Indeterminate Sentence Law/Probation Law

attyrcd / January 28, 2010

INDETERMINATE SENTENCE LAW

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

The purpose of the law is to uplift and redeem valuable human material and prevent unnecessary
and excessive deprivation of personal liberty and economic usefulness. (People v. Onate, 78
SCRA 43) As a rule, it is intended to favor the accused particularly to shorten his term of
imprisonment, depending upon his behavior and his physical, mental, and moral record as a
prisoner to be determined by the Board of Indeterminate Sentence.

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

COVERAGE:

1. Revised Penal Code

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

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

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

2. Special Law

The court shall sentence the accused to an indeterminate sentence, the MAXIMUM TERM
of which shall not exceed the maximum fixed by said law and the minimum shall not be less
than the MINIMUM TERM prescribed by the same. (Q11, 1994 Bar)
Example: Penalty is one year to 5 years. Indeterminate sentence may be one year to 3 years or
3 years to 5 years.

This act shall not apply to persons:

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

2. Those convicted of treason, conspiracy or proposal to commit treason, misprision of treason,

rebellion, sedition or espionage, or piracy.

3. Those who are habitual delinquents.

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

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

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

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

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

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

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

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

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

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

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

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

The purpose of the law are:

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

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

3. Prevent the commission of offenses.

The trial court may, after it shall have convicted and sentenced a defendant, and upon application
by said defendant within the period for perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation. No application for probation shall be
entertained or granted if the defendant has perfected an appeal from the judgment of conviction.
(PD 1990) In other words, the filing of the application for probation is considered as a waiver of
the right of the accused to appeal. (Q9, 1992 Bar)

An application for probation shall be filed with the trial court. The filing of the application shall
be deemed a waiver of the right to appeal. An order granting or denying probation shall not be
appealable. However, an outright denial by the court is a nullity correctible by certiorari. (De
Luna v. Hon. Medina, CA 78 OG 599) An accused must fall within any one of the
disqualification in order to be denied probation. (Balleta v. Leviste, 92 SCRA 719) (Q13, 1991
Bar)

The disqualified offenders are:

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

A penalty of six years and one day is not entitled to the benefits of the law. (Q3, 1995 Bar; Q12,
1990 Bar) In Francisco v. CA, 243 SCRA 384, the Supreme Court held that in case of one
decision imposing multiple prison terms, the totality of the prison terms should not be taken into
account for the purposes of determining the eligibility of the accused for the probation. The law
uses the word “maximum term”, and not total term. It is enough that each of the prison term
does not exceed 6 years. The number of offenses is immaterial for as long as the penalties
imposed, when taken individually and separately, are within the probationable period. (Q9, 1997
Bar)

2. Convicted of any crime against the national security (treason, espionage, piracy, etc.) or the
public order (rebellion, sedition, direct assault, resistance, etc.).
3. Who have been previously convicted by final judgment of an offense punished by
imprisonment of not less than one month and one day and/or a fine of not less than P 200. (Q2,
1993 Bar)

4. Who have been once on probation.

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

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

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

The probationer shall:

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

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

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

A final discharge of probation shall operate to restore to the probationer all civil rights lost or
suspended as a result of the conviction and to full discharge of his liability for any fine imposed.
Under the Probation Law what is suspended is the execution of the sentence, while under PD
603, as amended, what is suspended is the pronouncement of the sentence upon request of the
youthful offender. The suspension of the sentence, however, has no bearing on the civil liability,
which is separate and distinct from the criminal action. (Budlong v. Apalisok, 22 SCRA 935)

The provisions of the Probation Law should be liberally construed in order that the objective
should be realized and achieved. (Santos v. Hon. Pano, 55130, Jan. 17, 1983) In probation, the
imposition of the sentence is suspended and likewise its accessory penalties are likewise
suspended. An order placing the defendant on probation is not a sentence but is rather in effect a
suspension of the imposition of the sentence. It is not a final judgment but is rather an
interlocutory judgment in the nature of the a conditional order placing the convicted defendant
under the supervision of the court for his reformation. (Baclayon v. Hon. Mutia, 129 SCRA 148)

Indeterminate Sentence Law (ISLAW): How to determine maximum and

minimum penalties

(Act no 4103 as amended)

