BAR EXAM QUESTIONS FROM 1976-2007 DATA BANK PROBATION LAW, INDETERMINATE SENTENCE LAW, RECOGNIZANCE AND PARDON
1. While serving his sentence, Macky entered the prohibited area and had a pot session with Ivy (Joy’s sister). Is Macky entitled to an indeterminate sentence in case he is found guilty of use of prohibited substances? Explain your answer.
SUGGESTED ANSWER:
No, Macky is not entitled to the benefit of the Indeterminate Sentence Law (Act 4103, as amended) for having evaded the sentence which banished or placed him on destierrro. Sec. 2 of the said law expressly provides that the law shall not apply to those who shall have “evaded sentence”.
ALTERNATIVE ANSWER:
No, because the penalty for use of any dangerous drug by first offender is not imprisonment but rehabilitation in a government center for a minimum period of six (6) months (Sec. 15, R.A. 9165). The Indeterminate Sentence Law does not apply when the penalty is imprisonment not exceeding one year. 2. a. Enumerate the differences between pardon and amnesty 2.5% b. Under Presidential Proclamation No. 724, amending Presidential Proclamation No. 347, certain crimes are covered by the grant of amnesty. Name at least 5 of these crimes. 2.5% c. Can former DSWD Secretary Dinky Soliman apply for amnesty? How about columnist Randy David? (You are supposed to know the crimes or offenses ascribed to them as published in almost all newspapers for the past several months.) 2.5% d. General Lim and General Querubin of the Scout Rangers and Philippine Marines, respectively, were charged with the conduct unbecoming an officer and a gentleman under the Articles of War. Can they apply for amnesty? 2.5%
SUGGESTED ANSWER: a. The differences between pardon and amnesty are-
In pardon: The convict is excused from serving the sentence but the effects of conviction remain unless expressly remitted by the pardon; hence, for pardon to be valid there must be a sentence already final and executory at the time the same is granted. Moreover, the grant is in favor of individual convicted offenders, not to a class of convicted offenders; and the crimes subject of the grant may be common crimes or political crimes. Finally, the grant is a private act of the Chief Executive which does not require the concurrence of any other public officer or office. In amnesty: The criminal complexion of the act constituting the crime is erased, as though such act was innocent when committed; hence, the effects of the conviction are obliterated. Amnesty is granted is in favor of a class of convicted offenders, not to individual convicted offenders; and the crimes involved are generally political offenses, not common crimes. Amnesty is a public act that requires the conformity or concurrence of the Philippine Senate. b. Crimes covered by the grant of amnesty under Presidential Proclamation No. 724: (at least 5) a. Rebellion or insurrection b. Coup d’ etat c. Conspiracy and proposal to commit rebellion, insurrection or coup d’ etat d. Disloyalty of public officers or employs e. Inciting to rebellion or insurrection f. Sedition g. Conspiracy to commit sedition h. Inciting to sedition i. Illegal assembly j. Illegal association k. Direct Assault l. Indirect Assault m. Resistance and disobedience to a person in authority or agents of such persons n. Tumults and other disturbances of public order o. Unlawful use of means of publication and unlawful utterances p. Alarms and scandals q. Illegal possession of firearms, ammunitions, and explosives, committed in furtherance of, incident to, or in connection with the crimes of rebellion and insurrection r. Violation of Articles of War: r.1 Art. 59 (Desertion)
r.2 r.3 r.4 r.5 r.6 gentleman) r.7
Art. 62 (Absence without Leave) Art. 67 (Mutiny or Sedition) Art. 68 (Failure to Suppress Mutiny or Sedition) Art. 94 (Various Crimes) Art. 96 (Conduct unbecoming an officer and Art. 97 (General Article)
ANOTHER SUGGESTED ANSWER:
Crimes covered by the grant of amnesty are: (at least 5) Illegal assembly; Alarms and scandal; Illegal association; Disloyalty by public officers/employees; Illegal possession of firearms.
