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SPECIAL PENAL LAWS

INDETERM INATE SENTENCE LAW (ACT NO. 4103 as amended by Act 4225) (AN ACT TO PROVIDE FOR AN INDETERMINATE SENTENCE AND PAROLE FOR ALL PERSONS CONVICTED OF CERTAIN CRIMES BY THE COURTS OF THE PHILIPPINE ISLANDS; TO CREATE A BOARD OF INDETERMINATE SENTENCE AND TO PROVIDE FUNDS THEREFOR; AND FOR OTHER PURPOSES) Administrative Code of l987, provides: That the provisions of Act No. 4103, provides that the provisions of Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended shall continue to apply except as otherwise amended, modified or repealed by this Code (Title III, Chapter 6, Sec. 22). The words Board of Indeterminate Sentence and the Governor General used in this Act should read: Board of Pardons and Parole and President of the Republic of the Philippines. A) What is the Indeterminate Sentence Law? It is the law which modified the imposition of penalties under the Revised Penal Code and Special Penal Laws. The Courts are mandated in imposing a sentence to fix a minimum and a maximum period of penalty. The minimum sentence must be served and thereupon, the convict becomes eligible for parole. When released, he does not become actually discharged because the rest of his sentence is served out of prison under the supervision of a probation officer. B) Purpose/Objectives: To uplift and redeem valuable human material and prevent unnecessary and excessive deprivation of personal liberty and economic usefulness (Pp. vs. Ducosin- 59 Phil. 109, Pp. vs. Onate- 78 SCRA 43 & Vaca vs. CA, Nov. l998- 100 SCAD). 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 Pardon and Parole. That is why after he has served the minimum and he has shown that he has reformed, the prisoner is given parole.

C) Crimes covered: 1) REVISED PENAL CODE a) maximum term of indeterminate sentence is the penalty in view of the attending circumstances that can properly be imposed under the Revised Penal Code; b) minimum is one degree lower than the penalty prescribed by the Code; The minimum penalty should be within any period of the penalty next lower in degree to that prescribed by law and the maximum should be within the proper period of the penalty where the sentence is straight penalty (Baban vs. Pp. 61 SCRA 275). Example crime is Homicide- punishable with Reclusion Temporal- 12 years and 1 day to 20 years. Max.- 17 years, 4 mos. & 1 day to 20 years Med.- 14 years, 8 mos. & 1 day to 17 years & 4 mos. Min.- 12 years & 1 day to 14 years & 8 mos. Prision Mayor: Max. 10 years & 1 day to 12 years Med. - 8 years & 1 day to 10 years Min. - 6 years & 1 day to 8 years Upon arraignment, accused pleaded guilty. There is therefore one mitigating circumstance of plea of guilt. Article 64, par. 2, provides that when only a mitigating circumstance is present in the commission of the act, they shall impose the penalty in its minimum period. Start of the counting is minimum of Reclusion Temporal- 12 years and 1 day to 14 years and 8 months. One degree lower to determine the minimum imposable is 6 years and 1 day; without changing the maximum- which 14 years & 8 months.- 6 years & 1 day of Prision Mayor in its minimum period as its minimum to 14 years and 8 months of Reclusion Temporal in its minimum period as its maximum. 2) SPECIAL PENAL LAWS: a) maximum term of indeterminate sentence shall not exceed the maximum