The Indeterminate Sentence Law is mandatory in all cases, EXCEPT if the accused will fall in
any of the following exceptions:

1. if sentenced with a penalty of death or life imprisonment

2. if convicted of treason, conspiracy, proposal to commit treason
3. if convicted of misprision of treason, sedition, rebellion or espionage
4. if convicted of piracy
5. if the offender is a habitual delinquent
6. those who escaped from prison or evaded sentence
7. those who violated the terms of conditional pardon of the chief executive
8. where the maximum term of imprisonment does not exceed 1 year (important!)
9. if convicted by final judgement at the time of the effectivity of Act No. 4103
10. if penalized with suspension or distierro

If accused fall in any of the foregoing exceptions. DO NOT APPLY ISLAW!

ISLAW applies to offenses punished by Special Law and Revised Penal Code.

Why is ISLAW mandatory?

In the application of the Indeterminate Sentence Law the judge will get the maximum penalty
and likewise the minimum penalty. If the accused was already able to serve the minimum term of
his indeterminate sentence and upon the approval of the Board, the accused now becomes
eligible for parole. ISLAW is favorable to the accused.

If the accused was granted parole and violated some conditions of the parole, What will
happen?

A warrant of arrest will be issued by the court and the accused will be made to serve the rest of
the remaining or unexpired portion of his sentence. (But in probation you go back to number 1,
serving of sentence will be from the beginning)
Application of ISLAW:

How to get maximum and minimum penalty in Special Law:

1. The maximum penalty should NOT exceed the maximum provided for by that law.
2. The minimum penalty should NOT fall below the minimum provided by the law.

How to get maximum and minimum penalty in Revised Penal Code:

Example: In the crime of homicide, under the Revised Penal Code, the offender is sentenced to
reclusion temporal.

The maximum penalty under the Indeterminate Sentence Law is reclusion temporal. But
reclusion temporal is a divisible penalty consisting of maximum, medium and minimum periods.
Which period will we place the maximum term of the Indeterminate Sentence?

Guide for determining the maximum penalty:

1. Determine the entire range of the penalty
2. Determine if there is mitigating or aggravating circumstance

Which period will the maximum penalty be placed?

In pursuant to art 64, when there is no mitigating and no aggravating circumstance, it should be
placed at the medium period. Thus, the maximum penalty for the example above is reclusion
temporal in the medium period.

What is the minimum penalty now?

In getting the minimum penalty, the rule is to simply get the penalty one (1) degree lower from
the maximum penalty without taking into account the mitigating and aggravating circumstance.
Thus, the penalty one degree lower from reclusion temporal, without taking into account any
mitigating or aggravating circumstance, is prision mayor. Prision mayor is now the minimum
penalty for our example.

Important: If your maximum penalty is wrong, it follows that the minimum penalty will also be
wrong.

Again, prision mayor is a divisible penalty. Which period can it be placed?

Under the Indeterminate Sentence Law, it would depend upon the discretion of the court on
which period to place it. Thus, the minimum penalty is prision mayor in any of its period.

Factors that could affect the imposition of minimum penalty:

1. Age
2. Conduct during trial
3. Mental or physical condition

Suppose in the example above, 1 aggravating circumstance was proven. What is now the
maximum penalty?
It would still be reclusion temporal, but it shall be placed in the maximum period because of the
presence of 1 aggravating circumstance.
How about the minimum penalty?
It would still be 1 degree lower from reclusion temporal, which is prision mayor. In which
period? It shall be discretionary upon the court.

(More examples)

1 mitigating but NO aggravating

maximum penalty: reclusion temporal in the minimum period
minimum penalty: prision mayor in any period

2 mitigating, NO aggravating (privileged mitigating)

maximum penalty: prision mayor in the medium period
minimum penalty: prision correctional any period

The preceding example is an exception to the rule. If there is a privileged mitigating

circumstance, we take it into account first in order to obtain the proper maximum penalty. Then,
from that maximum penalty, we obtain the proper minimum penalty by getting the penalty 1
degree lower. Same rule applies as to the period of the minimum penalty.

Remember: It will never become a privileged mitigating circumstance if there is an aggravating

circumstance present. 8 mitigating and 1 aggravating will never become privileged mitigating
circumstance.

