Chapter Three.

DURATION AND EFFECT

OF
PENALTIES
• Section One – DURATION OF PENALTIES

• Article 27. Reclusion perpetua - The penalty of reclusion perpetua

shall be from twenty years and one day to forth years.
• Reclusion temporal – The penalty of reclusion temporal shall be from
twelve years and one day to twenty years.
• Prision mayor and temporary disqualification – The duration of the
penalties of prision mayor and temporary disqualification shall be
from six years and one day to twenty years, except when the penalty
of disqualification is imposed as an accessory penalty, in which case,
its duration shall be that of the principal penalty.
• Prison correccional, suspension and destierro. – The duration of the
penalties of prison correccional, suspension and destierro shall be from six
moths and one day to six yeaers, except when suspension is imposed as an
accessory penalty, in which case, its duration shall be that of the principal
penalty.

• Arresto mayor – The duration of the penalty of arresto mayor shall be from
one month and one day to six months.

• Arresto menor – The duration of the penalty of arresto menor shall be from
one day to thirty days.

• Bond to keep the peace – The bond to keep the peace shall be required to
cover such period of time as the court may determine. (As amended by RA
7689, approved on Dec. 13, 1993)
Duration of each of different penalties
• 1. Reclusion perpetua – 20 yrs and 1 day to 40 yrs
• 2. Reclusion temporal – 12 yrs and 1 day to 20 yrs
• 3. Prison mayor and temporary disqualification – 6 yrs and 1 day to 12 yrs,
except when disqualification is necessary penalty, in which case its duration
is that of the principal penalty
• 4. Prison coreccional, suspension and destierro – 6 mos and 1 day to 6 yrs,
except when suspension is an accessory penalty, in which case its duration is
that of the principal penalty.
• 5. Arresto mayor – 1 mo. and 1 day to 6 mos
• 6. Arresto menor – 1 day to 30 days
• 7. Bond to keep the peace – the period during which the bond shall be
effective is discretionary on the court
Temporary disqualification and suspension, when imposed as
accessory penalties, have different durations – they follow the
duration of the principal penalty

• Thus, if the penalty imposed is arresto mayor, the duration of the

accessory penalty of suspension of the right to hold office and the
right of suffrage (Art 44) shall be that of arresto mayor.
• Note the clauses in par 3 and 4 which say “except when the penalty
(of disqualification or suspension) is imposed as an accessory penalty,
in which case its duration shall be that of the principal penalty.”
In what cases is destierro imposed?
• In the following:
• 1. Serious physical injuries or death under exceptional circumstances
(Art 247)
• 2. In case of failure to give bond for good behavior (Art 284)
• 3. As a penalty for the concubine in concubinage (Art 334)
• 4. In cases where after reducing the penalty by one or more degrees
destierro is the proper penalty.
Bond to keep the peace is not specifically provided as a penalty
for any felony and therefore cannot be imposed by the court

• Since according to Article 21 no felony shall be punishable by any

penalty not prescribed by law prior to its commission, and bond to
keep the peace is not specifically provided for by the Code for any
felony, that penalty cannot be imposed by the Court.
• Bond for good behavior under Art 284 of the Code, which is required
of a person making a grave or light threat, is not required to be given
in cases involving other crimes.
Article 28. Computation of Penalties. – If the offender
shall be in prison, the term of the duration of the
temporary penalties shall be computed from the day on
which the judgment of conviction shall have become final.

If the offender be not in prison, the term of the duration of

the penalty consisting of deprivation of liberty shall be
computed from the day that the offender is placed at the
disposal of the judicial authorities for the enforcement of
the penalty. The duration of the other penalties shall be
computed only from the day on which the defendant
commences to serve his sentence.
Rules for computation of penalties
• The Director of Prisons or the warden should compute the penalties
imposed upon the convict, observing the following rules:
• 1. When the offender is in prison – the duration of temporary
penalties is from the day on which the judgment of conviction
becomes final.
• 2. When the offender is not in prison – the duration of penalty
consisting in deprivation of liberty, is from the day that the offender is
placed at the disposal of judicial authorities for the enforcement of
the penalty.
• 3. The duration of other penalties – the duration is from the day on
which the offender commences to serve his sentence.
• If the accused, who was in custody, appealed, his service of sentence
should commence from the date of the promulgation of the decision
of the appellate court, not from the date of the judgment of the trial
court was promulgated.
• The service of a sentence is one in prison begins only on the day the
judgment of conviction becomes final.
• The accused could not be considered as committed or placed in jail by
virtue of the decision of the court of appeals, although he was already
in jail when that judgment was received. The fact of his custody as a
mere appellant pending appeal continued, and the receipt of the
decision of the court of appeals did not change the detention of the
accused into service of the judgment. The reading of the sentence of
the court of appeals to the accused was still a necessary step previous
to the actual commitment of the accused.
• Examples of temporary penalties:
• 1. Temporary absolute disqualification
• 2. Temporary special disqualification
• 3. Suspension

• Rules in cases of temporary penalties

• If the offender is under detention, as when he is undergoing
preventive imprisonment, Rule No. 1 applies.
• If not under detention, because the offender has been released on
bail, Rule 3 applies.
• Examples of penalties consisting in deprivation of liberty:
• 1. imprisonment
• 2. destierro

• Rules in cases of penalties consisting in deprivation of liberty

• When the offender is not in prison, Rule No. 2 applies.

