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INDETERMINATE SENTENCE LAW

Computation and Application of Penalties
September 9, 2013, General Santos City

Justice Mario V. Lopez

PENALTY
-suffering inflicted by the State for the transgression of a law

Philosophical Theories

a. Prevention -The State must punish the criminal to prevent or

suppress the danger to the State arising from the criminal
acts of the offender.

b. Self-defense -The State has a right to punish the criminal as a

measure of self-defense so as to protect society from the
threat and wrong inflicted by the criminal

c. Exemplarity/Deterrence -The criminal is punished to serve as an

example to deter others from committing crimes.

d. Reformation -The object of punishment in criminal cases is to

correct and reform the offender.

e. Retribution -The crime must be punished by the State as an act

of retributive justice, a vindication of absolute right and moral
law violated by the criminal.

Important Terms

a. Divisible and Indivisible -Divisible penalties are those that have

fixed duration and are divisible into three periods, while
Indivisible penalties are those which have no fixed duration.

b. Period and Degree -Period refers to each of the three equal parts
of a divisible penalty (one third portion of a divisible penalty),
while, Degree refers to the diverse penalties mentioned
by name in the Revised Penal Code.

c. Penalty prescribed, imposable and imposed -Penalty prescribed

refers to the initial penalty as a general prescription for the
felonies; Imposable penalty refers to the penalty as modified
after considering the attending and modifying circumstances;
Penalty actually imposed refers to the single fixed penalty
(straight penalty) chosen by the court from the imposable
penalty.
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d. Principal and Accessory -Principal penalties are those expressly

imposed by the court in the judgment of conviction, while,
Accessory penalties are those that are deemed included in the
imposition of the principal penalties.

Specific provisions of the RPC on Penalties

a. Art. 46 -Penalty to be imposed upon principal in general

b. Art. 50-57 -Penalty to be imposed for frustrated or attempted

felony, or to be imposed upon accomplices or
accessories.

c. Art. 63 -Rules for application of indivisible penalties.

d. Art. 64 -Rules for the application of penalties which contain

three periods.

e. Art. 65 -Rules in cases in which the penalty is not composed of

three periods.

f. Art. 61 -Rules of graduating penalties in relation to Art. 71.

Article 71
1. Death Indivisible
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional Divisible
6. Arresto mayor
7. Destierro
8. Arresto menor
9. Public censure

Article 70
1. Death
2. Reclusion perpetua
3. Reclusion temporal
4. Prision mayor
5. Prision correccional
6. Arresto mayor
7. Arresto menor
8. Destierro
9. Public censure
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Indeterminate Sentence Law Preliminaries

POLICY:

To prevent the unnecessary and excessive deprivation of liberty

and to enhance the economic usefulness of the accused, since he
may be exempted from serving the entire sentence, depending
upon his behavior and his physical, mental, and moral record.

a. Crimes punished by the Revised Penal Code (Rule/Procedure)

-If the crime is punished by the RPC, the Court shall sentence the
accused to an indeterminate penalty, the maximum term of which
shall be that which, in view of the attending circumstances, could
be properly imposed under the rules of RPC, and the minimum
term of which shall be within the range of the penalty next lower to
that prescribed by the Code for the offense.

Note: a. When there is a privileged mitigating, consider it

first to get the penalty prescribed and then proceed as
required by the rules on ISLAW.
b. The maximum term is determined according to
the rules of the RPC (see Arts. 46, 48, 50 to 57, 61, 62,
64, 65, 68, 69, 71.)
c. The Rules of the Code are not applicable in fixing
the minimum term.

Example: A is convicted of falsification of official

document committed by a public officer penalized by
prision mayor. There is one mitigating
circumstance of plea of guilty.

To determine the penalty next lower, disregard

first the mitigating circumstance of plea of guilty.
Hence, prision mayor in its full extant, the penalty
prescribed by the Code, should be the basis, and not
prision mayor minimum, because it is not the penalty
prescribed by the Code for the offense.

The penalty next lower is prision correccional.

Therefore, the maximum term of the indeterminate
sentence shall be prision mayor, in its proper period
after considering the mitigating circumstance, and the
minimum shall be prision correccional, in any of its
periods or anywhere within the range of prision
correccional, without reference to any of its periods.
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b. Offenses punished by Special Laws (Rule/Procedure)

-If the offense is punished by a special law, the Court shall

sentence the accused to an indeterminate penalty, the maximum
term of which shall not exceed the maximum fixed by said law and
the minimum term shall not be less than the minimum prescribed
by the same.

