364364605-special-penal-laws-pdf.txt

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 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 principle of conspiracy was again applied suppletorily. 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; *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

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 penalty imposable; in a special penal law, they are not; *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. 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 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

1.04 ARE SPECIAL LAWS AMENDING CERTAIN PROVISIONS OF THE REVISED PENAL CODE CONSIDERED MALA PROHIBITA? No, special laws which are intended merely as amendments to certain provisions of the Revised Penal Code are mala in se and still subject to its provision. -oooOOOoooCHAPTER I. PROBATION LAW Presidential Decree No. 968 [BAR Q. 2012, 2010, 2009, 2005, 2004, 2003, 2002, 2001, 1997, 1995, 1994, 1993, 1992, 1990, 1986] 1.00 WHAT ARE THE PURPOSES OF PROBATION? (SEC.2) [BAR Q.1986, 1989] The purposes of probation are as follows: (a) to promote the correction and rehabilitation of an offender by providing him with individualized treatment; b) to provide an opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and (c) to prevent the commission of offenses. 1.01 WHEN MUST THE APPLICATION FOR PROBATION BE FILED? An application for probation must be made within the period for perfecting an appeal. Sable vs. People 584 SCRA 619, April 7, 2009 1.02 IF THE CONVICT HAD ALREADY PERFECTED AN APPEAL, CAN AN APPLICATION FOR PROBATION STILL BE GRANTED?(SEC.4) No, provides: Probation Law expressly “x x x no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment of conviction.” The Probation Law prohibits a judge

from entertaining or granting an application for probation if the defendant has perfected an appeal from the judgment of conviction. Salvan vs People, 410 SCRA 638 In Sable vs. People, 584 SCRA 619, April 7, 2009, the application for probation was denied. In this case, petitioner already filed a Notice of Appeal before the RTC before the application was instituted. The law is 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. BAR Q.[2010] Matt was found guilty of drug trafficking while his younger brother Jeff was found guilty of possession of equipment, instrument, apparatus and other paraphernalia for 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

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

right to appeal.” Illustrative case BAR Q.[1992] Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was imposed the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years as maximum, both a prision correctional and was ordered to indemnify the offended party in the amount of P3,000.00. He filed an application for probation upon the promulgation of the judgment. What is the legal effect of his application for probation on the judgment of conviction? Does said application interrupt the running of the period of appeal? Suggested Answer: The legal effect of Johnny’s application for probation effectively waives his right to appeal. Judgment of conviction had become final and executory upon filing of the said application. The remedy of appeal is unavailing. 1.05 IS A WAIVER OF THE RIGHT TO APPEAL FROM A JUDGMENT OF CONVICTION LIKEWISE A WAIVER ON THE CIVIL LIABILITY EX DELICTO? No. In an appeal from a judgment of conviction, the criminal liability and the civil liability ex delicto should be considered independently, each with its own corresponding effects. In People vs. Efren Salvan Y Presenes, G.R. No. 153845 September 11, 2003, the 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. 1.06 MAY PROBATION BE GRANTED EVEN IF THE SENTENCE IMPOSES A FINE ONLY? Yes, Section 4 of the same law states: “Probation may be granted whether the sentence imposes a term of imprisonment or a fine only.” 1.07 IS AN ORDER GRANTING OR DENYING PROBATION APPEALABLE? BAR Q.[2002] 4

1.08 HOW DOES THE PREVAILING JURISPRUDENCE TREAT APPEAL AND PROBATION AS REMEDIES? Prevailing jurisprudence treats appeal and probation as mutually exclusive remedies because the law is unmistakable about it and, therefore petitioner cannot avail herself of both. 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. Drugs Act Of 2002) 1.11 ILLUSTRATION OF THE DISQUALIFICATIONS OF PROBATION LAW. (1) Sentenced To Serve A Maximum Term Of Imprisonment Of More Than Six Years. Illustrative case 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) day of reclusion temporal, as maximum. Prior to his conviction, he had been found guilty of vagrancy and imprisoned for ten (10) days of arresto menor and fined fifty pesos (P50.00). Is he eligible for probation? Why? Suggested Answer: A is not eligible because his conviction exceeds six years. Probation does not extend to those sentenced to serve a maximum term of imprisonment of more than six years. His previous convictionin this case has nothing to do with

his ineligibility to avail of probation. (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. (5) Who Are Already Serving Sentence At The Time The Substantive Provisions Of This Decree Became Applicable.” In addition: (6) Who Has Perfected An Appeal From The Judgment Of Conviction. (Sec.4) (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 a. Are there exceptions where even if the convict had filed an appeal still he is allowed to file a petition for probation? Yes, there are exceptions and they are the following: 1. One exception is provided under 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 judgment of conviction and he/she shall serve sentence as any other convicted person. The court, however, may place the accused under probation or community service in lieu of imprisonment. Upon promulgation of the sentence, the court may, in its discretion, place the accused under probation, even if the 5