• If the offender is undergoing preventive imprisonment, the computation

of the penalty is not from the day that the offender is placed at the
disposal of the judicial authorities for the enforcement of the penalty.
Rule No. 3 applies, that is, the duration of the penalty shall be computed
from the day on which the defendant commences to serve his sentence.
• But the offender is entitled to a deduction of full time or four fifths (4/5)
of the time of his detention.
Reason for Rule No. 1
• The duration of temporary penalties shall be computed only
from the day the judgment of conviction becomes final, and
not from the day of his detention, because under Article 24,
the arrest and temporary detention of the accused is not
considered a penalty.
Article 29. Period of Preventive imprisonment
deducted from term of imprisonment.
• Offenders or accused who have undergone preventive imprisonment
shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have
undergone preventive imprisonment if the detention prisoner agrees
voluntarily in writing to abide by the same disciplinary rules imposed
upon convicted prisoners, except in the following cases:
• 1. When they are recidivists, or have been convicted previously twice
or more times of any crime; and
• 2. When upon being summoned for the execution of their sentence
they have failed to surrender voluntarily.
• If the detention prisoner does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be
credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment.

• Whenever an accused has undergone preventive imprisonment for a

period equal to or more than the possible maximum imprisonment of
the offense charged to which he may be sentenced and his case is not
yet terminated, he shall be released immediately without prejudice to
the continuation of the trial thereof or the proceeding on appeal, if
the same is under review. In case the maximum penalty to which the
accused may be sentenced is destierro, he sall be released after thirty
(30) days of preventive imprisonment.
When there is preventive imprisonment?
• The accused undergoes preventive imprisonment
when the offense charged is nonbailable, or even if
bailable, he cannot furnish the required bail.
The full time or four-fifths of the time during which offenders
have undergone preventive imprisonment shall be deducted from
the penalty imposed

• Offenders who have undergone preventive imprisonment shall be

credited in the service of sentence with the full time during which
they have undergone preventive imprisonment, if the detention
prisoner agrees voluntarily in writing to abide by the same disciplinary
rules imposed upon convicted prisoners.
• If the detention prisoners does not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, he shall be
credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment.
• The appellant should be credited with the full time of his preventive
imprisonment upon a showing that he agreed to abide by the same
disciplinary rules imposed upon convicted prisoners, otherwise, he
shall be credited with four fifths of the time of such preventive
imprisonment.
• Under Article 197 of the Child and Youth Welfare Code (PD 603), the
youthful offender shall be credited in the service of his sentence with
the full time he spent in actual confinement and detention. It is not
necessary that he agreed to abide by the disciplinary rules imposed
upon convicted prisoners.
Illustration of the application of this article
• A was accused of homicide punishable by reclusion temporal.
Because he could not put a bail of P15,000.00, A was detained
pending his trial which lasted for two years. If after trial, A was found
guilty and sentenced to an indeterminate penalty of from 6 years and
1 day to 12 years and 1 day, the full period of A’s preventive
imprisonment of 2 years shall be deducted from 12 years and 1 day, if
he agreed voluntarily in writing before or during the time of his
temporary detention to abide by the same disciplinary rules imposed
upon convicted prisoners. But if A did not agree to abide by the same
disciplinary rules imposed upon convicted prisoners, only 4/5 of the 2
years during which he has undergone preventive imprisonment will
be deducted from 12 years and 1 day.
Must preventive imprisonment be considered
in perpetual penalties?
• This allowance should be made even in the case of
perpetual punishment. This article does not make any
distinction between temporal and perpetual
penalties.
• Thus, even if the accused is sentenced to life
imprisonment, he is entitled to the full time or 4/5 of
the time of the preventive imprisonment.
The credit is given in the service of sentences
“consisting of deprivation of liberty”
• Thus, if the offense for which the offender is undergoing preventive
imprisonment is punishable by imprisonment or a fine, and upon
conviction the court imposed on him only a fine, there is no credit to be
given.
• Illustration:
• A was accused of a violation of Art 143 of the RPC. The penalty
provided for in that Article is prision correccional or a fine from P200 to
P2,000, or both. During the pendency of his trial, A was detained for
ten days. Having been found guilty, A was sentenced to pay a fine of
P500. Can A successfully claim that his fine should be reduced because
of his preventive imprisonment for ten days?
• No, because his sentence does not consist in deprivation of liberty.
Destierro constitutes “deprivation of
property”
• Although destierro does not constitute imprisonment
(which is a typical example of deprivation of liberty), it
is nonetheless a deprivation of liberty. It follows that
Article 29 is applicable when the penalty is destierro.
The accused should be credited with the time during
which he has undergone preventive imprisonment.
Convict to be released immediately if the penalty
imposed after trial is less than full time or four-
fifths of the time of the preventive imprisonment
• Thus, if A has been detained for 5 months and 10 days pending his
trial for less serious physical injuries and after trial he is sentenced to
4 months of arresto mayor, he should be released immediately.
• The accused need not serve the penalty of destierro, for having
satisfied the conditions laid down in Article 29 of the RPC, he should
be entitled to credit for the preventive imprisonment which he has
undergone since August 1970.
Accused shall be released immediately whenever he has undergone
preventive imprisonment for a period equal to or more than the
possible maximum imprisonment for the offense charged.