Note: The circumstances are not considered.

Example: A is convicted of illegal possession of firearm

punishable by imprisonment from one year and one
day to five years.
The Court can impose an indeterminate sentence
from 2 years and 1 day, as the minimum term, to 4
years, as the maximum term; or 2 years and 1 day to
3 years; or 3 years and 1 day to 5 years.

c. Exceptions to the application of ISLAW

With respect With respect With respect

to penalty imposed: to offense: to the nature of the
offender

1. Death 1. Treason
1. Habitual delinquent
2. Life imprisonment 2. Conspiracy or proposal
to commit treason 2. Persons who escaped from
3. Reclusion perpetua confinement or evaded
3. Misprision of treason sentence
4. Destierro
4. Rebellion 3. Persons granted with
5. Suspension conditional pardon and violated
5. Sedition its terms

6. Espionage 4. Maximum term of

imprisonment does not exceed
7. Piracy one year

5. Persons sentenced to the

penalty of destierro or
suspension

6. Persons convicted by final

judgment before the approval
of ISLAW
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Related Jurisprudence

a. Qualified Theft

1. Under Article 310 of the Revised Penal Code, the penalty for Qualified
Theft is two degrees higher than that specified in Article 309.

Paragraph 1 of Article 309 provides that if the value of the thing stolen is
more than P12,000.00 but does not exceed P22,000.00, the penalty shall be
prision mayor in its minimum and medium periods. In this case, the amount
stolen was P15,000.00. Two degrees higher than prision mayor minimum and
medium is reclusion temporal in its medium and maximum periods.

Applying the Indeterminate Sentence Law, the minimum shall be prision

mayor in its maximum period to reclusion temporal in its minimum period or
within the range of 10 years and 1 day to 14 years and 8 months.

There being neither aggravating nor mitigating circumstance in the

commission of the offense, the maximum period of the indeterminate sentence
shall be within the range of 16 years, 5 months and 11 days to 18 years, 2
months and 20 days. (Cruz v. People of the Philippines, G.R. No. 176504,
September 3, 2008)

2. In People v. Anabe (G.R. No. 179033, September 6, 2010), the accused

was convicted of qualified theft. However, the prosecution presented a mere
uncorroborated estimate to prove the amount of property taken. Following the
instruction in Merida v. People (G.R. No. 158182, June 12, 2008, 554 SCRA
366), that in the absence of independent and reliable corroboration of such
estimate, the courts may either apply the minimum penalty under Article 309 or
fix the value of the property taken based on the attendant circumstances of the
case.

Accordingly, the prescribed penalty under Article 309 (6) of the Revised
Penal Code is arresto mayor in its minimum and medium periods. Considering,
however, that the theft is qualified, the prescribed penalty shall be increased by
two degrees, that is, to prision correccional in its medium and maximum periods
or two (2) years, four (4) months and one (1) day to six (6) years. Taking into
account the Indeterminate Sentence Law, the minimum term shall be taken from
anywhere within the range of four (4) months and one (1) day to two (2) years
and four (4) months of arresto mayor, which is the penalty next lower than the
prescribed penalty.

Hence, the proper penalty is an indeterminate sentence of four (4)

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.

3. In Astudillo v. People (G.R. No. 159734, November 30, 2006, citing

People v. Mercado, G.R. No. 143676, February 19, 2003), the Supreme Court
instructed that:

In the determination of the penalty for Qualified Theft, note is taken of the
value of the property stolen, which is P797,984.00. Since the value exceeds
P22,000.00, the basic penalty is prision mayor in its minimum and medium
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periods to be imposed in the maximum period Eight (8) Years, Eight (8)
Months and One (1) Day to Ten (10) Years of prision mayor. To determine the
additional years of imprisonment, the amount of P22,000.00 is deducted from
P797,984.00, which yields a remainder of P775,984.00. This amount is then
divided by P10,000.00, disregarding any amount less than P10,000.00. The end
result is that 77 years should be added to the basic penalty. xxx As for the
penalty for Qualified Theft, it is two degrees higher than that for Simple Theft,
hence, the correct penalty is reclusion perpetua.