3 mitigating, NO aggravating
maximum penalty: prision mayor in the minimum period
minimum penalty: prision correctional any period

In the preceding example, there are 3 mitigating circumstance present and no aggravating
circumstance. The first two mitigating circumstance shall be a privileged mitigating
circumstance. Thus, the penalty will be reduced by 1 degree from reclusion temporal to prision
mayor. The 3rd mitigating circumstance shall place the penalty in the minimum period.

4 mitigating, NO aggravating
maximum penalty: prision correctional in the medium period (2 privileged circumstance. Thus
we lower by 2 degrees)
minimum penalty: arresto mayor any period

5 mitigating, NO aggravating
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

At most we can only lower by 2 degrees. Thus, if there are 6 mitigating circumstance and NO
aggravating:
maximum penalty: prision correctional in the minimum period
minimum penalty: arresto mayor any period

How is Indeterminate Sentence Law applied in complex crimes (Article 48)?

A complex crime is punished by the most serious offense and shall be imposed in its maximum
period.

Example: Estafa through falsification of public documents.

Under the Revised Penal Code, falsification of public documents (Article 171) is a more serious
offense punished by prision mayor than estafa (Article 315), punished only by prision
correctional.

Thus, applying the Indeterminate Sentence Law, the maximum penalty for estafa through
falsification of public documents shall be prision mayor in the maximum period. Minimum
penalty shall be prision correctional, any period.

Suppose there was 1 mitigating circumstance proven. Maximum penalty would still be prision
mayor in the maximum period. In pursuant to Article 48, even if there is a mitigating
circumstance present, it should still be imposed at the maximum period.

How about if there are 2 mitigating circumstance and no aggravating?

The rule is, if it is a privileged mitigating circumstance, we lower by the penalty by one degree
but still place it at the maximum period. Thus, the maximum penalty shall be prision correctional
in the maximum period.

4 mitigating, NO aggravating
maximum penalty: arresto mayor in its maximum period

Revisiting "ISLAW"

By Atty. Harold Huliganga

In my five years now as a Court Attorney, I had, on several occasions, come across lower court
decisions incorrectly applying the Indeterminate Sentence Law (I. S. Law) or Act No. 4103. It is
seriously disturbing that despite its seeming simplicity and brevity, some judges had been
perpetually misapplying it.

The basic mandate of the I. S. Law is the imposition of an indeterminate sentence which is
comprised by a MINIMUM term and a MAXIMUM term. It is indeterminate in the sense that
after serving the MINIMUM, the convict may be released on parole, or if he is not fitted for
release, he shall continue serving his sentence until the end of the MAXIMUM. It is the fixing of
the MINIMUM and MAXIMUM terms which generates a lot of confusion and is the constant
source of error of some judges.
There is not much difficulty in ascertaining the indeterminate sentence if the crime is a violation
of a special law because in such a case, the I. S. Law merely requires that the MAXIMUM term
thereof shall not exceed the maximum fixed by the special law while the MINIMUM shall not
be less than the minimum prescribed therein. Accordingly, if a special law imposes a penalty of
�three (3) to nine (9) years of imprisonment�, the MINIMUM of the indeterminate sentence
cannot be less than �3� years while the MAXIMUM thereof cannot be more than �9� years.
Hence, the indeterminate sentence may be decreed as �3-9 years�, �3 years & 9 months - 7
years & 8 months�, �3-4 years�, �3-5 years�, �5-8 years, �8-9 years�, etc., depending
on the sound discretion of the judge.

However, it should be stressed that the reference to special law in this regard refer to those which
provide for one specific penalty or a range of penalties with definitive durations, such as
imprisonment for �eight years� or for �one year to five years� but without division into
periods or any technical statutory cognomen. Where the penalty in the special law adopts the
technical nomenclature and signification of the penalties under the Revised Penal Code (RPC),
such as �prision mayor�, �prision correccional maximum�, etc., the ascertainment of the
indeterminate sentence will be based on the rule intended for those crimes punishable under the
RPC.

The rule for ascertaining the indeterminate sentence for crimes punishable under the RPC is
much arcane and complicated than the rule applied in those crimes punishable under a special
law. In crimes punishable under the RPC, the indeterminate sentence is arrived at by determining
the MAXIMUM term, which, in view of the attending circumstances, could be properly imposed
under the rules of the RPC, and the MINIMUM term, which shall be within the range of the
penalty next lower to that prescribed by the RPC for the offense.