• Illustration:
• A is accused of the crime of less serious physical injuries punishable
by imprisonment from 1 month and 1 day to 6 months. He has been
under detention in jail for 6 months, pending his trial. In that case, A
should be released immediately, but the trial of his case will continue.
If the maximum penalty to which the accused
may be sentenced is destierro
• Illustration:
• A is accused of a crime punishable by a penalty from arresto menor to
destierro (6 months and 1 day to 6 years). A has been detained for 30
days since his arrest. In that case, A should be released immediately
after 30 days from his arrest and detention, even if the duration of
destierro, the maximum penalty to which he may be sentenced, is
from 6 months and 1 day to 6 years. The reason for this is that in
destierro, the accused sentenced to that penalty does not serve it in
prison. He is free, only that he cannot enter the prohibited area
specified in the sentence.
Offenders not entitled to the full time or four-
fifths of the time of preventive imprisonment
• The following offenders are not entitled to be credited with the full time
or 4/5 of the time of preventive imprisonment:
• 1. Recidivists or those convicted previously twice or more times of any
crime.
• 2. Those who, upon being summoned for the execution of their
sentence, failed to surrender voluntarily.
• Before Art 29 was amended by RA 6127, those who were convicted of
robbery, theft, estafa, malversation of public funds, falsification,
vagrancy or prostitution were not credited with any part of the time
during which they underwent preventive imprisonment. Those offenses
are enumerated in par no. 3 of the original Art 29.
• In view of the elimination in RA 6127 of par no. 3 of the original Art
29, those convicted of robbery, theft, estafa, malversation,
falsification, vagrancy or prostitution are now to be credited in the
service of their sentence with the full time or 4/5 of the time during
which they have undergone preventive imprisonment.

• HABITUAL DELINQUENT IS INCLUDED IN PAR. NO. 1

• A habitual delinquent is not entitled to the full time of 4/5 of the time
of preventive imprisonment, because a habitual delinquent is
necessarily recidivist or that at least he has been “convicted
previously twice or more times of any crime.”
They have failed to surrender voluntarily
• Note that parg no. 2 does not refer to failure to surrender voluntarily
after the commission of the crime. It says, “when upon being summoned
for the execution of their sentence.”
• Example:
• A was arrested for serious physical injuries inflicted on B and, pending his
investigation and trial, he was detained for one year. He was able to go
out on bail after one year. Later, he was summoned for the execution of
his sentence, he having been found guilty. Because he failed to appear,
the court issued an order for his arrest and confiscation of his bond.
Although, he is not covered by parg no. 1 of Art 29, as amended, A will
not be credited in the service of his sentence for serious physical injuries
with one year or four-fifths of one-year preventive imprisonment.
Section Two. Effects of the penalties according to their respective nature

• Article 30. Effects of the penalties of perpetual or temporary

absolute disqualification. - The penalties of perpetual or temporary
absolute disqualification for public office shall produce the following
effects:
• 1. The deprivation of the public offices and employments which the
offender may have held, even if conferred by popular election.
• 2. The deprivation of the right to vote in any election for any popular
elective office or to be elected to such office.
• 3. The disqualification for the offices or public employments and for
the exercise of any of the rights mentioned.
• In case of temporary disqualification, such disqualification as is
comprised in parg 2 and 3 of this Article shall last during the term of
the sentence.

• 4. The loss of all rights to retirement pay or other pension for any
office formerly held.
Article 31. Effects of the penalties of perpetual
or temporary special disqualification. --
• The penalties of perpetual or temporary special disqualification for
public office, profession, or calling shall produce the following effects:

• 1. The deprivation of the office, employment, profession or calling

affected.
• 2. The disqualification for holding similar offices or employments
either perpetually or during the term of the sentence, according to
the extent of such disqualification.
Article 32. Effects of the penalties of perpetual or temporary
disqualification for the exercise of the right of suffrage. -

• The perpetual or temporary special disqualification for the

exercise of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence, according to
the nature of said penalty, of the right to vote in any popular
election for any public office or to be elected to such office.
Moreover, the offender shall not be permitted to hold any
public office during the period of his disqualification.
Article 33. Effects of the penalties of suspension from any
public office, profession, or calling, or the right of suffrage. --

• The suspension from public office, profession, or calling,

and the exercise of the right of suffrage shall disqualify the
offender from holding such office or exercising such
profession or calling or right of suffrage during the term of
the sentence.
• The person suspended from holding public office shall not
hold another having similar functions during the period of
his suspension.
Article 34. Civil Interdiction. –
• Civil interdiction shall deprive the offender
during the time of his sentence of the rights of
parental authority, or guardianship, either as to
the person or property of any ward, or material
authority, of the right to manage his property,
and of the right to dispose of such property by
any act or any conveyance inter vivos.
Article 35. Effects of bond to keep the
peace. -
• It shall be the duty of any person sentenced to give
bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will
not commit the offense sought to be prevented, and
that in case such offense be committed they will pay
the amount determined by the court in its judgment,
or otherwise to deposit such amount in the office of
the clerk of the court to guarantee said undertaking.
• The court shall determine, according to its discretion,
the period of duration of the bond.