4. Finally, in People v. Bago (G.R. No. 122290, April 6, 2000) the Supreme
Court held that:

In the crime of theft, if the value of the thing stolen exceeds P22,000.00, the
penalty shall be prision mayor in its maximum period and one year for each
additional P10,000.00, but the total penalty shall not exceed twenty years or
reclusion temporal. However, if that crime of theft is attended by any of the
qualifying circumstances which convert the taking into qualified theft, the
penalty next higher by two degrees shall be imposed, that is, at least, reclusion
perpetua.

b. Estafa

1. The addition of one year imprisonment for each additional P10,000.00, in

excess of P22,000.00, is the incremental penalty. The incremental penalty rule is
a mathematical formula for computing the penalty to be actually imposed using
the prescribed penalty as the starting point. This special rule is applicable in
estafa and in theft.

In estafa, the incremental penalty is added to the maximum period of the

penalty prescribed, at the discretion of the court, in order to arrive at the
penalty to be actually imposed, which is the maximum term within the context
of the Indeterminate Sentence Law (ISL). xxx

To compute the incremental penalty, the amount defrauded shall be

subtracted by P22,000.00, and the difference shall be divided by P10,000.00,
and any fraction of P10,000.00 shall be discarded.

Here, the imposable penalty is prision correccional in its maximum period

to prision mayor in its minimum period. The duration of prision correccional in its
maximum period is from four (4) years, two (2) months and one (1) day to six
(6) years; while prision mayor in its minimum period is from six (6) years and
one (1) day to eight (8) years. The incremental penalty for the amount
defrauded (P120,000.00) would be an additional nine years imprisonment, to be
added to the maximum imposable penalty of eight years. Thus, the proper
indeterminate penalty is four (4) years and two (2) months of prision
correccional, as minimum, to seventeen (17) years of reclusion temporal, as
maximum. (Sy v. People, G.R. No. 183879, April 14, 2010, citing People v.
Temporada, 574 SCRA 258)

2. The range of penalty provided for in Article 315 is composed of only two
periods -to get the maximum period of the indeterminate sentence, the total
number of years included in the two periods should be divided into three. (Luces
v. Damolec, 548 SCRA 373)
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3. The maximum period of the prescribed penalty of prision correccional

maximum to prision mayor minimum is not prision mayor minimum to
compute the maximum period of the prescribed penalty, prision correccional
maximum to prision mayor minimum should be divided into three equal portions
of time each of which portion shall be deemed to form one period in accordance
with Article 65 of RPC, following which, the maximum period is from 6 years, 8
months and 21 days to 8 years. (People v. Temporada, 574 SCRA 258)

The basis for fixing the minimum term is the prescribed penalty, and not
the imposable penalty. (Id.)

The plain terms of the Indeterminate Sentence Law show that the
legislature did not intend intend to limit attending circumstances as referring
to Articles 13 and 14 of the RPC the wording of the law clearly permits other
modifying circumstances outside of Articles 13 and 14 of the RPC to be treated
as attending circumstances for purposes of the application of the ISL, such as
quasi-recidivism under Article 160 of the RPC. (Id.)

The incremental penalty rule is a special rule applicable to estafa and

theft; The unique characteristic of the incremental penalty rule does not pose
any obstacle to interpreting it as analogous to a modifying circumstances, and,
hence, falling within the letter and spirit of attending circumstances for
purposes of the Indeterminate Sentence Law. (Id.)

The penalty prescribed for estafa is composed of only two, not three,
periods. In such a case, Article 65 of the Revised Penal Code requires the
division into three equal portions of time included in the penalty prescribed, and
forming one period of each of the three portions. (People v. Abordo, G.R. No.
179934 May 21, 2009) Therefore, the maximum, medium, and minimum periods
of the penalty prescribed are:

Minimum -4 years, 2 months, 1 day to 5 years, 5 months, 10 days

Medium -5 years, 5 months, 11 days to 6 years, 8 months, 20 days
Maximum -6 years, 8 months, 21 days to 8 years

4. Note also that since the penalty prescribed by law for estafa is prision
correccional maximum to prision mayor minimum, the penalty next lower would
then be prision correccional in its minimum to medium periods. Thus, the
minimum term of the indeterminate sentence should be anywhere from 6
months and 1 day to 4 years and 2 months, while the maximum term of the
indeterminate sentence should not exceed 20 years of reclusion temporal.