SUGGESTED ANSWER: c. Both Dinky Soliman and Randy David mat apply for amnesty because the crime respectively imputed to them are crimes against public order which are among the crimes covered by the amnesty. d. Yes, General Lim and General Querubin of the Scout Rangers and Philippine Marines can apply for amnesty. Violation of the conduct unbecoming an officer and a gentleman under Article 96 of the Articles of War is explicitly enumerated in Section 1 of the Presidential Proclamation No. 724 as one of the crimes that are covered by the grant of amnesty. 3. There are at least 7 instances or situations in criminal cases wherein the accused, either as an adult or as a minor, can apply for and/or be granted a suspended sentence. Enumerate at least 5 of them. 2.5%
SUGGESTED ANSWER: Instances when sentence may be suspended are: (at least 7 instances) a) Where the accused became insane before sentence could be promulgated (Art. 79, RPC) b) Where the offender, upon conviction by the trial court, filed an application for probation which has been granted (Baclayon v. Mutia,
129 SCRA 148 [1984]);
c) Where the offender needs to be confined in a rehabilitation center because of drug-dependency although convicted of the crime charged; d) Where the offender is a youthful offender under Art. 192, PD 603, otherwise referred to as the Child and Youth Welfare Code; and e) Where the crime was committed when the offender is under 18 years old of age and he is found guilty thereof in accordance with Rep. Act 9344, otherwise referred to as the “Juvenile Justice and Welfare Act of 2006”, but the trial court subjects him to appropriate disposition measures as prescribed by the Supreme Court in the Rule on the Juveniles in Conflict with the Law. f) The death sentence shall be suspended upon a woman while she is pregnant within one year after delivery. (Art. 83, Revised Penal Code) g) Section 66 of RA 9165 (Comprehensive Dangerous Drugs Act of 2002) SECTION 66. Suspension of Sentence of a First-Time Minor Offender. - An excuse who is over fifteen (15) years of age at the time of the commission of the offense mentioned in Section 11 of this Act, but not more than eighteen (18) years of age at the time when judgment should have been promulgated after having found guilty of the said offense, may be given the benefits of a suspended sentence, subject ti the following conditions: (a) He /she has not been previously convicted of violating any provision of this Act, or of the Dangerous Drugs Act of 1972, as amended; or of the Revised Penal Code; or of any special penal laws; (b) He/she has not been previously committed to a Center or to the care of a DOH-accredited physician; and (c) The Board favorably recommends that his/her sentence be suspended. xxx” “SECTION 66. Suspension of Sentence of a First-Time Minor Offender. -An Accused
through the events
96 [1999]).
(h) when the sentence of death, it execution may be suspended or postponed by the Supreme Court, issuance of a TRO upon the ground of supervening
(Echegaray v. Secretary of Justice, 301 SCRA
4. (1) Harold was convicted of a crime defined and penalized by a special penal law where the imposable penalty is from 6 months, as minimum, to 3 years, as maximum. State with reasons whether the court may correctly impose the following penalties: a) a straight penalty of 10 months; b) 6 months o, as minimum, to 11 months, as maximum; c) a straight penalty of 2 years. (5%)
SUGGESTED ANSWER: (1) a) The court may validly impose a straight penalty of 10 months’ imprisonment because the penalty prescribed by the law is imprisonment of 6 months to 3 years, and the Indeterminate Sentence Law does not apply when the penalty imposed is imprisonment which does not exceed one year. b) A prison term of 6 months as minimum, to 11 months, as maximum may not be imposed by the court because the Indeterminate Sentence Law does not apply when the penalty imposed as maximum of the sentence in imprisonment which does not exceed one (1) year. Obviously the Indeterminate Sentence law has been applied where the sentence imposed reflects a minimum and a maximum. c)The court may not validly impose a straight penalty of two years because the Indeterminate Sentence Law requires the court to set a minimum and a maximum of the sentence where the imprisonment to be imposed already exceeds one (1) year, unless the offender is disqualified from the benefits of the said law.
SEGGESTED ALTERNATIVE ANSWER: (1) a) Yes, the trial Court may impose a straight penalty of ten months. The indeterminate Sentence Law applies to crimes punished either by the Revised Penal Code and by special laws, where the maximum period of imprisonment exceeds one year.
b) No, because the Indeterminate Sentence Law cannot be applied where the maximum period of imprisonment imposed, which is eleven months, does not exceed one year. c)No, because a straight penalty may be imposed only up to a maximum imprisonment of one (1) years. Here, it is two years. Hence, there is a need to impose an indeterminate sentence, the minimum terms of which shall not be less than 6 months while the maximum terms shall not exceed 3 years. (People v. Peña, 80 SCRA
589[1997]).
