sentence originally imposed and shall commit the probationer. The order of
the court is not appealable.

A final discharge of probation shall operate to restore to the probationer all civil rights lost or suspended as a result of the
conviction and to full discharge of his liability for any fine imposed. Under the Probation Law what is suspended is the
execution of the sentence, while under PD 603, as amended, what is suspended is the pronouncement of the sentence
upon request of the youthful offender. The suspension of the sentence, however, has no bearing on the civil liability,
which is separate and distinct from the criminal action. (Budlong v. Apalisok, 22 SCRA 935)
The provisions of the Probation Law should be liberally construed in order that the objective should be realized and
achieved. (Santos v. Hon. Pano, 55130, Jan. 17, 1983) In probation, the imposition of the sentence is suspended and
likewise its accessory penalties are likewise suspended. An order placing the defendant on probation is not a sentence
but is rather in effect a suspension of the imposition of the sentence. It is not a final judgment but is rather an
interlocutory judgment in the nature of the a conditional order placing the convicted defendant under the supervision of
the court for his reformation. (Baclayon v. Hon. Mutia, 129 SCRA 148)