5. In Diaz v. People (G.R. No. 171121, August 26, 2008), the amount
involved is P265,900.00 and the trial court imposed on the petitioner an
indeterminate sentence of 6 years of prision correccional as minimum to 20
years of reclusion temporal as maximum. The Supreme Court ruled that the
maximum term imposed is correct because it does not exceed the 20-year
maximum period allowed by law. However, the minimum term is wrong. The
minimum term of the indeterminate sentence should be anywhere from 6
months and 1 day to 4 years and 2 months. Hence, the proper penalty to be
imposed on the petitioner is an indeterminate sentence of 4 years and 2 months
of prision correccional as minimum to 20 years of reclusion temporal as
maximum. (See also Real v. People, G.R. No. 152065, January 29, 2008)

6. The Supreme Court in People v. Martinez (G.R. No. 158627, March 5,

2010), involving four counts of estafa, affirmed the modifications made by the
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Court of Appeals on the penalties as follows:

Criminal Case No. 95-143311, the amount involved is P30,000.00. The

minimum term of the indeterminate sentence should be four (4) years and two
(2) months of prision correccional and the maximum term should be eight (8)
years of prision mayor.

Criminal Case No. 95-143313, the amount involved is P40,000.00. The

minimum term of the indeterminate sentence should be four (4) years and two
(2) months of prision correccional and the maximum term should at least be
eight (8) years of prision mayor plus a period of one (1) year [one (1) year for
each additional P10,000.00] or a total maximum period of nine (9) years of
prision mayor.

Criminal Case No. 95-143315, the amount involved is P39,000.00. The

minimum term of the indeterminate sentence should be four (4) years and two
(2) months of prision correccional and the maximum term should be at least
eight (8) years of prision mayor plus a period of one (1) year [one (1) year for
each additional P10,000.00] for a total maximum period of nine (9) years of
prision mayor.

Criminal Case No. 95-143317, the amount involved is P29,000.00. The

minimum term of the indeterminate sentence should be four (4) years and two
(2) months of prision correccional and the maximum term should be eight (8)
[years] of prision mayor.

7. In People v. Balagan (G.R. No. 183099, February 3, 2010), the trial court
convicted the accused of estafa after defrauding the amount of P57,000.00, and
imposed an indeterminate imprisonment of four (4) years and two (2) months
of prision correccional medium, as minimum, to eleven (11) years of prision
mayor maximum, as maximum. The Court of Appeals, however, modified the
penalty and sentenced the appellants to suffer a prison term of four (4) years
and two (2) months of prision correccional, as minimum, to nine (9) years and
one (1) day of prision mayor, as maximum

On appeal, the Supreme Court modified the penalty. It ruled that the both
the trial court and the Court of Appeals correctly fixed the minimum term at 4
years and 2 months of prision correccional since this is within the range of
prision correccional minimum and medium. On the other hand, to compute the
maximum period of the prescribed penalty, prision correccional maximum to
prision mayor minimum should be divided into three equal portions of time each
of which portion shall be deemed to form one period. Following this procedure,
the maximum period of prision correccional maximum to prision mayor minimum
is from 6 years, 8 months and 21 days to 8 years. The incremental penalty,
when proper, shall thus be added to anywhere from 6 years, 8 months and 21
days to 8 years, at the discretion of the court. Since the amount defrauded, in
this case, exceeds P22,000.00 by P35,000.00, 3 years shall be added to the
maximum period of the prescribed penalty (or added to anywhere from 6 years,
8 months and 21 days to 8 years, at the discretion of the court). The lowest
maximum term, therefore, that can be validly imposed is 9 years, 8 months and
21 days of prision mayor, and not 9 years and 1 day of prision mayor.

c. Malversation

1. The penalty prescribed for malversation under Article 217 of the RPC is
reclusion temporal in its medium and maximum periods, if the amount involved
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is more than 12,000 but is less than 22,000 pesos. If the amount exceeds the
latter, the penalty shall be reclusion temporal in its maximum period to reclusion
perpetua.