5. Maganda was charged with violation of Bouncing Checks Law (BP 22) punishable by imprisonment of not less than 30 days but not more than 1 year or a fine of not less than but not more than double the amount of the check, which fine shall not exceed P200,000.00 or both. The court convicted her of the crime and sentenced her to pay a fine of P50,000.00 with subsidiary imprisonment in case of insolvency, and to pay the private complainant the amount of the check. Maganda was unable to pay the fine but filed a petition for probation. The court granted the petition subject to the condition, among others, that she would not change her residence without the court’s prior approval. a) What is the proper period of probation? b) Supposing before the Order of Discharge was issued by the court but after the lapse of the period of probation, Maganda transferred residence without prior approval of the court. May the court revoke the Order of Probation and order her to serve the subsidiary imprisonment? Explain (5%)
SUGGESTED ANSWER: (1) a) The Period of probation shall not be less than the total number of days of subsidiary imprisonment or more than twice the said number of days as computed at the rate established under the Revised Penal Code, which is one (1) day imprisonment for every P8.00 fine but not to exceed six (6) months. (P.D. 968, Sec. 14[b] (establishing a Probation System) in correlation with Art. 39, RPC) b) Yes, the court may revoke the Order of Probation and order the convicted accused to serve subsidiary imprisonment, because she violated the condition of her probation before the Order of Discharge was issued by the court. The conditions of probation are not coterminous with the period of probation; such conditions continue
even after the period of probation had ended and thus requires faithful compliance or fulfillment, for as long as the court which placed the convict on probation has not issued the Order of Discharge that would release her from probation. (Bal v. Martinez, 181 SCRA
459 [1990]).
6. PX was convicted and sentenced to imprisonment of thirty days and a fine of one hundred pesos. Previously, PX was convicted of another crime for which the penalty imposed to him was thirty days only. Is PX entitled to probation? Explain briefly. (5%)
SUGGESTED ANSWER:
Yes, PX may apply for probation. His previous conviction for another crime with a penalty of thirty days’ imprisonment or not exceeding one (1) month does not disqualify from applying for probation; the penalty for his present conviction does not disqualify him either from applying for probation, since the imprisonment does not exceed six (6) years (Sec. 9, Pres. Decree No. 968). 7. (a) A was 2 months below 18 years of age when he committed the crime. He was charged with the crime of 3 months later. He was 23 when he was finally convicted and sentenced. Instead of preparing to serve a jail term, he sought a suspension of the sentence on the ground that he was a juvenile offender. Should he be entitled to a suspension of sentence? Reasons (b) Can juvenile offenders, who are recidivists, validly ask for suspension of sentence? Explain.
SUGGESTED ANSWER:
(a) No, A is not entitled to a suspension of the sentence because he is no longer a minor at the time of promulgation of the sentence. For purposes of suspension of sentence, the offender’s age at the time of promulgation of the sentence is the one considered, not his age when he committed the crime. So although A was below 18 years old when he committed the crime, but he was no longer 23 years old when sentenced, he is no longer eligible for suspension of the sentence. (b) Yes, so long as the offender is still a minor at the time of the promulgation of the sentence. The law establishing Family Courts,
Rep. Act 8369, provides to this effect; that if the minor is found guilty’ the court should promulgate the sentence and ascertain any civil liability which the accused may have incurred. However, “Child and Youth Welfare Code” (RA 8369, Sec. 5a). It is under PD603 that an application for suspension of the sentence is required and thereunder it is one of the conditions for suspension of sentence that the offender be a first time convict: this has been displaced by RA 8369. 8. When would the Indeterminate Sentence Law be inapplicable?
SUGGESTED ANSWER: The Indeterminate Sentence Law is not applicable to: (1) Those persons convicted of offenses punished with death penalty of life-imprisonment or reclusion perpetua; (2) Those convicted of treason, conspiracy or proposal to commit treason; (3) Those convicted of misprision of treason, rebellion, sedition or espionage; (4) Those convicted of piracy; (5) Those who are habitual delinquents; (6) Those who shall have escaped from confinement or evaded sentence; (7) Those who having been granted conditional pardon by the Chief Executive shall have violated the terms thereof; (8) Those whose maximum term of imprisonment does not exceed one year; (9) Those already sentenced by final judgment at the time of approval of this Act; and (10) Those whose sentence imposes penalties which do not involve imprisonment like, destierro. 9. Juan was convicted of the Regional Trial Court of a crime and sentenced to the penalty of imprisonment for a minimum of eight years. He appealed both his conviction and the penalty imposed upon him to the Court of Appeals. The appellate court ultimately sustained Juan’s conviction but reduced his sentence to a maximum of four years and eight months’ imprisonment. Could Juan forthwith file an application for probation? Explain
SUGGESTED ANSWER:
