GRADUATION OF PENALTIES
Nang Kay, 88 Phil. 515
-determine the penalty next is higher in Degree or next lower
in degree.
-Determine the penalty actually imposable
-Determine also the jurisdiction
-In graduation you can also determine that within 1 degree
there is a minimum. Medium and maximum. One degree is
usually composed of 3 periods.
Ex:
Reclusion Temporal- for homicide, there is reclusion
temporal-Medium, Minimum, Maximum
-1 lower degree for Reclusion temporal is Prision Mayor.
-The penalty for frustrated is 1 degree lower than the
consummated.
Ex: Homicide
ISL (R.A. 4103, AS AMENDED BY ACT NO. 4225)
Why “Indeterminate Sentence”
-to allow the accused to go out of detention earlier than what
the RPC allowed him to serve.
-It will determine the Minimum and Maximum indeterminate
sentence.
-Once the accused reached the minimum indeterminate
sentence she/he can apply for parole.
Ex: Homicide you were convicted of it. Under the RPC the
imposable sentence is 15 years reclusion temporal medium as
maximum. Aside from that the Indeterminate sentence
required the minimum to be determine also. So, since you
need to check the 1 degree lower. Thereby, the court will
make your imposable penalty be 15 years temporal medium
and 8 years prision mayors minimum indeterminate sentence.
- After serving the minimum, the convict may be released on
parole, OR if he is not fit for release,
he shall continue serving his sentence until the end of the
maximum [REYES, Book 1]
Mandatory - Application of ISLAW is mandatory because
the law employs the phrases “convicts
shall be sentenced” and “the court shall sentence the accused
to an indeterminate sentence.”
[People v. Yu Lian, CA 40 OG 4205
Applicability
General Rule: Applicable to those sentenced with
imprisonment exceeding one (1) year.
¨ • Application of the law is based on the penalty actually
imposed. Hence, in a case where the court imposes a penalty
of prisión correccional minimum (6 months and 1 day),
ISLAW does not
apply [People v. Moises, G.R. No. L-32495 (1975
Exceptions:
Not applicable when unfavorable to the accused [People v.
The following are excluded from coverage: (isa lang ang
penalty)
a. Convicted of Piracy
b. Habitual delinquents (but applies to recidivists).
c. Convicted of offenses punished with death penalty or Life
imprisonment. However, when there are two mitigating
circumstances, despite the
offense being punishable by reclusion temporal to death,
ISLAW applies. [People v. Roque, 90 Phil 142, 146 (1951)
¨ The ISL does not also apply to those convicted and
sentenced to reclusion perpetua, suspension and destierro.
[People v. Lampaza, 319 SCRA
112 (1999), People v. Oyanib
d. Those who shall have escaped from confinement or Evaded
service of sentence
e. Those whose maximum term of imprisonment does Not
exceed one year.
f. Those sentenced to the penalty of Destierro or Suspension.
g. Convicted of misprision of Treason, Rebellion, Espionage,
Sedition.
h. Convicted of Treason, conspiracy or proposal to commit
treason
i. Those who Violated the terms of conditional pardon granted
to them by the Chief Executive
j. Those who had been sentenced by final Judgment at the time
of the approval of this law. (65)
¨ person convicted of terrorism, planning, training, preparing
and facilitating the commission of terrorism, conspiracy to
commit terrorism,
Recruitment
ISL for RPC crimes:
Maximum IS: Penalty which could be properly imposed
under the rules of the RPC, in view of the attending
circumstances.
Basis: Imposable penalty (after considering mitigating or
aggravating circumstances under Art. 64).
Minimum IS: Court’s discretion, provided that the minimum
term is anywhere within the range of the penalty next lower to
that prescribed by the RPC for the offense, without regard to
its periods.
Basis: Prescribed penalty, not the imposable penalty.
Ex: Homicide there is 1 mitigating the penalty under the RPC
is reclusion temporal minimum that would be the maximum.
Since you already determine the maximum. The minimum
indeterminate sentence would be 1 degree lower than the
maximum so that would be prision correctional, since the
court has now the discretion they will be the one who will
identity the period if it is medium, minimum or maximum
prision correcional.The court will now have the dicretion in
imposing the minimum indterminate sentence.
ISL for Special Laws:
(You do not apply RPC)
Maximum IS: Maximum term shall not exceed the maximum
fixed by the special law. Presence of attending circumstances 1. Homicide; RT (if 1 mitigating)
does not affect the imposition of the penalty.
Exception: When the special law adopts the technical 2. Indirect Assault; (one aggravating)
nomenclature and signification of PC Med
penalties under RPC. PC Min to

Minimum IS: Minimum term shall not be less than minimum 3. Light Coercions;
specified by the law. Arresto Mayor Minimum (no M or A)
Arresto Menor maximum- lower
Exception: When the special law adopts the technical Arresto Maximum- higher
nomenclature and signification of penalties under RPC.