2. In Perez v. People (G.R. No. 164763, February 12, 2008), the amount
malversed totalled P72,784.57. The prescribed penalty is reclusion temporal in
its maximum period to reclusion perpetua, which has a range of seventeen (17)
years, four (4) months and one (1) day to forty (40) years. Upon review, the
Supreme Court appreciated two mitigating circumstances (with no aggravating
circumstance) and lowered the prescribed penalty by one degree which is prision
mayor in its maximum period to reclusion temporal in its medium period, to be
imposed in any of its periods. This new penalty has a range of ten (10) years
and one (1) day to seventeen (17) years and four (4) months. Applying the
Indeterminate Sentence Law, the maximum term could be ten (10) years and
one (1) day of prision mayor maximum, while the minimum term is again one
degree lower and could be four (4) years, two (2) months and one (1) day
of prision correccional maximum.

Ultimately, petitioner was sentenced to suffer the indeterminate penalty

of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum term, to ten (10) years and one (1) day of prision mayor, as
maximum term.

d. Complex Crime
Special Complex Crime
1. Under Art. 297 of the Revised Penal Code, the imposable penalty for
attempted robbery with homicide in the absence of any mitigating or
aggravating circumstances, is the higher half of the maximum period of reclusion
temporal or from eighteen (18) years, eight (8) months and one (1) day to
twenty (20) years. Applying the Indeterminate Sentence Law, he is hereby
sentenced to suffer the indeterminate sentence of ten (10) years and one (1)
day of prision mayor maximum, to eighteen (18) years, eight (8) months and
one (1) day of reclusion temporal maximum. (People v. Bulalayao, G.R. No.
103497 February 23, 1994)

2. In the complex crime of malversation of public funds through falsification

of public document, the penalty for the most serious crime shall be imposed in
its maximum period. The penalty for malversation being more severe than the
penalty for falsification, is then the applicable prescribed penalty to be imposed
in its maximum period. The actual attendance of two separate mitigating
circumstances (voluntary surrender and restitution) entitles the accused to the
penalty next lower in degree. For purposes of determining the next lower
degree, the full range of the penalty prescribed by law for the offense, not
merely the imposable penalty because of its complex nature, should, a priori, be
considered. This one degree lower penalty should, conformably with Article 48 of
the Code, be imposed in its maximum period or from 8 years, 8 months and 1
day to 10 years. The only effect of a third mitigating circumstance (praeter
intentionem) is to impose only the minimum portion of that maximum period,
that is from 8 years, 8 months and 1 day to 9 years, 6 months and 10 days,
from which range the maximum of the indeterminate sentence shall be taken.
Accordingly, an indeterminate sentence of 2 years, 4 months and 1 day to 8
years, 8 months and 1 day is proper. (Nizurtado v. Sandiganbayan, 239 SCRA
33)

Complex Crime under Article 48 of the RPC

3. In the estafa thru falsification of public documents as defined and
penalized in Articles 318 and 171, in relation to Article 48 of the Revised Penal
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Code, and there being no modifying circumstances in attendance, the accused

was sentenced with an indeterminate penalty ranging from (6) years of prision
correccional, as minimum, to ten (10) years, eight (8) months and one (1) day
of prision mayor, as maximum. (Fernan, Jr. and Torrevilas v. People, G.R. No.
145927, August 24, 2007)

e. Attempted Murder (Principal and Accomplices)

1. In Sumbillo v. People (G.R. No. 167464, January 21, 2010), the four
accused (one principal and three accomplices) were convicted of the crime of
attempted murder. The principal was sentenced to an indeterminate prison term
ranging from four years, two months and one day of prision correccional as
minimum to eight years and one day of prision mayor as maximum. The three
accomplices were sentenced to suffer an indeterminate prison term ranging from
six months and one day of prision correccional minimum as minimum to four
years, two months of prision correccional medium as maximum.

On appeal, the Supreme Court modified the penalty as to the

accomplices. Attempted murder is punishable with the penalty two degrees
lower than that prescribed for the consummated felony under Article 51 of the
Revised Penal Code. Accordingly, the imposable penalty is prision mayor. Absent
any mitigating or aggravating circumstance, the penalty shall be imposed in its
medium period.

Applying the Indeterminate Sentence Law, the minimum penalty to be

imposed should be within the range of prision correccional, and the maximum of
the penalty to be imposed should be within the range of prision mayor in its
medium period. The penalty of indeterminate prison term of four years, two
months and one day of prision correccional as minimum to eight years and one
day of prision mayor as maximum was correctly imposed on the principal.