• Should the person sentenced fail to give the bond as

required he shall be detailed for a period which shall
in no case exceed six months, if he shall have been
prosecuted for a grave or less grave felony, and shall
not exceed thirty days, if for a light felony.
Outline of the effects of penalties under
Articles 30-35.
• 1. The penalties of perpetual or temporary absolute
disqualification for public office produce the following effects:
• A. Deprivation of public offices and employments, even if by
election.
• B. Deprivation of right to vote or to be elected.
• C. Disqualification for the offices or public employments and
for the exercise of any of the rights mentioned.
• D. Loss of right to retirement pay or pension for any office
formerly held. (Art. 30)
• Note:
• Perpetual absolute disqualification is effective during
the lifetime of the convict and even after the service
of the sentence.
• Temporary absolute disqualification lasts during the
term of the sentence, and is removed after the service
of the same, except (1) deprivation of the public office
or employment; and (2) loss of all rights to retirement
pay or other pension for any office formerly held.
(See Art. 30, par. Following No. 3)
• 2. The penalties of perpetual or temporary special
disqualification for public office, profession or calling
produce the following effects:
• A. Deprivation of office, employment, profession or
calling affected.
• B. Disqualification for holding similar offices or
employments perpetually or during the term of the
sentence. (Art. 31)
• 3. The penalties of perpetual or temporary special
disqualification for the exercise of the right of suffrage
produce the following effects:
• A. Deprivation of the right to vote or to be voted to
any public office.
• B. Cannot hold any public office during the period of
disqualification. (Art 32)
• 4. The penalties of suspension from public office,
profession or calling or the right of suffrage produce
the following effects:
• A. Disqualification from holding such office or
exercising such profession or calling or right of
suffrage during the term of the sentence.
• B. If suspended from public office, the offender
cannot hold another office having similar functions
during the period of suspension. (Art. 33)
• 5. Civil interdiction shall produce the following effects:
• A. Deprivation of the rights of parental authority or
guardianship of any ward.
• B. Deprivation of marital authority.
• C. Deprivation of the right to manage his property and
of the right to dispose of such property by any act or any
conveyance inter vivos.

• Note: But he can dispose of such property by will or

donation mortis causa.
• 6. Bonds to keep the peace.
• A. The offender must present two sufficient sureties who shall
undertake that the offender will not commit the offense sought to
be prevented, and that in case such offense be committed they will
pay the amount determined by the court; or
• B. The offender must deposit such amount with the clerk of court
to guarantee said undertaking; or
• C. The offender may be detained, if he cannot give the bond, for a
period not to exceed 6 months if prosecuted for grave or less grave
felony, or for a period not to exceed 30 days, if for a light felony.
(Art. 35)

• Note: Bond to keep the peace is different from bail bond which is
posted for the provisional release of a person arrested for or
accused of a crime.
Disqualification is withholding of privilege,
not a denial or right
• The manifest purpose of the restrictions upon the right of
suffrage or to hold office is to preserve the purity of elections.
• The presumption is that one rendered infamous by conviction
of felony, or other base offenses indicative of moral turpitude,
is unfit to exercise the privilege of suffrage or to hold office.
The exclusion must for this reason be adjudged a mere
disqualification, imposed for protection and not for
punishment, the withholding of a privilege and not the denial
of a personal right.
Disqualification is withholding of privilege,
not a denial or right
• In this case, the accused, who was sentenced in 1910 by final
judgment to suffer 8 years and 1 day of prison mayor for an
offense and who was not granted plenary pardon, voted at the
general elections held on June 5, 1934. It was held that the right
of the State to deprive persons of the right of suffrage by reason
of their having been convicted of crime, is beyond question.
• The accessory penalty of temporary absolute disqualification
disqualifies the convict for public office and for the right to vote,
such disqualification to last only during the term of the sentence.
Perpetually or during the term of the sentence,
according to the nature of said penalty
• The word “perpetually” and the phrase “during the term of the
sentence” should be applied distributively to their respective
antecedents: thus, the word “perpetually” refers to the perpetual
kind of special disqualification, while the phrase “during the term of
the sentence” refers to the temporary special disqualification. The
duration between the perpetual and the temporary (both special) are
necessarily different because the provision, instead of merging their
durations into one period, states that such duration is “according to
the nature of said penalty” – which means according to whether the
penalty is the perpetual or the temporary special disqualification.
What suspension from exercise of profession
covers

• Suspension, which deprives the offender of the right

of exercising any kind of profession or calling, covers
such calling or trade as for instance that of broker,
master plumber, etc.
Bond to keep the peace is not bail bond
• Bond to keep the peace or for good behavior is
imposed as a penalty in threats. (Art 284) This is
different from a bail bond (Rule 114) Revised Rules of
Criminal Procedure) to secure the provisional release
of an accused person after his arrest or during trial
but before final judgment of conviction.
Art. 36. Pardon; its effects. --
• A pardon shall not work the restoration of the right to
hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the
pardon.
• A pardon shall in no case exempt the culprit from the
payment of the civil indemnity imposed upon him by
the sentence.
Effects of pardon by the President
• 1. A pardon shall not restore the right to hold public office or
the right of suffrage.
• Exception: When any or both such rights is or are expressly
restored by the terms of the pardon.

• 2. It shall not exempt the culprit from the payment of the

civil indemnity. The pardon cannot make an exception to this
rule.
Limitation upon the exercise of the pardoning
power:

• 1. That the power can be exercised only after

conviction;
• 2. That such power does not extend to cases of
impeachment.
Pardon may be granted only “after conviction
by final judgment”
• The “conviction by final judgment” limitation under Section 19, Article
VII of the present Constitution prohibits the grant of pardon, whether
full or conditional, to an accused during the pendency of his appeal
from his conviction by the trial court. Any application therefor, if one
is made, should not be acted upon nor the process toward its grant be
commenced unless the appeal is withdrawn.
• Accordingly, the agencies or instrumentalities of the Government
concerned must require proof from the accused that he has not
appealed from the conviction or that he has withdrawn his appeal.
Such proof may be in the form if a certification issued by the trial
court or the appellate court, as the case may be.
Pardon may be granted only “after conviction
by final judgment”