Prior to the effectivity of the I. S. Law, prison sentences were imposed and fixed as a straight
penalty exactly as provided for under the RPC, modified only by the applicable rules therein, to
wit: Articles 46, 48, 50 to 57, 61, 62, 64, 65, 68, 69, and 71. The MAXIMUM term of the
indeterminate sentence is determined exactly in that manner as if the Indeterminate Sentence
Law had never been enacted. Thus, same rules and provisions (except par. 5 of Art. 62) must be
taken into account in determining the MAXIMUM term of the indeterminate penalty. In
determining the MAXIMUM of the indeterminate sentence, the following questions may be
asked by way of a guide or checklist: (a) What is the imposable penalty for the crime?, (b) Is the
convicted felon a principal, accessory or accomplice?, (c) Was the crime consummated,
frustrated or attempted?, (d) Is the crime committed a complex crime?, (e) Is the commission of
the crime attended by any mitigating or aggravating circumstances?, (f) Is the penalty for the
crime indivisible or composed of three periods, i.e. minimum, medium and maximum periods?,
and (g) Is the accused entitled to a privilege mitigating circumstance?

For instance, if a person is convicted as a principal in the crime of homicide, the imposable
penalty under Art. 249 of the RPC is reclusion temporal, a divisible penalty. In the absence of
any mitigating or aggravating circumstance, the MAXIMUM of the indeterminate penalty will
be taken anywhere within the range of reclusion temporal medium, i.e. from 14 years, 8 months
and 1 day to 17 years and 4 months. The emphasis is on the phrase �within the range� which
means that anywhere within that period may be fixed the MAXIMUM term of the indeterminate
sentence. Thus, the judge, at his sound discretion, may fix it at �14 years, 10 months and 26
days�, �17 years, 2 months and 6 days�, �16 years�, etc.

A greater difficulty in fixing the MAXIMUM term of the indeterminate penalty arises where the
range of the penalty provided for in the RPC is composed of only two periods. For example, in
the crime of estafa under Article 315 of the RPC, the imposable penalty is prision correccional
maximum to prision mayor minimum. In such case, the total number of years included in the two
periods should be divided into three equal periods of time, forming one period for each of the
three portions. Thus: minimum period � 4yrs., 2mos. & 1day to 5yrs., 5mos. & 10days; medium
period � 5yrs., 5mos. & 11days to 6yrs., 8mos. & 20days; and maximum period � 6yrs., 8mos.
& 21days to 8yrs.

In determining the MINIMUM term of the indeterminate sentence, the I. S. Law mandates that
the same be within the range of the penalty next lower to that prescribed by the RPC for the
offense. In this regard, wide latitude of discretion is given to the courts to fix the MINIMUM of
the indeterminate penalty anywhere within the range of the penalty next lower, without regard to
any modifying circumstances and without reference to the periods into which it may be
subdivided. In the previous example involving the crime of homicide, the imposable penalty is
reclusion temporal. The penalty next lower would therefore be prision mayor. Within the range
of prision mayor, the court may fix the MINIMUM of the indeterminate penalty. Thus, the judge
may fix it at �6 years and 1 day�, �6 years and 5 months�, �8 years�, �12 years�, etc.
While ample discretion is given to courts in fixing the MINIMUM of the indeterminate sentence,
the determination thereof nonetheless presents two aspects: first, the more or less mechanical
determination of the extreme limits of the minimum imprisonment period; and second, the broad
question of the factors and circumstances that should guide the discretion of the court in fixing
the minimum penalty within the ascertained limits.

The common practice has been to fix the MINIMUM of the indeterminate sentence exactly one
degree lower to the MAXIMUM arrived at. Thus, for example, if the MAXIMUM fixed by the
court is reclusion temporal medium, the MINIMUM is usually fixed at prision mayor medium,
which is exactly a degree lower. While the MINIMUM arrived at in that case is technically
correct, such nonetheless ignores the theoretical signification of the phrase �penalty next
lower� under the I. S. Law.

Conscientious adherence to the provisions of the I. S. Law is an indispensable component of a

fair and impartial judgment. For what could be the difference of even only one day in the period
of imprisonment of a convict could mean so much to the precious and cherished liberty of the
person.