No, Juan can no longer avail of the probation because he appealed from the judgment of conviction of the trial court, and therefore, cannot apply for probation anymore. Section 4 of the Probation Law, as amended, mandates
that no application for probation shall be entertained or granted if the accuse has perfected an appeal from the judgment of conviction. 10. How are the maximum and minimum terms of the Indeterminate sentence for offenses punishable under Revised Penal Code determined? (3%)
SUGGESTED ANSWER:
For crimes punished under the Revised Penal Code, the maximum term of the indeterminate sentence shall be the penalty properly imposable under the same Code after considering the attending mitigating and/or aggravating circumstances according to Art. 64 of said Code, the minimum term of the same sentence shall be fixed within the range of the penalty next lower in degree to that prescribed for the crime under the said Code. 11. Under the law, what is the purpose for fixing the maximum and minimum terms of the indeterminate sentence? (2%)
SUGGESTED ANSWER:
The purpose of the law in fixing the minimum term of the sentence is set the grace period at which the convict may be released on parole from imprisonment, unless by his conduct he is not deserving of parole and thus he shall continue serving his prison term in jail but in no case to go beyond the maximum term fixed in the sentence. 12. A was charged with homicide. After trial, he was found guilty and sentenced to six (6) years and one (1) day in prision mayor, as minimum to twelve (12) years and one (1) day of reclusion temporal, as maximum. Prior to his conviction, he had been found of guilty and vagrancy and imprisoned for ten (10) days of arresto menor and fined fifty pesos (50.00). Is he obliged for probation? Why? (3%)
SUGGESTED ANSWER:
No, he is not. The benefits of the Probation Law (PD 968, as amended) does not extend to those sentenced to serve a maximum term of imprisonment of more than six years (Sec. 9a). It is of no moment that in his previous conviction A was given a penalty of only ten (10) days of arresto mayor and a fine of P50.00. 13. May a probationer appeal from the decision revoking the grain of probation or modifying the terms and conditions of thereof? (2%)
SUGGESTED ANSER:
No. Under Section 4 of the Probation Law, as amended, an order granting or denying probation is not appealable. 14. A, a subdivision developer, was convicted by the RTC of Makati for failure to issue the subdivision title to a lot buyer despite full payment of the lot, and sentenced to suffer one-year imprisonment A appealed the decision of the RTC to the Court of Appeals but his appeal was dismissed. May A still apply for probation? Explain. (5%)
SUGGESTED ANSWER:
No, A is no longer qualified to apply for probation after he appealed from the judgment of conviction by the RTC. The Probation Law (PD 968, as amended by PD 1990) now provides that no application for probation shall be entertained or granted if the accused has perfected an appeal form the judgment of conviction (Sec. 4, PD 968). 15. Andres is charged with an offense defined by a special law. Thepenalty prescribed for the offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon arraignment, he entered a plea of guilty. In the imposition of the proper penalty, should the Indeterminate Sentence Law be applied? If you were the judge trying the case, what penalty would you impose on Andres? (4%)
SUGGESTED ANSWER:
Yes, the Indeterminate Sentence Law should be applied because the minimum imprisonment is more than one (1) year. If I were the judge, I will impose an indeterminate sentence, the maximum of which shall not exceed the maximum fixed by law and the minimum shall not be less than the minimum penalty prescribed by the same. I have the discretion to impose the penalty within the said minimum and maximum. 16. The accused was found guilty of grave oral defamation in sixteen (16) informations which were tried jointly and was sentenced in one decision to suffer in each case a prison term of one (1) year and one (1) day to one (1) year and eight (8) months of prision correctional. Within the period to appeal, he filed an application for probation under the Probation Law of 1976, as amended. Could he possibly qualify for probation?
ANSWER:
Yes. In Francisco vs. Court of Appeals, 243 SCRA 384, the Supreme Court held that in the 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 the total term. It is enough that each of the prision terms does not exceed six years. The imposed, when taken individually and separately, are within the probationable period. 17. In a case for violation of Sec. 8, RA 6425, otherwise known as the Dangerous Drugs Act, accused Vincent was given the benefit of the mitigating circumstances of voluntary plea of guilt and drunkenness not otherwise habitual. He was sentenced to suffer a penalty of six (6) years and one (1) day and to pay a fine of P6,000.00 with the accessory penalties provided by law, plus costs. Vincent applied for probation. The probation officer favorably recommended his application. 1. If you were the judge, what action will you take on the application? Discuss fully. 2. Suppose that Vincent was convicted of a crime for which he was sentenced to a maximum penalty of ten (10) years. Under the law, he is not eligible for probation. He seasonably appealed his conviction, the appellate court reduced the penalty to a maximum of four (4) years and four (4) months taking onto consideration certain modifying circumstances. Vincent now applies for probation. How will you rule on his application? Discuss fully.