On the other hand, being accomplices to the crime of attempted murder,

the penalty to be imposed shall be the medium periods of prision correccional.
Applying the Indeterminate Sentence Law, the maximum of the penalty to be
imposed on the accomplices to the crime of attempted murder is the medium
period of prision correccional and the minimum shall be arresto mayor. Thus, the
penalty of indeterminate prison term ranging from six months of arresto
mayor as minimum to four years, two months of prision correccional as
maximum should be imposed on the accomplices.

f. Special Law
1. Section 1 of the Indeterminate Sentence Law provides that when the
offense is punished by a law other than the Revised Penal Code, "the court shall
sentence the accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by law and the minimum shall not be less
than the minimum term prescribed by the same." Thus, the trial court erred in
imposing the straight penalty of imprisonment of twelve (12) years and one (1)
day. Applying ISL the proper penalty should be an imprisonment of twelve (12)
years and one (1) day, as minimum, to fourteen (14) years, as maximum.
(People v. Teodoro, G.R. No. 185164 June 22, 2009)

2. The penalty for simple highway robbery is reclusion temporal in its

minimum period. However, consonant with the ruling in the case of People v.
Simon, since P.D. No. 532 is a special law which adopted the penalties under the
Revised Penal Code in their technical terms, with their technical signification and
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effects, the indeterminate sentence law is applicable in this case. Accordingly, for
the crime of highway robbery, the indeterminate prison term is from seven (7)
years and four (4) months of prision mayor, as minimum, to thirteen (13) years,
nine (9) months and ten (10) days of reclusion temporal, as maximum. (Sayoc
v. People, G.R. No. 157723 April 30, 2009)

3. Section 28 of R.A. No. 8282 or the Social Security Act of 1997 provides:
Sec. 28. Penal Clause (h) Any employer who after deducting the monthly
contributions or loan amortizations from his employees compensation, fails to
remit the said deductions to the SSS within thirty (30) days from the date they
became due shall be presumed to have misappropriated such contributions or
loan amortizations and shall suffer the penalties provided in Article Three
hundred fifteen [Art. 315] of the Revised Penal Code.

Article 315 of the Revised Penal Code provides that the penalty in this
case should be x x x prision correccional in its maximum period to prision mayor
in its minimum period, if the amount of the fraud is over 12,000 pesos but does
not exceed 22,000 pesos; and if such amount exceeds the latter sum, the
penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the penalty which may be
imposed shall not exceed twenty years. In such cases, and in connection with
the accessory penalties which may be imposed and for the purpose of the other
provisions of this Code, the penalty shall be termed prision mayor or reclusion
temporal, as the case may be;
x x x x.
Since the above-quoted Sec. 28 (h) of the Social Security Act (a special
law) adopted the penalty from the Revised Penal Code, the Indeterminate
Sentence Law also finds application.

Taking into account the misappropriated P421,151.09 and the Courts

discourse in People v. Gabres (G.R. Nos. 118950-54) on the proper imposition of
the indeterminate penalty in Article 315, the appropriate penalty in this case
should range from four (4) years and two (2) months of prision correccional, as
minimum, to twenty (20) years of reclusion temporal, as maximum. (Mendoza v.
People, G.R. No. 183891, August 3, 2010)

4. In People v. Leonardo (G.R. No. 181036, July 6, 2010), the Supreme

Court held that for acts of lasciviousness performed on a child under Section
5(b), Article III of Republic Act No. 7610, the penalty prescribed is reclusion
temporal in its medium period to reclusion perpetua. Notwithstanding that
Republic Act No. 7610 is a special law, the appellant may enjoy the benefits of
the Indeterminate Sentence Law.
Applying the Indeterminate Sentence Law, the appellant shall be entitled
to a minimum term to be taken within the range of the penalty next lower to
that prescribed by Republic Act No. 7610. The penalty next lower in degree is
prision mayor medium to reclusion temporal minimum, the range of which is
from 8 years and 1 day to 14 years and 8 months. On the other hand, the
maximum term of the penalty should be taken from the penalty prescribed
under Section 5(b), Article III of Republic Act No. 7610, which is reclusion
temporal in its medium period to reclusion perpetua, the range of which is from
14 years, 8 months and 1 day to reclusion perpetua. The minimum, medium and
maximum term of the same is as follows: minimum 14 years, 8 months and 1
day to 17 years and 4 months; medium 17 years, 4 months and 1 day to 20
years; and maximum reclusion perpetua.
In this case, the trial court imposed on the appellant an indeterminate
sentence of 8 years and 1 day of prision mayor as minimum to 15 years, 6
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months and 20 days of reclusion temporal as maximum for each count of sexual
abuse under Section 5(b), Article III of Republic Act No. 7610. The minimum
term imposed is correct because it is within the range of prision mayor medium
to reclusion temporal minimum, the penalty next lower in degree to that
imposed by Republic Act No. 7610. But the maximum term thereof is wrong. The
maximum term of the indeterminate sentence should be anywhere from 14
years, 8 months and one day to reclusion perpetua.
Thus, the proper penalty to be imposed on the appellant is an
indeterminate sentence of 8 years and 1 day of prision mayor as minimum to 17
years, 4 months and 1 day of reclusion temporal as maximum for each count of
sexual abuse.