Factors in Fixing Minimum Penalty [People v. Ducosin, 59

Phil 109, 118 (1933)]

¨ 1. Criminal as an individual

¤a. Age of the criminal

¤b. General health and physical conditions
¤c. Mentality, heredity and personal habits
¤d. Previous conduct, environment, mode of life, and criminal
record
¤e. Previous education (intellectual & moral)
¤f. Proclivities and aptitudes for usefulness or injury to society
¤g. Demeanor during trial and attitude with regard to the crime
committed
¤h. Gravity of the offense

Rules in Authorizing Prisoner to be Released on Parole

1. Whenever the 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 for
release, the Board may authorize his release on parole,
upon terms and conditions as may be prescribed.

2. Whenever the prisoner on parole during the period of

surveillance violates any of the conditions, Board may
issue an order for his arrest where the prisoner shall serve
the unexpired portion of the maximum sentence.
[Secs. 6 and 8, R.A. 4103, as amended by Act No. 4225]

3. Even if the 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. [REYES, Book
1]

Degree: One entire penalty; one whole penalty or one unit of

the penalties enumerated in the graduated scales provided for
in Art. 71. EX: RT

Period: One of three equal portions, called minimum, medium

and maximum of a divisible penalty. EX: RT Medium

Definition of Terms [Sec. 3, P.D. 986 Amended by R.A.

10707]