• The acceptance of the pardon shall not operate as an

abandonment or waiver of the appeal, and the release of an
accused by virtue of a pardon, and the release of an accused
by virtue of a pardon, commutation of sentence, or parole,
before the withdrawal of an appeal shall render those
responsible therefor administratively liable.
Pardon granted in general terms does not
include accessory penalty
• When the principal penalty is remitted by pardon, only the
effect pf that principal penalty is extinguished, but not the
accessory penalties attached to it.
• For instance, a person sentenced to prision mayor (which
carries with it the accessory penalty of perpetual special
disqualification from the right of suffrage) is pardoned by the
President. Such pardon does not restore to the ex-convict
the right to vote, unless such right be expressly restored by
the terms of the pardon.
 Exception:
• When an absolute pardon is granted after the term of imprisonment has
expired, it removes all that is left of the consequences of conviction.
• Although the rule is that a pardon does not restore the right to hold
public office or the right of suffrage, unless expressly stated in the
pardon, the exception is where the facts and circumstances of the case
already show that the purpose of the Chief Executive is precisely to
restore those rights. For instance, when it appears that the respondent
mayor-elect committed the offense more than 25 years ago; that he was
granted conditional pardon in 1915; that thereafter he exercised the
right of suffrage, was elected councilor for the period 1918 to 1921; that
he was elected municipal president three times in succession (1922-
1931), that he was elected mayor in 1940; it is evident that the purpose
in granting him absolute pardon, after the election of 1940 but before
the date fixed by law for assuming office, was to enable him to assume
the position in deterrence to the popular will.
Pardon after serving 30 years does not
remove perpetual absolute disqualification
• Suppose a pardon is granted upon a convict undergoing life
imprisonment after serving 30 years. Is the convict likewise
pardoned from the penalty of perpetual absolute
disqualification which is an accessory to life imprisonment?
• No, because Article 30 is silent as to the maximum duration
of perpetual disqualification and Article 36 expressly
provides that a pardon shall work the restoration of the right
to hold public office or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon.
Pardon by the Chief Executive distinguished
from pardon by the offender party
• 1. Pardon by the Chief Executive extinguishes the criminal liability of
the offender; such is not the case when the pardon is given by the
offended party.
• 2. Pardon by the Chief Executive cannot include civil liability which
the offender must pay; but the offended party can waive the civil
liability which the offender must pay.
• 3. In cases where the law allows pardon by the offended party (Art
344), the pardon should be given before the institution of criminal
prosecution and must be extended to both offenders, whereas,
pardon by the Chief Executive is granted only after conviction and
may be extended to any of the offenders.
Art. 37. Costs – What are included. --
• Costs shall include fees and indemnities in the
course of the judicial proceedings, whether
they be fixed or unalterable amounts previously
determined by law or regulations in force, or
amounts not subject to schedule.
The following are included in the costs:
• 1. Fees; and
• 2. Indemnities, in the course of judicial proceedings.

• COSTS ARE CHARGEABLE TO THE ACCUSED IN CASE OF CONVICTION

• Costs which are expenses of litigation are chargeable to the accused
only in cases conviction. In case of acquittal, the costs are de oficio,
each party bearing his own expenses.
• Thus, of three accused, two were convicted while the third was
acquitted. Only one of the two convicted appealed. His conviction
was affirmed. He was ordered to pay one-third of the costs.
No costs against the Republic, unless the law
provides the contrary
• No costs shall be allowed against the Republic of the Philippines,
unless otherwise provided by law.

• PAYMENT OF COSTS IS DISCRETIONARY

• The payment of costs is a matter that rests entirely upon the
discretion of courts. Appeal will hardly lie to interfere with the
discretion.
• Whether costs should be assessed against the accused lie within the
discretion of the court. The Government may request the court to
assess costs against the accused, but not as a right. No attorney’s
fees shall be taxed as cost against the adverse party.
Art. 38. Pecuniary liabilities – Order of
Payment.
• In case the property of the offender should not be
sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following
order:
• 1. The reparation of the damage caused.
• 2. Indemnification of the consequential damages.
• 3. The fine.
• 4. The costs of the proceedings.
What are pecuniary liabilities of persons
criminally liable?
• They are:
• 1. The reparation of the damage caused.
• 2. Indemnification of the consequential damages.
• 3. Fine.
• 4. Costs of Proceedings.
When is Article 38 applicable?
• It is applicable “in case the property of the offender
should not be sufficient for the payment of all his
pecuniary liabilities.” The order of payment is
provided in this article.
• Hence, if the offender has sufficient or no property,
there is no use for Article 38.
The order of payment of pecuniary liabilities
in Article 38 must be observed.
• Thus, in robbery with violence against persons, A inflicted upon B
serious physical injuries and took the latter’s watch and ring worth
P1,250.00. As a result of the physical injuries inflicted, B was
hospitalized and was not able to attend to his work for one month.
For hospital bills, he paid P500.00. For his failure to earn his salary for
one month, he lost P300.00. If A, after conviction, had only property
not exempt from execution worth P1,000.00, it shall be applied to the
payment of the watch and ring, which could not be returned, because
they are covered by the “reparation of the damage caused” and it is
No. 1 in the order of payment.
The order of payment of pecuniary liabilities
in Article 38 must be observed.
• The hospital bills in the amount of P500.00 and the salary which he failed
to earn in the sum of P300.00 are covered by the “indemnification of the
consequential damages” which is only No. 2 in the order of payment.
• Courts cannot disregard the order of payment.
• When respondent judge permitted the accused to pay the P500.00 fine
ahead and postponed the payment of the indemnity of P1,900.00 to some
other date, he obviously deviated from the express mandates of the law.
Indemnity No. 2 and fine is No. 3 in the order of payment. What was done
was exactly the opposite of what the law ordained. What the court should
have done was to commit the accused to jail for a period not exceeding six
months (Art. 39, par 2) upon the nonpayment on the date scheduled for its
execution of the indemnity imposed by the sentence.
There is reparation in the crime of rape when
the dress of the woman was torn
• In a case the accused was convicted of rape, that part of the
judgment ordering the defendant to pay the value of the
woman’s torn garments is reparation for the damage caused
for her property and is distinct from indemnity.
Liability of conjugal partnership assets
• Fines and indemnities imposed upon either husband
or wife may be enforced against the partnership
assets after the responsibilities enumerated in Article
161 of the Civil Code have been covered, if the spouse
who is bound should have no exclusive property or if
it should be insufficient, which presupposes that the
conjugal partnership is still existing.
Art. 39. Subsidiary penalty. --
• If the convict has no property with which to meet the fine
mentioned in paragraph 3 of the next preceding Article, he shall be
subject to a subsidiary personal liability at the rate of one day for
each eight pesos, subject to the following rules:

