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.

-oooOOOooo-

CHAPTER 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:

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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.
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Who
Delinquent?

is

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
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