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 probation law. ARNEL COLINARES vs. PEOPLE G.R. No. 182748, December 13, 2011 FACTS: Arnel Colinares was found guilty of frustrated homicide by the RTC and sentenced him to suffer imprisonment from two years and four months of prision correccional, as minimum, to six years 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 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 Arnel was guilty, not of frustrated homicide, but only of attempted homicide, is an original conviction that for the first time imposes on

him a probationable penalty. Had the RTC done him right from the start, it would have found him guilty of the correct offense and imposed on him the right penalty of two years and four months maximum. This would have afforded Arnel the right to apply for probation. 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 served by a harsh and stringent interpretation of the statutory provisions. This may be true if the trial court meted out to Arnel a correct judgment of conviction. Here, however, it convicted Arnel of the wrong crime, frustrated homicide that carried a penalty in excess of 6 years. How can the Court expect him to feel penitent over a 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. At any rate, what is clear is that, had the RTC done what was right and imposed on Arnel the correct penalty of two years and four months maximum, he would have had the right to apply for probation. No one could say with certainty that he would have availed himself of the right had the RTC done right by him. The idea may not even have crossed his mind precisely since the penalty he got was not probationable. c. What does R.A. 10707 provide where 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. No. 10707 provides that NO application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a nonprobationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision shall becomes final.

d. Would the “total prison term” or the “maximum prison term” of the sentence be taken into account in determining one’s eligibility for probation? 6

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. Francisco vs. CA, 243 SCRA 384 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 and/or fine of less than P200.00. (2) Convicted Of Any Crime Against National Security or the Public Order. d. Probation is not applicable when accused is convicted of indirect bribery. The Crimes against Security are as follows: (3) Who Have Previously Been 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 Two Hundred Pesos. National a. Treason b. Conspiracy and Proposal to Commit Treason c. Misprision of Treason d. Espionage e. Terrorism and Conspiracy to Commit Terrorism under R.A. 9372 The following are classified as Crimes against Public Order: a. Rebellion, Coup d’ etat, Sedition and Disloyalty b. Crimes against Legislative Bodies and Similar Bodies, Violation Of Pariliamentary Immunity c. Illegal Assemblies and Associations d. Assault Upon, and Resistance and Disobedience to Persons In Authority and Their Agents e. Public Disorders f. Commission of Another Crime During Service of Penalty Imposed for Another Previous Offense

BAR Q. [2012] Under which of the following circumstances is probation not applicable? a. Probation is not applicable when the accused is sentenced to serve a maximum of six (6) years. c. Probation is not applicable when accused is convicted of indirect assault. (*Indirect assault is a crime against public order) Illustrative case BAR Q.[2004] PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed on him was thirty days only. Is PX entitled to probation? Suggested Answer: Yes, the penalty imposed upon him does not exceed 6 years. His previous conviction for another crime with a penalty of thirty days imprisonment or not exceeding one (1) month does not disqualify him from applying for probation. (4) Who Have Been Once On Probation Under The Provisions Of This Decree. (5) Who Are Already Serving Sentence At The Time The Substantive Provisions Of This Decree Became Applicable Pursuant To Section 33 Hereof. (6) Who Has Perfected An Appeal From The Judgment Of Conviction (Sec.4, Probation Law. (*See previous discussion) Probation essentially rejects appeals and encourages an otherwise eligible convict to immediately admit his liability and save the state the time, effort and expenses to jettison an appeal. Sable vs. People 584 SCRA 619, April 7, 2009 7

(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 Drugs Act Of 2002). The Supreme Court had the occasion to explain this disqualification in Padua vs. People, 559 SCRA 519, July 23, 2008, where it states that under Section 24 of Rep. Act No. 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 not exceed six years. 1.13 WHAT IS THE CONSEQUENCE IF THE PROBATIONER VIOLATES ANY OF THE CONDITIONS OF PROBATION? (SEC. 15) The court may arrest the probationer, hold an informal summary hearing and may revoke his probation in which case, he has to serve the sentence originally imposed. 1.14 WHEN IS PROBATION DEEMED TERMINATED? (Sec.16). After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated. 1.15 WHAT IS THE CONSEQUENCE OF A