ANSWER:
1. If I were the judge, I will deny the application for probation. The accused is not entitled to probation as Sec. 9 of the Probation Law, PD No. 968, as amended, specifically mentions that those who “are sentenced to serve a maximum term of imprisonment of more than six years” are not entitled to the benefits of the law. 2. The law and jurisprudence are to the effect that appeal by the accused from a sentence of conviction forfeits his right to probation. (Sec. 4, PD No. 968, as amended by PD 1990; Bernardo vs. Balagot; Francisco vs. CA; Llamado vs. CA; De la Cruz vs. Judge Callejo, CA case).
This is the second consecutive year that this question was asked. It is the sincere belief of the Committee that there is a need to re-examine the doctrine. Firstly, much as the accused wanted to apply for probation he is prescribed from doing so as the maximum penalty is NOT PROBATIONABLE. Secondly, when the maximum penalty was reduced to one which allows probation it is but fair and just to grant him that roght because it is apparent
that the trial judge commited an error and for which the accused should not be made to suffer. Judicial tribunals in this jurisdiction are not only courts of law but also of equity. Thirdly, the judgment of the appellate court should be considered a new decision as the trial court’s decision was vacated; hence, he could take advantage of the law when the decision is remanded to the trial court for execution (Please see Dissenting opinion in Francisco vs. CA). It is suggested, therefore, that an examinee answering in this tenor should be credited with some points. 18. Homer was convicted of homicide. The trial court appreciated the following modifying circumstances : the aggravating circumstance of nocturnity, and the mitigating circumstance of passion and obfuscation, to intent to commit so grave a wrong, illiteracy and voluntary surrender. The imposable penalty for homicide is reclusion temporal the range of which is twelve (12) years and one (1) day to twenty (20) years. Taking into account the attendant aggravating ang mitigating circumstances, and applying the Indeterminate Sentence Law, determine the proper penalty to be imposed on the accused.
ANSWER:
It appears that there is one aggravating circumstance (nocturnity), and four mitigating circumstances (passion and obfuscation, no intent to commit so grave a wrong as that committed and voluntary surrender). Par. 4, Art. 64 should be applied. Hence there will be off-setting of modifying circumstances, which will now result in the excess of three mitigating circumstances. This will therefore justify in reducing the penalty to the minimum period. The existence of an aggravating circumstance, albeit there are four aggravating, will not justify the lowering of the penalty to the next lower degree under paragraph 5 of said Article, as this is applicable only if THERE IS NO AGGRAVATING CIRCUMSTANCE present. Since the crime committed is Homicide and the penalty therefore is reclusion temporal, the MAXIMUM sentence under the Indeterminate Sentence Law should be the minimum of the penalty, which is 12 years and 1 day to 14 years and 8 months. The MINIMUM penalty will thus be the penalty next lower in degree, which is prision mayor in its full extent (6 years and 1 day to 12 years). Ergo, the proper penalty would be 6 years and 1 day, as minimum, to 12 years and 1 day, as maximum. I believe that because of the remaining mitigating circumstances after the off-setting it would be very logical to impose the minimum of the MINIMUM sentence under the ISL and the minimum of th maximum sentence.
19. Itos was convicted of an offense penalized by a special law. The penalty prescribed is not less than six years but not more than twelve years. No modifying circumstance attended the commission of the crime. If you were the judge, will you apply the Indeterminate Sentence Law?
ANSWER:
If I were the judge, I will apply the provisions of the Indeterminate Sentence Law, as the last sentence of Section 1 Art 4103, specifically provides the application thereof for violations of special laws. Under the same provision, the minimum must not be less than the minimum provided therein (six years and one day) and the maximum shall not be more than the maximum provided therein, i.e. twelve years. (People vs. Rosalina
Reyes, 186 SCRA 184)
20. Juanito was found guilty of Robbery by the RTC of Manila and sentenced to four (4) Years, two (2) months and one (1) day of prision correctional as minimum to eight (80 years and twenty (20) days of prision mayor as maximum. Juanito appealed to the Court of Appeals which found him guilty only to Theft and sentenced him to a straight penalty of one (1) Year. The decision of the appellate court was promulgated in May, 1993. 1. Is Juanito entitled to the benefits of the Probation Law which became effective on Jan. 3, 1978? Why? 2. Suppose the prison term imposed by the RTC in the above example is only two (2) years as minimum to six (6) years as maximum and Juanito did not appeal. When he applied for probation, it was discovered that in March, 1960, a Municipal Court has sentenced him to a six-month imprisonment for less serious physical injuries which he fully served. May his application for probation be granted? Reason out.