Examples: 1. Probation – a disposition under which a defendant,

after conviction and sentence, is released subject to
conditions imposed by the court and to the supervision of
a probation officer.
-If the penalty being imposed to you is 6 years and below you
can qualify for probation. (Hindi ka makukulong basta
pumayag yung court na magprobation ka)
2. Probationer – person placed on probation
3. Probation officer – one who investigates for the court
a referral for probation or supervises a probationer or
both.
Probation is not a right but a privilege subject to the
discretion of the court. The discretion is exercised
primarily for the benefit of society as a whole and only
secondarily for the personal advantage of the accused.
[Amandy v. People, G.R. No. L-76258 (1988)]
Probation may be granted whether the sentence imposes
a term of imprisonment or a fine only.
Disqualified Offenders
1. Those sentenced to serve a max. term of more than six (6)
years. [Sec. 9(a), P.D. 968].
2. Crimes against national security convicts [Sec. 9(b), P.D.
968].
3. Those previously convicted by final judgment of an
offense punished by imprisonment of more than six (6)
months and one (1) day and/or fine of more than one
thousand pesos (P1,000.00) [Sec. 9(c), P.D. 968]. EXCON
Ex: May kaso kana dati like less serious physical injury then
pinatawan ka ng 10 months hindi ka nagprobation noon. Then
nagkaroon ka ulit ng bagong kaso then yung penalty na
pinataw sayo is eligible for probational. Pwede ka ba
magprobation. NO! because you have been convicted before
in case punishable by more than 6 months.
Ex 2: minulta ka noon ng 2000 pesos, ngayon may penalty ka
na 1,000 pwede ka ba magprobation? HINDI na!
4. Those who have been once in probation under this
Decree [Sec. 9(d), P.D. 968].
5. Those who are already serving sentence at the time the
substance provisions of this Decree became applicable
pursuant to Section 33 hereof [Sec. 9(e), P.D. 968].
6. Drug trafficker and pushers, regardless of penalty
imposed by court, cannot avail of Probation Law privileges, as
amended by the Comprehensive Dangerous Drugs Act of
2002. [Sec. 24. R.A. 9165] PWEDE SA IBANG DRUG
OFFENSES.
- BUT kung use and possession of drug paraphernalia
PWEDE!
The filing of an application for probation is deemed a
waiver of right to appeal.
Reasons:
(1) Appeal and Probation are mutually exclusive remedies as
they rest on diametrically opposed legal positions. The
application for probation is an admission of guilt on the
part of an accused for the crime which led to the
judgment of conviction [Almero vs. People, 718 SCRA
698];
(2) Section 7, Rule 120, of the Rules on Criminal Procedure is
explicit that a judgment in a criminal case becomes final when
the accused has applied for probation. This is totally in accord
with Section 4 of Presidential Decree No.968 (Probation Law
of 1976, as amended), which in part provides that the filing of
an application for probation is deemed a waiver of the right to
appeal. Thus, there was no more opportunity for petitioner to
exercise her right to appeal, the judgment having become final
by the filing of an
application for probation. [Vicoy vs. People, 383 SCRA 707]
Section 4 PD 968 was amended as follows: “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 non-probationable 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 becomes final. The application for probation
based on the modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-
probationable penalty was rendered, or in the trial court where
such case has since been re-raffled. In a case involving several
defendants where some have taken further appeal, the other
defendants may apply for probation by submitting a written
application and attaching thereto a certified true copy of the
judgment of conviction.”
Ex: You have been convicted in the case of Homicide, and you
are convicted as principal so your penalty is reclusion
temporal thereby you are not eligible for probational because
your penalty is more than 6 years. You filed an petition for
appeal then the appellate court decided to modify your
conviction contending that you are just an accessory. The
appellate court modified your penalty into prision
correctional since the penalty for an accessory is 2 lower
degree so that was prision correctional. You are now
qualified for probation.
When Appeal Bars Grant of Probation
1. When the accused is convicted by the trial court of a
crime where the penalty imposed is within the
probationable period or a fine, and the accused files a
notice of appeal; and
Ex: You have been convicted of a crime and the penalty is
prision correctional at the MTC. You appeal at the RTC. Then
the RTC affirmed your conviction. You now claimed that you
are eligible for the probation. Can you avail it! No! because
you can only avail the probation on the earliest opportunity
when you are qualified for it, because when you filed the
appeal that means you already waived your right for
probation.
2. When the accused files a notice of appeal which puts the
merits of his conviction in issue, even if there is an
alternative prayer for the correction of the penalty
imposed by the trial court or for a conviction to a lesser
crime, which is necessarily included in the crime in
which he was convicted where the penalty is within the
probationable period.[Dimakuta v. People, G.R. No.
206513 (2015)]
Grant of Probation is Discretion of the Court
1.Even if a convicted person falls within the classes of those
qualified for probation, the grant of probation is not automatic
or ministerial.[Amandy vs. People, G.R. No. L- 76258 (1988)
2. An order placing 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." [Baclayon v.Mutia, G.R. No. L-
59298
Reasons for Denying Probation [Sec. 8, P.D. 968]
1. The offender is in need of correctional treatment best
provided thru commitment to an institution.
2. There is undue risk that the offender will commit another
offense during the probation period.
3. Probation will depreciate the seriousness of the offense
committed. Ex:
Effects of Grant of Probation
1.The execution of sentence shall be suspended for such
period and upon such terms and conditions as the trial court
may deem best [Sec. 4, P.D. 968]
2. Probation does not extinguish civil liability, as it only
affects the criminal aspect of the case. [Budlong v. Apalisok,
G.R. No. L- 60151 (1983)
-Ex: You were penalized for slight physical injury. Kahit
nakaprobation ka magbabayad ka pa rin ng exemplary and
moral damages doon sa victim mo te! Walang exemption
yorn.
3. Accessory penalties are deemed suspended [Baclayon vs.
Mutia, G.R. No. L- 59298 (1984) proper penalty imposable is
within the probationable period. [Dimakuta v. People, G.R.
No. 206513 (2015)]
NOTE: An order granting or denying probation shall not be
appealable [Sec. 4 P.D. 968]
Conditions of Probation [Sec. 10, P.D. 968]
Mandatory Conditions. Probation orders shall contain
conditions requiring probationer to:
a. Present himself to his supervising probation officer at the
place specified in the order within 72 hours from receipt of
said order; and
b. Report to the probation officer at least once a month at the
time and place specified by said officer.
Violation of Probation Order
*Upon the failure of the probationer to comply with any of the
conditions prescribed in the order, or upon his commission of
another offense, he shall serve the penalty imposed for the
offense under which he was placed on probation [REYES,
Book 1].
Arrest [Sec. 15, P.D 968]
At any time during the probation, the court may issue a
warrant to arrest the probationer for violation of the conditions
of the probation. Once arrested and detained, probationer shall
be brought to court for a hearing of the violation charged. The
defendant may be admitted to bail pending such hearing.
Termination of Probation
Order of Final Discharge [Sec. 16, R.A. 10707] An order of
final discharge of the probationer shall be issued by the Court:
1. After the period of probation; and
2. Upon consideration of the report and recommendation of
the probation officer, upon finding that probationer fulfilled
the terms and conditions of his probation
NOTE: The probationer and the probation officer shall each
be furnished with a copy of such order.
Effect of Final Discharge [Sec. 16, R.A. 10707] The final
discharge of the probationer shall operate to:
¨ 1. Restore to him all civil rights lost or suspended as a result
of his conviction;and
¨ 2. Totally extinguish his criminal liability as to the offense
for which probation was granted.
Termination of Period, not the same as Expiration of
Probation Period
* The expiration of the probation period alone does not
automatically terminate probation; probation is not
coterminous with its period. There must first be an order of
final discharge issued by the court, based on the report and
recommendation of the probation officer. [Bala v. Martinez,
G.R. No. 67301(1990)]