fixed by law and the minimum shall not be less than the minimum prescribed by said law. Example: Penalty for Carnapping- Not less than 14 years and 8 months and not more than seventeen years and 4 months. Applying the ISL 14 years and 8 months to 15 years/ 15 years and 3 months to 17 years and 4 months. Straight penalty - 14 years and 8 months 17 years and 4 months D) Cases in which the ISL cannot be applied: 1) Offenses punishable by death or life imprisonment; 2) Non-prison terms Destierro, disqualification; 3) Those whose maximum period of imprisonment does not exceed one year; 4) Those convicted of the following crimes: Treason (Art. 114), Conspiracy or Proposal To Commit Treason (Art. 115); Misprision of Treason (Art. 116); Rebellion (Art. 134); Sedition (Art. 139); Expionage (Art. 117); Piracy (Art. 122); 5) For the following offenders: habitual delinquents, escapees from confinement, evaders of sentence and violators of conditional pardon granted by the President. 6) Those who are already serving final judgment upon the approval of this Act. This does not apply to Destierro because this does not involved imprisonment (Pp. vs. Lalez- April 15, l963). A minor who escaped from confinement in the reformatory is entitled to the benefits of the ISL because his confinement is not considered imprisonment. same if the accused escaped from the National Mental Hospital (Pp. vs. Co) Recidivists are entitled to an Indeterminate Sentence (Pp. vs. JaranillaFeb. l974). ISL will also be applicable when the penalty imposed is a result of plea bargaining (Ladino vs. Garcia- 77 SCAD or 265 SCRA). For the offense of Illegal Possession of Firearms ISL is applicable because while it is true that this is under SPL, the penalties therein were taken from the RPC ( Pp. vs. Simon & Pp. vs. Lian 69 SCAD). In crimes involving Violation of BP 22 (Bouncing Check Law) which carries a penalty of not less than 30 days but not more than 1 year or by a Fine of not

less than , but not more than double, the amount of the check which fine shall not exceed P200,000, or both such fine and imprisonment at the discretion of the court. In this instance, a fine in an amount equal to double the amount of the check involved is an appropriate penalty to impose on each of the petitioner ( Vaca vs. CA- Nov. l998- 100 SCAD & Rosa Lim vs. Pp. En BancSept. 2000). Section 3- Members of the Board of Pardons & Parole: Secretary of Justice - Chairman 4 members to be appointed by the Pres. w/ the consent of the Comm. On Appointment (6 yrs term) (conditions: one board member shall be a trained sociologist, clergyman or educator, psychiatrist, woman- other members shall be persons qualified for such work by training and experience). Sec. 4 Majority of the board shall constitute a quorum and shall be necessary in arriving at a decision. Sec. 5- It shall be the duty of the Board to look into the physical, mental or moral record of the prisoners who shall be eligible for parole and to determine the proper time of release. Sec. 6- Prisoner released shall report to personally to a probation officer designated by the Board for the period equivalent to the remaining portion of his sentence or until final release or discharge is being made. This period can be fixed from time to time depending on the conduct of the prisoner. Sec. 7- The Board shall inform the court of the conditional or final order of release of the prisoner. Sec. 8 If the prisoner released on parole violates any of the conditions of his parole, the Board of Pardons and Parole may issue an order for his re-arrest which may be served anywhere in the Philippines. The prisoner re-arrested shall served the remaining unexpired portion of his sentence, unless the Board in its discretion, may grant a new parole.

PROBATION LAW OF 1976 (PD NO. 968) (AS AMENDED BY PD 1257, BP BLG. 76 & PD NO. l990) 1) PROBATION (Sec. 3) 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. Probationer a person placed under probation Probation Officer one who investigates for the court a referral for probation or supervises a probationer or both. Probation is a mere privilege, not a right. Its benefits cannot extend to those expressly excluded. Probation is not a right of the accused, but rather an act of grace and clemency or immunity conferred by the State which may be granted by the Court to a seemingly deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he stands convicted (Francisco vs. CA April l995- 60 SCAD). Santos vs. CA- Dec. l999- ll6 SCAD the Supreme Court ruled that the petitioner is not entitled to probation because she has displayed a dubious and reprehensible character in trying to evade the implementation of the execution against her thereby rendering the judgment against her ineffective. In this case, she executed a simulated deed of sale over her property. Instead of complying with the orders of the trial court in the 54 counts of violation of BP 22, she resorted to artifice to evade the implementation of a writ of execution against her. To allow her to be placed on probation would be to depreciate the seriousness of her wrongdoings. The Probation Law is not a penal statute and therefore the principle of liberal interpretation in favor of the accused does not apply (Pablo vs. Judge Castillo August 2000- 131 SCAD). 2) PURPOSE/OBJECTIVES OF PROBATION LAW: 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; c) To prevent the commission of offenses (Facinal vs. Cruz - G.R. 50618 Sept. 2, l992).; d) To decongest our jails; and e) To save the government much needed funds which would be spent on maintaining him inside the jail.