ANSWER:
1. Juanito is not entitled to probation because the law, as amended, requires the filing of the application within the period for perfecting an appeal. 2. He is not entitled to the Probation Law because Section 9 (c) provides that probation shall not be extended to those “ who have previously been convicted by final judgement of an offense punishable by
imprisonment of not less than one (1) month and one (1) day or a fine not more than P200.00.” 21. Johnny Gitara was convicted of the crime of estafa by the Regional Trial Court of Manila. He was imposed the indeterminate penalty of imprisonment of 3 years, 2 months and 1 day as minimum and six years as maximum, both of prision correccional and was ordered to imdemnify the offended party in the amount of P3,000.00. He filed an application for probation upon the promulgation of the judgment. What is the legal effect of his application for probation on the judgment od conviction? Does said application interrupt the running of the period of appeal?
ANSWER:
The filing of the application for probation is considered as a waiver of the right of the accused to appeal; the decision has become final. In view of the finality of the decision there is no period of appeal to speak of. 22. Rolando was charged with murder. The penalty for murder is reclusion temporal in its maximum period to death. The trial court convicted Rolando, but lowered the penalty by one (1) degree because of the attendance of three (3) ordinary mitigating circumstances and the absence of any aggravating circumstance. The court then imposed an indeterminate sentence of 6 years and 1 day of prision mayor as minimum to 17 years and 1 day of reclusion temporal as maximum. Is the penalty correct?
ANSWER:
Technically and legally, the sentence of 5 years and one day to 17 years and one day is correct. Since there are three mitigating without any aggravating circumstance, the penalty provided for by law should be reduced by one degree, that is, prision mayor (maximum) of the indeterminate sentence. Otherwise stated, the maximum will have a range of 10 years and one day (startin point of prision mayor maximum) up to 17 years and four months (the end of reclusion temporal medium).
Since the maximum sentence imposed by the Judge is 17 years and one day, it is well within the maximum range. The maximum of six years and one day is also within the range of the next lowe in degree of prision correccional maximum (4 years, 2 months, 1 day to 6 years) up to prision mayor (8 years, 1 day to 10 years).
ALTERNATIVE ANSWER:
Since there are three mitigating circumstances which justify the lowering of the penalty by one degree, and only the presence of two mitigating circumstances will be enough to lower the penalty by one degree, the excess of one mitigating circumstance should justify the Judge to impose the minimum of the minimum (4 years, 2 months, 1 day) and the minimum of the maximum (1o years, 1 day). 23. A. Carlos was charged and convicted of murder. He was sentenced to life imprisonment and to indemnify the offended party in the amount of P30,000. He sought a reconsideration of the penalty on the ground that he should be entitled to the benefits of the Indeterminate Sentence Law. Decide with reasons. B. Suppose that instead of filing a motion for reconsideration he applies for probation. If you were the judge, will you grant the same? Explain your answer.
ANSWER:
A. Carlos is not entitled to avail of the Indeterminate Sentence Law because Section 2 of said law specifically disqualifies and disallows application thereof to persons sentenced to life imprisonment. B. I will not grant the application as it is clear in the Probation Law that the benefits thereof shall not apply to those sentenced to serve a maximum term of imprisonment of more than six (6) years. (P.D. 1990) 24. Andres is charged with an offense defined by a special law. The penalty prescribed for the offense is imprisonment of not less than five (5) years but not more than ten (10) years. Upon arraignment, he entered the plea of guilty. In the imposition of the proper penalty, should the Indeterminate Sentence Law be applied? If you were the judge trying the case, what penalty would you impose on Andres?
ANSWER:
The Indeterminate Sentence Law should be applied in this case. By express provision of said law (section 1) it is applicable to offenses punished by special laws. The indeterminate sentence in such cases shall consist of a maximum term which shall not exceed the maximum fixed by the special law and a minimum term which shall not be less than the minimum term prescribed by the same. If I were the judge trying the case, I would impose a penalty consisting of any duration not less than 5 years as minimum term and any duration not more than 10 years as maximum term. It could be five years and 1 day to 7 years; 7 years, six months and 1 day to 9 years; or any other sentence where the minimum term is not less than 5 years and the maximum term not more than 10 years. The plea of guilty cannot be considered as a mitigating circumstance in this case. The imprisonment of the indeterminate penalty in a special law rests upon the discretion of the court. Also, the pleas of guilty as a mitigating circumstance under the Revised Penal Code is appreciated only in a divisible penalty. It cannot be applied to a penalty which is not divisible into periods of fixed duration, like the penalty in special laws. 25. “A” was charged with theft and upon arraignment, pleaded guilty to the charge. He was detained for failure to post bail. After “two (2) months, a decision was rendered, sentencing “A” to an indeterminate sentence six (6) months and one (1) day as a minimum, to one (1) year and one (1) month as maximum, and to pay the offended party the amount of P700.00 On January 16, 1985, the very day the sentence was read to “A”, the judge issued a Commitment Order addressed to the Provincial Jail Warden. On January 28, 1985, “A applied for probation but his application on the ground that the sentence of conviction became final and executory on January 16, 1985, when, “A” commence to serve his sentence. a) Is “A” eligible for probation? b) What is the purpose of the probation law?