g. Effect of a Wrong Penalty

1. People v. Veneracion, G.R. Nos. 119987-88, October 12, 1995,

J. Kapunan

Facts: The two accused were convicted of rape with homicide and were
sentenced with the penalty of reclusion perpetua. Disagreeing with the sentence
imposed, the Prosecutor filed a Motion for Reconsideration praying that the
Decision be "modified in that the penalty of death be imposed." The judge
denied the motion for lack of jurisdiction after the accused have perfected their
appeal. Hence, this petition for certiorari.

Held: Under the law, the penalty imposable for the crime of Rape with Homicide
is not Reclusion Perpetua but Death. The Rules of Court mandates that after an
adjudication of guilt, the judge should impose "the proper penalty and civil
liability provided for by the law on the accused." Here, the judge, fully aware of
the appropriate provisions of the law, refuses to impose a penalty to which he
disagrees because of his religious convictions. In so doing, the judge acted
without or in excess of his jurisdiction or with grave abuse of discretion
amounting to a lack of jurisdiction. The case is hereby REMANDED to the
Regional Trial Court for the imposition of the penalty of death subject to
automatic review by this Court.

Dissenting, J. Vitug:
The instant petition for certiorari has become academic since an appeal brings
the case wide open for review and consideration. A ruling on the petition would
be precipitate and might be so perceived as peremptory on the imposition of the
death penalty. Thus, petition should be dismissed.

Concurring:
J. Narvasa:
The judgment in question is void, and has been annulled and set aside by this
Court, because rendered "without or in excess of . . . jurisdiction or with grave
abuse of discretion amounting to lack of jurisdiction," in so far as it imposes, in
light of the facts found to have been proven beyond reasonable doubt, a penalty
other than that peremptorily prescribed by law. The judgment being void, the
appeal attempted to be taken therefrom is inefficacious. The Trial Court may not
be deemed to have thereby lost jurisdiction of the cases. It cannot thus be said
that it is being required by this Court to act in cases over which it has already
lost jurisdiction. There exists no legal obstacle to the remand of the cases to it
and its modification of the judgment so that it may comply with the mandatory
prescription of the law.

J. Regalado:
 13

It would be worse if, as suggested, this certiorari action should be dismissed and
the appellate review be conducted with the judgment containing an unauthorized
penalty as the basis therefor, with this Court closing its eyes to such a flagrant
mistake. Appellants have come to this Court through the medium of an appeal
by writ of error from a judgment of the trial court imposing the wrong penalty of
reclusion perpetua. If the mistake in the penalty is now rectified with the death
sentence being substituted therefor, as undeniably it should be, then the case
will consequently be before this Court on automatic review. That provision
calling for automatic review when capital punishment is inflicted serves equally
the interests of both the defense and the prosecution through protective
features established by case law.

2. People v. Gatward and Win, G.R. Nos. 119772-73, February 7,

1997, J. Regalado.

Facts: The RTC convicted Gatward and Win of violation of Dangerous Drugs Act
of 1972 and were sentenced to suffer the penalty of imprisonment for thirty-five
(35) years and twenty-five (25) years of reclusion perpetua, respectively. Only
Gatward filed an appeal. Subsequently, Gatward filed an urgent motion to
withdraw appeal but was denied.