• 1. If the principal penalty imposed be prison correccional or arresto

and fine, he shall remain under confinement until his fine referred in
the preceding paragraph is satisfied, but his subsidiary
imprisonment shall not exceed one-third of the term of the
sentence, and in no case shall it continue for more than one year,
and no fraction or part or part of a day shall be counted against the
prisoner.
Art. 39. Subsidiary penalty. --
• 2. When the principal penalty imposed be only a
fine, the subsidiary imprisonment shall not exceed
six months, if the culprit shall have been prosecuted
for a grave or less grave felony, and shall not exceed
fifteen days, if for a light felony.
• 3. When the principal penalty imposed is higher
than prison correccional no subsidiary imprisonment
shall be imposed upon the culprit.
Art. 39. Subsidiary penalty. --
• 4. If the principal penalty imposed is not to be executed by
confinement in a penal institution, but such penalty is of
fixed duration, the convict, during the period of time
established in the preceding rules, shall continue to suffer
the same deprivations as those of which the principal
penalty consists.
• 5. The subsidiary personal liability which the convict may
have suffered by reason of his insolvency shall not relieve
him from the fine in case his financial circumstances should
improve.
What is a subsidiary penalty?
• It is a subsidiary personal liability to be suffered by the convict who
has no property with which to meet the fine, at the rate of one day
for each eight pesos, subject to the rules provided for in Article 39.

• JUDGMENT OF CONVICTION MUST IMPOSE SUBSIDIARY

IMPRISONMENT
• An accused cannot be made to undergo subsidiary imprisonment in
case of insolvency to pay the fine imposed upon him when the
subsidiary imprisonment is not imposed in the judgment of
conviction.
No subsidiary penalty for nonpayment of
other pecuniary liabilities
• As Article 39 is now worded, there is no subsidiary
penalty for nonpayment of:
• 1. the reparation of the damaged caused;
• 2. indemnification of the consequential damages;
• 3. the costs of the proceedings
Retroactive application of RA 5465
• In that it eliminated the pecuniary liabilities of the accused,
other than fine, in Article 39 of the Revised Penal Code, RA
No. 5465 is favorable to the accused. It has retroactive
application.
• RA No. 5466. An Act Amending Article 39 of Act No. 3815
(Revised Penal Code) increasing the rate per day of
subsidiary penalty from two pesos and fifty centavos to
Eight Pesos.
If the convict has no property with which to
meet the fine
• Article 39 applies only when the convict has no property with which
to meet the fine mentioned in paragraph 3 of Article 38.
• It would seem that the convict, who has property enough to meet the
fine and not exempt from execution, cannot choose to serve the
subsidiary penalty, instead of paying for the fine.
• A fine, whether imposed as a single or as an alternative penalty,
should not and cannot be reduced or converted into a prison term.
There is no rule for transmutation of the amount of a fine into a term
of imprisonment.
The word principal should be omitted
• The word “principal” referring to the penalty imposed is not the
correct translation. The words used in Spanish “cuando la pena
impuesta” (when the penalty imposed) should be controlling.