3) PROBATIONABLE PENALTY the penalty imposed must not exceed Six (6) year. 4) OFFENDERS NOT ENTITLED TO PROBATION (Disqualified Offenders): a) Those sentenced to serve a maximum term of imprisonment of more Than six (6) years; b) Those convicted of any offense against the security of the State such Subversion, or any crime against National Security or Public Order (Am. By PD l990); c) Those who have been previously convicted by final judgment of an offense punished by imprisonment of not less than one month and one day or a fine of not less than P200. (The word previous refers to the date of conviction and not to the date of commission of the offense Rura vs. Judge Lopena- 137 SCRA 121); d) Those who are already serving sentence at the time of the effectivity of the Decree. e) Those who have been once on probation under the provisions of this Decree (Amended by PD l990); f) Those who have perfected an appeal because appeal and probation are mutually exclusive remedies (Francisco vs. CA April l995- 60 SCAD). 5) PROCEDURE: a) The defendant must file before the Trial Court an Application for Probation after he has been sentenced but before he begins to serve his sentence. b) The Prosecuting Officer concerned shall be notified by the Court of the filing of such application and may submit his comments within 10 days from notice. c) The application shall be entertained by the Court by ordering the Probation Officer to conduct an investigation of the offender provided he is not disqualified under the Decree. (While it is discretionary with the Court to grant or deny an Application for Probation, yet the law requires an investigation. Outright denial is a nullity correctible by Certiorari Del Rosario vs. Hon. A. Rosero- G.R. 65004- Nov. 29, l983). d) The Probation Officer shall submit his report (Post Sentence Investigation Report) within 60 days from receipt of the Court order. This Report is confidential and privileged and shall not be revealed directly or indirectly except to the Probation Administration and the Court concerned. Violation of this confidentiality is punishable with an imprisonment term of 6 mos. and 1 day to e) Then the Court resolves the application within 15 days from receipt of the report (The determination by the Court should be that the ends

of justice and the best interest of the public and that of the offender will be served thereby. The Court shall consider all information relative to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the Court finds that: a) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; b) there is an undue risk that during the period of probation the offender will commit another crime; or c) probation will depreciate the seriousness of the offense committed. . The Order granting or denying the application is non-appealable. f) During the pendency of the application and the submission of the Post Sentence Investigation Report, the defendant may be allowed temporary liberty under his Bail Bond in the criminal case or under recognizance to the custody of a responsible person who shall guarantee his appearance whenever required by the Court. g) Probation Order is to be read in open Court in the presence of the offender who shall be informed of the consequences of probation and that upon failure to comply with the conditions of the Probation Order or his commission of another offense during the probation period, he shall serve the penalty for the offense under which he was placed on probation. h) As mandatory conditions of the probation order, the probationer shall Present himself to the Probation Officer within 72 hours from receipt of the probation order and shall report himself to the Probation Officer at least once a month during the period of probation. OTHER CONDITIONS OF PROBATION: 1) Cooperate with a program of supervision; 2) Meet his family responsibilities; 3) Devote himself to a specific employment and not to change said employment w/o prior written approval of the Probation Officer; 4) Undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specific institution, when required for that purpose; 5) Pursue a prescribed secular study or vocational Training; 6) Attend or reside in a facility established for instruction, recreation or residence of persons on probation; 7) Refrain from visiting houses of ill-repute;

8) Abstain from drinking intoxicating beverages to excess; 9) Permit the Probation Officer or an authorized social worker to visit his home and place of work; l0). Reside at premises approved by it and not to change his residence without its prior written approval; or 10) Satisfy any other condition related to the rehabilitation of the defendant and not duly unduly restrictive of his liberty or incompatible with his freedom of conscience. The Court may revise or modify the conditions or period of probation upon an application filed by the probationer or Probation Officer at any time during the period of probation. If approved by the Court, the probationer or Probation Officer is informed in writing of any change in the period or conditions of probation. 6) PERIOD OF PROBATION: a) If the offender is sentenced to a term of imprisonment of not more than one (1) year period shall not exceed 2 years. In all other cases- period shall not exceed 6 years. b) If the sentence imposes a fine only and the offender is to serve a subsidiary imprisonment because of insolvency period shall not be less than nor more than twice the total number of days of subsidiary imprisonment at the rate established at Art. 39. c) If the sentence is fine and imprisonment period is to be based upon his imprisonment . 7 ) EFFECT OF COMPLIANCE OF THE CONDITIONS OF PROBATION: The Court may order the discharge of the probationer and the case is considered terminated. The final discharge 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. 8) PROCEDURE IF CONDITIONS OF PROBATION ORDER IS VIOLATED: The Probation Officer shall conduct a fact-finding investigation of the violation. If the violation is established, the Probation Officer reports the same to the Court and the circumstances thereof, statement of witnesses and the Police Officer if any, explanation of the probationer and the recommendation of the Probation Officer. The Court, after considering the nature and seriousness of the alleged violation, may issue a warrant for the arrest of