ANSWER: a.)
A is still eligible for probation since he filed his application for probation within 15 days from the promulgation of the judgment. Under the Probation Law; the accused may apply for probation WITHIN THE PERIOD FOR PERFECTING AN APPEAL which is 15 days from promulgation or notice thereof.
The judgment committed an error in issuing a Commitment Order on the same day of promulgation. A commitment order for the convict to begin serving his sentence can be validly issued only if the period for perfecting an appeal has expired with no appeal being taken. The fact that in compliance with such-
order, which is void, the accused commenced to serve his sentence does not bar him from availing himself of the benefits of the Probation Law. It is true that under the new Rules on Criminal Procedure it is provided that a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the accused has applied for probation (Sec. 7, Rule 120). But Section 9 of the same Rule provides that “nothing in this rule shall be construed as affecting any existing provision in the law governing suspension of sentence, probation or parole.” The probation law does not speak of filing an application for probation BEFORE judgment has become final. It only speaks of filing the application WITHIN THE PERIOD FOR PERFECTING AN APPEAL. There is nothing in the Probation Law that bars an accused who has commenced to serve his sentence from filing an application for probation provided he does so WITHIN THE PERIOD FOR PERFECTING AN APPEAL. What the probation law provides is that no application for probation shall be entertained or granted if the defendant has perfected an appeal from the judgment or conviction. It does say that no application shall be entertained if these judgment has become final because the convict has commenced to serve his sentence. b.)
The purposes of the Probation Law are: 1. To promote the correction and rehabilitation of an offender by providing him with individualized treatment; 2. To provide opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and 3. To prevent the commission of offenses.
26. a.) How is criminal liability totally extinguished? b.) How id criminal liability extinguished partially? c.) If an accused is acquitted, does it necessarily follows that no civil liability arising from the acts complained of may be awarded in the same judgment? Explain briefly.
ANSWER: a.)
Article 89 of the Revised Penal Code provides for the following causes of total extinction of criminal liability:
1. Death of the convict as to personal penalties, as to the pecuniary liabilities, liability therefore is extinguished only when death occurs before final judgment. 2. Service of sentence 3. Amnesty 4. Absolute pardon 5. Prescription of crime 6. Prescription of penalty 7. Marriage of the offended woman as provided in Art. 344. b.)
Art. 94 of the Revised Penal Code provides for the following causes of partial extinction of criminal liability: 1. 2. 3. 4. 5.
c.)
Conditional pardon Communication of sentence Good conduct allowances during confinement Parole Probation
If an accused acquitted, it does not necessarily follow that no civil liability arising from the acts complained of may be awarded in the same judgment except: If there is anexpress waiver of the liability; and there is a reservation of filing a separate civil action; a prior civil action was instituted before the criminal action.
27. Aristides was found guilty by the trial court of challenging Bodinus to a duel and scoffing at Bodinus because of the latter’s refusal to accept the challenge. The court sentenced Aristides to a penalty of imprisonment from four months and one day to two years and four months. In the dispositive portion of the decision, the court found Aristides entitled to probationand suspended the execution of the sentence for a period of two year. Aristides did not appeal the decision. State the purposes of the Probation Law and explain whether or not the action of the Judge promotes or serves these purposes.
ANSWER: The purposes of the Probation Law are: 1. To promote the correction and rehabilitation of an offender by providing him with individualized treatment; 2. To provide opportunity for the reformation of a penitent offender which might be less probable if he were to serve a prison sentence; and 3. To prevent the commission of offenses.
The action of the judge certainly promotes or serves these purposes because it gives a first time offender a second chance to maintain his place in society, through a process of reformation, which is better achieved, when he is not mixed with hardened criminals. The accused is afforded to reform and rehabilitate himself without the stigma of a prison record. However, probation cannot be granted without an application filed by the offender after conviction and sentence. Besides, if probation is granted, mandatory and optional conditions must be provided in the order of the court. 28. Under the probation law, the filing of an application for probation “shall be a deemed a waiver of the right to appeal.” Is this waiver mandatory or irrevocable? Explain.