• SUBSIDIARY IMPRISONMENT IS NOT AN ACCESSORY PENALTY

• Subsidiary imprisonment is not an accessory penalty. That subsidiary
imprisonment is a penalty, there can be no doubt, for according to
Article 39, it is imposed upon the accused and served by him in lieu of
the fine which he fails to pay on account of insolvency.
• Therefore, the culprit cannot be made to undergo subsidiary
imprisonment unless the judgment expressly so provides.
Illustration:
• A was convicted of bribery and sentenced to 2 months and 1 day of
arresto mayor as minimum, to 1 year, 8 months and 21 days of prison
correccional, as maximum, to pay fine of P40.00 with the accessories
of the law, and to pay the costs. Since the decision does not provide
for subsidiary imprisonment in the event of inability of A to pay the
fine of P40.00, A cannot be required to serve subsidiary
imprisonment, if he appears to be insolvent.
• Article 73 of the Revised Penal Code provides that “whenever the
courts shall impose a penalty which, by provision of law, carries with it
other penalties, according to the provisions of Articles 40, 41, 42, 43,
44 and 45 of this Code, it must be understood that the accessory
penalties are also imposed upon the convict.” Subsidiary
imprisonment is not covered by any of those articles.
Rules as to subsidiary imprisonment:
• 1. If the penalty imposed is prison correccional or arresto
and fine – subsidiary imprisonment, not to exceed 1/3 of the
term of the sentence, and in no case to continue for more
than one year. Fraction or part of a day, not counted.
• 2. When the penalty imposed is fine only – subsidiary
imprisonment, not to exceed 6 months, if the culprit is
prosecuted for grave or less grave felony, and not to exceed
15 days, if prosecuted for light felony.
• 3. When the penalty imposed is higher than prison
correccional – no subsidiary imprisonment.
Rules as to subsidiary imprisonment:
• 4. If the penalty imposed is not to be executed by
confinement, but of fixed duration – subsidiary penalty shall
consist in the same deprivations as those of the principal
penalty, under the same rules as in Nos. 1, 2 and 3 above.
• 5. In case the financial circumstances of the convict should
improve, he shall pay the fine, notwithstanding the fact that
the convict suffered subsidiary personal liability therefor.
Examples of the application of the rules:
• 1) Rule 1 (Applicable only when the penalty imposed is
imprisonment not exceeding 6 years): A is convicted of
falsification by private individual (Art 172) and sentenced to
4 years, 9 months and 10 days of prison correccional, as the
maximum term of the indeterminate penalty, and to pay a
fine of P4,000.00.
• If A has no property with which to meet the fine, he will have
to suffer subsidiary imprisonment at the rate of one day for
each P8.00 which he cannot pay, but not to exceed 365 days,
computed as follows:
Examples of the application of the rules:
• 365 days in one year
x 4 years
1,460 days in 4 years
270 days in 9 months
10 days
3/1,740 days in 4 years, 9 months and 10 days
580 days, which represent 1/3 of the penalty imposed
P8/P4,000 – amount of fine
500 - days, which are less than 1/3 of the penalty imposed
(580 days)
Examples of the application of the rules:
• Although the quotient of 500 days does not exceed 1/3 of the term
of the penalty imposed, yet A can be made to suffer subsidiary
imprisonment only for 365 days, because “in no case shall it
continue for more than one year.”

• The subsidiary imprisonment not to exceed one-third of the

penalty imposed and not to exceed one year
• When the quotient, after dividing the amount of the fine by P8.00 is
one year or less and such quotient does not exceed 1/3 of the
penalty imposed, the whole period of imprisonment represented by
the quotient must be served by the convict as subsidiary penalty.
Illustration:
• A is convicted of a crime and sentenced to 3 years of
prison correccional, as the maximum term of the
indeterminate penalty, and to pay a fine of P2,000.00
which A could not pay. P2,000.00 / P8.00 = P250 days.
Since 1/3 of the penalty imposed is 1 year and the
quotient is 250 days, which does not exceed 1 year, all
the 250 days imprisonment must be served by A for
nonpayment of the fine, in addition to the penalty of
3 years for the crime he committed.
Illustration:
• Where the defendant was sentenced to 21 days of
imprisonment and a fine of P1,000.00, the subsidiary
imprisonment cannot exceed 7 days. P1,000 / P8.00 =
125 days. But since the subsidiary imprisonment
cannot exceed 1/3 of the penalty imposed, he cannot
be required to serve all the 125 days of imprisonment
for failure to pay the fine.
No subsidiary imprisonment if the indemnity
is less than P8.00
• If the indemnity which the accused should pay less than P8.00, no
subsidiary imprisonment should be imposed for its non-payment.

• 2) Rule 2 (Applicable when the penalty imposed is fine only): A is

sentenced to pay a fine of P800.00 for a crime punishable by a fine
not exceeding P2,000. In case of insolvency, A shall suffer subsidiary
imprisonment at the rate of one day for every P8.00 which he cannot
pay. To divide P800.00 by P8.00 will be 100 days. Since A is
prosecuted for a less grave felony, the fine provided by law being not
less than P200.00 and not more than P6,000.00 (Art 26), the duration
of his subsidiary imprisonment shall be all the 100 days or 3 months
and 10 days, the same not exceeding 6 months.
No subsidiary imprisonment if the indemnity
is less than P8.00
• But suppose A is sentenced to pay a fine of P160.00 for a crime
punishable by a fine not exceeding P200.00, what is the duration of
the subsidiary imprisonment? Why? It cannot exceed 15 days,
because he is prosecuted for a light felony, the fine provided by law
not exceeding P200.00. (Art 9)
When the penalty is fine only, the phrases “if the culprit shall
have been prosecuted for a grave or less grave felony” and “if for
a light felony” are controlling.

• When the penalty prescribed by the Code for the crime is fine only,
the duration of the subsidiary penalty is based on the classification of
the felony.
• When the fine provided by the Code, as the penalty for the offense, is
exactly P200.00, apply Art 9 in determining the classification of the
felony, because that article, in defining light felony, states that the fine
is “not exceeding P200.00”. When the amount of the fine fixed by the
Code as the penalty for the offense is more than P200.00, apply Art
26 to determine the classification of the felony.
Rule 4:
• A is sentenced to 4 years, 9 months and 10 days of
destierro and to pay a fine of P4,000.00. If A has no
money with which to pay the fine, he shall suffer an
additional period of destierro at the same rate of one
day for every P8.00. The same rule is to be applied
when the principal penalty is suspension and fine.
The penalty imposed must be (1) prison correccional, (2)
arresto mayor, (3) arresto menor, (4) suspension, (5) distierro,
or (6) fine only.