the probationer. He is then brought to the Court immediately for hearing, which is summary. Pending hearing, probationer may be admitted to bail. At the hearing, probationer shall have the right to be assisted by counsel. The Probation Officer shall be assisted by the Prosecution Officer in the presentation of the proof of evidence of the alleged violation. The Court shall not be bound by technical rules of evidence and may inform itself of all facts material and relevant to determine the veracity of the charge. If the 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. 9) THE SUSPENSION OF THE SENTENCE HAS NO BEARING TO THE CIVIL LIABILITY (Budlong vs. Hon. Apalisok, et al L-60151-JUNE 24, 1983- 22 SCRA 935). 10 ) In Probation, the imposition of sentence is suspended. An Order placing the defendant on probation is not a sentence but is rather in effect a suspension of the imposition of sentence. It is not a final judgment but is rather an interlocutory judgment in the nature of a conditional order placing the convicted defendant under the supervision of the Court for his reformation, to be followed by a final judgment of discharge, if the conditions of the probation are complied with, or by a final judgment of sentence if the conditions are violated (Baclayon vs. Hon. Mutia L- 50208- 129 SCRA 148). 11) FRANCISCO VS. COURT OF APPEALS April, l995- 60 SCAD- A convict who appealed his decision of conviction even if the question involved the reduction of penalty. That an appeal should not bar the accused from applying for probation if the appeal is taken solely to reduce the penalty (in order to qualify for probation) is simply contrary to the clear and express mandate of the law. Whether multiple terms imposed against the accused in one decision should be added up for purposes of the Probation Law? (Ex. Accused was convicted for l0 counts of BP 22 and meted the penalty of one (1) year each). NO. Multiple prison terms are distinct from each other, and if none of the prison terms exceeds the limit set out in the Probation Law, that is, not more than six (6) years, then he is entitled to probation, unless he is otherwise specifically disqualified. The number of offenses is immaterial as long as all the penalties imposed, taken separately, are within the probationable period. For Section 9, par. (a) of PD 968, as amended, uses the word

maximum, not total, when it says that the benefits of this Decree shall not be extended to those sentenced to serve a maximum prison term of imprisonment of more than six (6) years. 12) PABLO VS. JUDGE CASTILLO, August 2000, 131 SCADThe accused issued three (3) bad checks to one and the same complainant. three (3) separate informations were filed and the three (3) cases were not consolidated. One case was assigned to one Court, which convicted the accused and imposed a fine P4,648.00, while the two other cases were assigned to another Court, which also found the accused guilty of the same violation and imposed a prison term of 30 days in each case. In this case, the accused should be disqualified for probation because the word previous under Sec. 9 ( c ) of PD 968, refers to the conviction, not to the commission of the offense, notwithstanding that the crime arose out of a single act or transaction. The Probation Law is not a penal statute; the principle of liberal interpretation does not apply. 13) DELA TORRE VS. COMELEC - July 1996- 71 SCADWhether the grant of probation affects the applicability of Section 40 (a) of the Election Code applicability (disqualification)? NO. The legal effect of probation is only to suspend the execution of the sentence. The conviction for fencing which involves moral turpitude subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case becomes ipso facto final when the accused applies for probation, although it is not executory pending resolution of his application. 14) SUPREME COURT CIRCULAR NO. 66-97 (Oct. 14, l997). In line with the rulings of the Supreme Court in Pp. vs. Hinlo, G.R. No. 110035, Jan. 31, l995 and Pp. vs. Francisco Salle, G.R. No. 103567, Dec. 4, l995, declaring illegal the grant of pardon or Parole, or even the practice of processing applications therefore, to an accused during the pendency of his appeal from his conviction by the trial court, it is hereby directed that all Commitment Orders for the commitment of an accused to prison should state that the prisoner concerned did not appeal the judgment of conviction or, if an appeal had been filed, that the same had been withdrawn/ dismissed/decided with finality.