SUGGESTED ANSWER: A. Furnished by Office of Justice Plana Despite the provision in the Probation Law that the filing of an application for probation “shall be deemed a waiver of the right to appeal”, it has been held that such a waiver is not irrevocable, hence an accused may withdraw his application for probation and instead opt to pursue from conviction. (Yusi v. Morales, 121 SCRA 853). For the purposes of probation what the law gives more importance to is the offender, not the crime (To v. Cruz Pano, 120 SCRA 8). In line with the public policy behind probation, right of appeal should not be irrevocably lost from the moment a convicted accused files an application for probation. Appeal and probation spring from the same policy, considering justice, humanity and compassion. B. Comments and Suggested Answer The waiver provided in the Probation Law is not irrevocable. The offender may still withdraw his application for probation and file an appeal if the period to do so has not yet prescribed. Probation Law is interpreted liberally in favor of the accused. It is not served by a harsh and stringent interpretation of its provisions. Appeal and probation spring from the same policy considerations of Justice, humanity and compassion. If it appears that the application for probation was improvidently filed by the offender who was assisted by counsel de oficio and not by his counsel of record who was in a better position to consider fully the strength of a possible appeal, being fully familiar with case, the waiver rule cannot be considered
irrevocable. (Yusi et al v. Judge Morales L-61958, April 28, 1983, 121, SCRA 653).
29. When a person convicted by final judgment is placed on probation and finally discharged after the probation period, is he still required to satisfy his pecuniary liabilities under the Revised Penal Code? Why?
SUGGESTED ANSWER: Under the Probation Law (P.D No. 968 as amended by P.D No. 1257) if the person who is placed on probation is finally discharged, such will operate to fully discharge the offender of his liability for the fine imposed. Under Art. 38 of the Revised Penal Code, fine is one of the pecuniary liabilities of the offender. The other pecuniary liabilities which are reparation for damages caused and indemnification for consequential damage. (Art. 38, Supra) which constitute the civil liability of the offender, are not extinguished because probation affects only the criminal aspect of the case. This is clearly evident in the “conviction and sentence” clause of the definition of probation under P.D No. 968. (Budlong v. Judge Apalisok L-60151, June 24, 1983) (Note: The question should have refered to the civil liability of the offender as that seems to be the intention of the examiner). 30. Isidro, 21, was convicted of Consented Abduction and sentenced to an indeterminate penalty of three (3) months and one (1) day of arresto mayor, as minimum, to two (2) years, four (4) months and one (1) day of prision correccional, as maximum. Isidro did not appeal but filed a petition for probation. The probation officer recommended favorable action on the application stating that the accused did not intend to cause a grave wrong and had the potential of good probationer. The trial court denied probation on the ground that it would be better for the accused to serve his sentence so that he could reform himself and correct his selfish tendencies. Admittedly, Isidro does not fall within any of the classes of disqualified offenders under the Probation Law. Would you sustain the action of the trial Judge in a Certiorari case assailing it. Reason.
SUGGESTED ANSWER:
I will not sustain the action of the trial judge. His denial of the application for probation because it would be better for the accused to serve his sentence so that he could reform himself and correct his selfish tendencies was arbitrary, capricious and whimsical. He should have considered the recommendation of the Probation Officer which was made after a post investigation of the offender in accordance with the Probation Law, that the offender was entitled to probation because he had not intended to commit a grave wrong when he committed the crime of consented abduction and that he had the potential of a good probationer. (Balleta Jr. vs. Judge Leviste. 92 SCRA 715 (1979)). 31. X seduced Y, a minor. He was prosecuted for seduction. After pleading for forgiveness, Y without even consulting her parents, pardoned X. Did the pardon extinguish the criminal action against X? Reason. What about his civil liability? Reason.
SUGGESTED ANSWER: The pardon of X by Y who is a minor did not extinguish the criminal liability of X. To extinguish the criminal liability of the offender in the crime of seduction and similar private crimes, the pardon of the offended party who is a minor must have the concurrence of her parents. The reason is seduction strikes at the family’s honor and inflicts injury not only to the offended party but also to her parents. (People v. Lacson, Jr., CA 56 O.G 9460). Since she is a minor, she is still under patria protestas. The civil liability is also not extinguished, for the same reason, since there is no express waiver (Art. 23, RPC). Besides, in the crime of seduction, not only the offended party but also her parents are entitled to moral damages. (Art. 2219, Civil Code, People v. Fontanilla, G. R No. L-25354, June 28, 1968). The right to support cannot also be renounced. (Art, 321, Civil Code).