FINAL DISCHARGE OF THE PROBATIONER? (Sec.16). The final discharge of the probationer shall operate to restore to him all civil rights lost or suspend as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. 1.16 HOW CONSTRUED? IS PROBATION LAW It is well-settled that the probation law is not a penal statute; and therefore, the principle of liberal interpretation is inapplicable. And when the meaning is clearly discernible from the language of the statute, there is no room for construction or interpretation. People vs. Alejandra Pablo, G.R. No. 12510: August 3, 2000 1.17 IS A PROBATIONER DISQUALIFIED FROM RUNNING FOR A PUBLIC OFFICE DURING THE PERIOD OF HIS PROBATION? No. In the case of Moren vs. COMELEC and MEJES, G.R. 168550, August 10, 2006, the Supreme Court emphasized that during the period of probation, the probationer is not disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation. The Court went on to state the case of Baclayo vs. Mutia, 129 SCRA 148, where it ruled that an order placing defendant on probation is not a sentence but is rather in effect a suspension of imposition of sentence. The grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow the profession or calling and that of perpetual 8

special disqualification from the right of suffrage. and excessive jurisdiction of personal liberty and economic usefulness; 1.18 DOES THE GRANT OF PROBATION AFFECT THE ADMINISTRATIVE ASPECT OF A CASE? 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. 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 -ooo000oooCHAPTER II. INDETERMINATE SENTENCE LAW ACT NO. 4103 as amended by Act No. 4225 and Republic Act No. 4203 [BAR Q. 2014, 2010, 2009, 2007, 2005, 2003, 2002, 1999, 1994, 1991, 1990, 1989, 1988] 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 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 by degrees or determining the proper period should be applied. 1.02 UNDER WHAT CIRCUMSTANCES IS THE INDETERMINATE SENTENCE LAW NOT APPLICABLE (SEC. 2)? ___________________________________________________ A. IN GENERAL 1.00 CITE THE PURPOSES OF THE INDETERMINATE SENTENCE LAW. The purposes of Indeterminate Sentence Law are as follow: 1) To uplift and redeem valuable human material and prevent unnecessary [*BAR Q: State the application of the Indeterminate Sentence Law/ BAR Q: Under what circumstances is the Indeterminate Sentence Law not applicable?] PURSUANT TO SECTION 2 OF THE INDETERMINATE SENTENCE LAW, IT SHALL NOT BE APPLICABLE IN THE FOLLOWING CASES: 9

1. Offenses 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. 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. b. Query: May the privileged mitigating circumstance of minority be appreciated in fixing the penalty that should be imposed even if the penalty imposed is originally an indivisible penalty? Yes. The ISLAW is applicable because the penalty which has been originally an indivisible penalty (reclusion perpetua to death), where ISLAW is inapplicable, became a divisible penalty (reclusion temporal) by virtue of the presence of the privileged mitigating circumstance of minority. People vs. Allen Udtojan Mantalaba, G.R. No. 186227: July 20, 2011 2. Those Conspiracy Treason. Convicted of Treason, or Proposal to Commit a. TREASON

b. CONSPIRACY TO COMMIT TREASON. Illustrative Case BAR Q.[2012] AA was convicted of proposal to commit treason. Under Article 115 of the Revised Penal Code, proposal to commit treason shall be punished by prision correccional and a fine not exceeding P5,000.00. Is the Indeterminate Sentence Law applicable to AA? 1. Offenses Punishable By Death Or Life Imprisonment. a. Yes. The Indeterminate Sentence Law is applicable to AA because the maximum of prision correccional exceeds one (1) year. a. May a person punished with reclusion perpetua be entitled to the benefits of ISLAW? b. Yes. The Indeterminate Sentence Law is applicable to AA because there is no showing that he is a habitual delinquent. No, it is deemed included in the disqualification. The Indeterminate Sentence Law does not apply to persons convicted of offenses punishable with Reclusion Perpetua. People vs. Lab-eo, 373 SCRA 461 c. No. The Indeterminate Sentence Law is not applicable to AA considering the penalty imposable for the offense of which he was convicted. The Court has equated the penalty of reclusion perpetua as synonymous to life imprisonment for purposes of the Indeterminate Sentence Law. People vs. Enriquez G.R. No. 158797 July 29, 2005 d. No. The Indeterminate Sentence Law is not applicable considering the offense of which he was convicted (*The crime for which AA was convicted is proposal to commit treason). 3. Habitual Delinquents. 10

Who Delinquent? is a Habitual He is a person who within a period of ten (10) years from the date of his release or last conviction of the crimes of serious, less serious physical injuries, robbery, theft, estafa or falsification, he is found guilty of any of said crimes a third time or oftener (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 imprisonment is less than 1 year? The Indeterminate Sentence Law does not apply if the maximum term of imprisonment does not exceed one year if the trial court opts to impose penalty of imprisonment less than one year, it should not impose indeterminate penalty but straight penalty of one year or less instead. An indeterminate sentence

may be imposed if the minimum of the penalty is one year or less, and the maximum exceeds one year. People vs. Lapis, 391 SCRA 131 1.04 WHAT ARE THE REASONS WHY THE MAXIMUM AND THE MINIMUM TERM OF THE INDETERMINATE SENTENCE HAVE TO BE FIXED BY THE COURT? The maximum and minimum term of the sentence have to be fixed because of the following reasons: 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 rearrest. In such case the prisoner so rearrested 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 imprisonment until the end of the maximum. 4) The need for specifying the 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, depending upon his behavior and his 11