• Hence, if the penalty imposed by the court is not one

of them, subsidiary penalty cannot be imposed.
There is no subsidiary penalty, if the penalty imposed
by the court is prision mayor, reclusion temporal, or
reclusion perpetua.
Six years and one day is prision mayor
• Will there be subsidiary imprisonment if the penalty imposed
is 6 years and 1 day?
• NO. When one day is added to 6 years, it raises the prison
sentence from prision correccional to prision mayor; hence
no subsidiary imprisonment.
Additional penalty for habitual delinquency
should be included in determining whether or
not subsidiary penalty should be imposed
• Even if the penalty imposed is not higher than prison
correccional, if the accused is a habitual delinquent
who deserves an additional penalty of 12 years and 1
day of reclusion temporal, there is no subsidiary
imprisonment.
‘If the principal penalty imposed”
• When the penalty prescribed for the offense is
imprisonment, it is the penalty actually imposed by the
Court, not the penalty provided for by the Code, which
should be considered in determining whether or not
subsidiary penalty should be imposed.
• Thus, even if the penalty provided for by the Code for the
crime is prision mayor but there are two mitigating
circumstances without any aggravating circumstance (Art 64,
par 5), and the court imposes 2 years, 11 months and 11
days of prison correccional, subsidiary penalty may be
imposed for nonpayment of the fine.
Penalty not to be executed by confinement,
but has fixed duration
• Under Article 236, the penalty of suspension and fine from P200.oo to
P500.00 shall be imposed upon any person who shall assume the
performance of the duties and powers of any public office without
first being sworn in or having given bond required by law. Such
suspension shall last until he shall have complied with the formalities.
If he cannot pay the fine, although he already complied with the
formalities required by said Article 236, his suspension shall continue
until the amount of the fine is covered at the rate of one day
suspension for every P8.00.
Penalty not to be executed by confinement
and has no fixed duration
• Example:
• The penalty is fine not exceeding P200.00 and censure. (Article 365,
par. 4)
• If the accused cannot pay the fine, there is no subsidiary liability
because the penalty of censure has no fixed duration and is not to be
executed by confinement.
• Rule No. 1, Article 39, specifically mentions the penalty of “prision
correccional or arresto and fine”, Rule No. 2 of the same article
speaks of fine only; and Rule No. 4 mentions penalty of “fixed
duration”.
Penalty not to be executed by confinement
and has no fixed duration
• Hence, when a fine goes with a penalty not to be executed by
imprisonment or destierro and which has no fixed duration,
there is no subsidiary penalty for nonpayment of the fine.
• In a case where the accused was charged with the crime of
slight physical injuries and was sentenced by the trial court to
pay a fine of P30.00 and public censure, with subsidiary
imprisonment in case of insolvency, the Court of Appeals held
that the trial court is not authorized to impose subsidiary
imprisonment in case of insolvency.
The subsidiary penalty is “the same deprivations
as those of which the principal penalty consists”
• If the penalty imposed is imprisonment, the subsidiary penalty must
be imprisonment also.
• If the penalty imposed is destierro, the subsidiary penalty must be
destierro also.
• If the penalty imposed is suspension, the subsidiary penalty must be
suspension also.
• This is so, because paragraph No. 4 of Article 39 states that the
convict “shall continue to suffer the same deprivations as those of
which the principal penalty consists”.
The convict who served subsidiary penalty
may still be required to pay the fine
• It will be noted that paragraph No. 5 of Article 39 as
amended, that the convict who suffered subsidiary penalty
for nonpayment of the fine is not relieved from paying the
fine should his financial circumstances improve.
• Before Article 39 was amended, once a convict suffered
subsidiary penalty for nonpayment of the fine, he was
forever relieved from paying the fine.
Subsidiary imprisonment is not imprisonment
for debt
• The laws which prohibit imprisonment for debt
related to the imprisonment of debtors for liability
incurred in the fulfillment of contracts, but not to the
cases seeking the enforcement of penal statutes that
provide for the payment of money as a penalty for the
commission of crime.
Subsidiary imprisonment is not imprisonment
for debt
• Thus, the civil liability arising from libel is not a “debt”
within the purview of the constitutional provision
against imprisonment for nonpayment of “debt”. Insofar
as said injunction is concerned, “debt” means an
obligation to pay a sum of money “arising from
contract”, express or implied. In addition to being part
of the penalty, the civil liability in libel arise from a tort
or crime; hence from law. As a consequence, the
subsidiary imprisonment for nonpayment of said liability
does not violate the constitutional injunction.
No subsidiary penalty in the following cases:

• 1. When the penalty imposed is higher than prison

correccional.
• 2. For failure to pay the reparation of the damage
caused, indemnification of the consequential
damages, and the costs of the proceedings.
• 3. When the penalty imposed is fine and a penalty
not to be executed by confinement is a penal
institution and which has no fixed duration.
Subsidiary imprisonment under special law
• Act No. 1732 of the Philippine Commission provides
for the rules in case the court shall impose a fine as
the whole or as a part of the punishment for any
criminal offense made punishable by any special law.
Rules:
• 1. When the court merely imposes a fine, the subsidiary
liability shall not exceed 6 months, at the rate of one day of
imprisonment for every P2.50.

• 2. In case both fine and imprisonment are imposed, the

subsidiary liability shall not exceed 1/3 of the term of
imprisonment, and in no case shall it exceed 1 year.

• 3. In case the imprisonment is for more than 6 years in

addition to a fine, there shall be no subsidiary imprisonment.
Rules:
• 4. When a fine is imposed for violation of any municipal
ordinance or ordinances of the City of Manila, the rate is one
day for every P1.00, until the fine is satisfied, provided, that
the total subsidiary imprisonment does not exceed 6
months, if the penalty imposed is fine alone; and not more
than 1/3 of the principal penalty, if it is imposed together
with imprisonment.