15) DISTINCTION BETWEEN PROBATION & ISL: Probation a) Sentence b) Penalty not more than 6 yrs. ISL more than 1 yr. imprisonment only min. to be served unexpired portion to be served no effect.

imprisonment or fine -

c) Disposition- sentence is suspended d) Violation - entire sentence shall be served e) Appeal - foreclose right to appeal -

REPUBLIC ACT NO. 7438 (APPROVED on MAY 12, l992) (AN ACT DEFINING CERTAIN RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR VIOLATION THEREOF) SECTION 1 - STATEMENT OF POLICY- It is the policy of the State to value the dignity of every human being and guarantee full respect for human rights. SECTION 2 RIGHTS OF PERSONS ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION; DUTIES OF PUBLIC OFFICERS. CUSTODIAL INVESTIGATION involves any questioning initiated by law enforcement authorities after a person is taken into custody or otherwise deprived of his freedom or action in any significant manner. The rules on CUSTODIAL INVESTIGATION begin to operate as soon as the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect. When the suspect is taken into custody and the police carries out a process of interrogations that tends itself to eliciting incriminating statements, the rule begins to operate (Pp. vs. Tan February l998- 91 SCAD). Under this ACT, CUSTODIAL INVESTIGATION shall include the practice of issuing an invitation to a person who is being investigated in connection with an offense

he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of the law (Sec. 2 (f)). a) Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel. It is therefore mandatory for any officer to inform the arrested of his right to avail of the services of an independent and competent counsel. b) Any public officer or employer, or anyone acting under his order or in his place, who arrests, detains, or investigates any person for the commission of an offense shall inform the latter, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the persons arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and independent counsel by the investigating officer. Three (3) rights: 1) to remain silent; 2) to be assisted by counsel; and 3) to be provided with counsel if he cannot afford one. c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumb marked if the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever. d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latters absence upon a valid waiver, and in the presence of any of his parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible in evidence in any proceeding. (This provision is unconstitutional, as waiver of counsel is not allowed refer to Sec. e). e) Any waiver by person arrested or detained under the provision of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in the presence of his counsel; otherwise such waiver shall be null and void and of no effect (Pp. vs. Francisco Galit). f) Any person arrested or detained or under custodial investigation shall be allowed

visits by or conferences with any member of his immediate family. or any medical doctor or priest or religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human Rights or by any international non-governmental organization duly accredited by the Office of the President. Immediate family include the spouse, fianc or fiance, parent or child, brother or sister, grandparent or grandchildren, uncle or aunt, nephew or niece and guardian or ward. SECTION 3- ASSISTING COUNSEL any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes (other than government lawyers). Fees: 1) P150.00 - if the suspected person is charged of light felonies; 2) P250.00 - if the suspected person is charged of less grave or grave felonies; 3) P350.00 - if the suspected person is charged w/ capital offenses.

These fees shall be paid by the city or municipality where the custodial investigation is being conducted. But if the city or municipality cannot pay, the Municipal or City Treasurer must issue a certification that no funds are available before the province will pay. SECTION 4 PENALTY CLAUSE a) Arresting officer who fails to inform the arrested person of all his rights, provided under sec. 2 = FINE P6,000 or IMPRISONMENT not less than eight (8) years but not more than ten (10) years, or both. Additional penalty Perpetual Absolute Disqualification if the investigating officer has been previously convicted of similar offense. Same penalty shall be imposed upon a public officer who fails to provide to the arrested person a competent and independent counsel. b) Any person who obstructs, prevents or prohibits any lawyer, or member of the immediate family of the person arrested/detained/under custodial investigation, or any medical doctor or priest or religious minister or by his counsel, from visiting and conferring privately chosen by him or by any member of his immediate family with him or from examining and treating him, or from ministering to his spiritual needs, at any hour of the day,

or in urgent cas4es, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of Four thousand pesos (P4,000.00).