Held: The denial of Gatward's motion to withdraw appeal is not only justified but
is necessary since the trial court had imposed a penalty based on an erroneous
interpretation of the governing law thereon. The penalty of reclusion perpetua is
an indivisible penalty and the accused should necessarily suffer the entire extent
of 40 years of reclusion perpetua.

It may be contended that that the judgment against Win has already
become final. It may also be argued that an appeal taken by one accused shall
not affect those who did not appeal except insofar as the judgment of the
appellate court is favorable. These postulations, however, assume that the
penalties decreed in the judgment of the trial court are valid, specifically in the
sense that the same actually exist in law and are authorized to be meted out as
punishments. In the case Win, and the same holds true with respect to Gatward,
the penalty inflicted by the trial court was a nullity because it was never
authorized by law as a valid punishment. The penalties which consisted of
aliquot one-third portions of an indivisible penalty are self-contradictory in terms
and unknown in penal law.

An erroneous judgment, as thus understood, is a valid judgment. But a

judgment which ordains a penalty which does not exist in the catalogue of
penalties or which is an impossible version of that in the roster of lawful
penalties is necessarily void, since the error goes into the very essence of the
penalty and does not merely arise from the misapplication thereof. Corollarily,
such a judgment can never become final and executory.

Nor can it be said that, despite the failure of Win to appeal, his case was
reopened in order that a higher penalty may be imposed on him. There is here
no reopening of the case, as in fact the judgment is being affirmed but with a
correction of the very substance of the penalty to make it conformable to law,
pursuant to a duty and power inherent in this Court. The penalty has not been
changed since what was decreed by the trial court and is now being likewise
affirmed by this Court is the same penalty of reclusion perpetua which,
unfortunately, was imposed by the lower court in an elemental form which is
non-existent in and not authorized by law. Just as the penalty has not been
reduced in order to be favorable to the accused, neither has it been increased so
as to be prejudicial to him.
 14

3. People v. Leones, G.R. No. 128514/G.R. Nos. 143856-61, October

3, 2001, J. Puno.

Facts: The accused was charged and convicted by the trial court of three (3)
counts of rape and three (3) counts of acts of lasciviousness. The accused did
not appeal the above decision, but the prosecution filed a notice of appeal. The
prosecution alleges that the penalties for the three counts of rape imposed upon
the accused should each be increased to death; while the penalties meted out
for the three counts of acts of lasciviousness are erroneous and should each be
increased to "12 years and 1 day of reclusion temporal minimum, as minimum,
to 17 years and 4 months of reclusion temporal medium, as maximum."

Held: An appeal by the government seeking to increase the penalty imposed by

the trial court places the accused in double jeopardy and should therefore be
dismissed. Even assuming that the penalties imposed by the trial court were
erroneous, these cannot be corrected by this Court on appeal by the
prosecution. Whatever error may have been committed by the lower court was
merely an error of judgment and not of jurisdiction. It did not affect the intrinsic
validity of the decision. This is the kind of error that can no longer be rectified on
appeal by the prosecution no matter how obvious the error may be.''

The prosecution-appellant cites the cases of People v. Olfindo, et al.,

People v. Godines, et al., and People v. Medina, in support of its appeal. The
Solicitor General points out that in these cases, the Court consistently ruled that
an appeal in a criminal proceeding opens the whole case for review, including
the review of the penalty. The prosecution, however, sorely misses an important
point. It is true that said cases enunciate the doctrine that an appeal in a
criminal proceeding throws the whole case open for review. However, in all these
cases, it was the accused, not the prosecution, who brought the case to this
Court on appeal. In contradistinction with the present case, therefore, there was
no issue on double jeopardy in the said cases. These cases, therefore, do not
lend support to the prosecution's cause which must fall on the ground of double
jeopardy.

[Reiterated in People v. Court of Appeals and
19, 2007. J. Ynares-Santiago. In this case the
when double jeopardy will not attach, or the
through a petition for certiorari on the ground
amounting to lack or excess of jurisdiction.]
Sia, G.R. No. 172989, June
SC held that the only instance
penalty may be increased is
of grave abuse of discretion

[See also Icao v. Apalisok, G.R. No. L-59581, December 29, 1989, J.
Narvasa: A judgment which has become final and executory can no longer be
amended or corrected except only as regards clerical errors. Hence, even the
subsequent discovery of an erroneous imposition of a penalty will not justify
correction of the judgment after it has become final.]

[See also Estarija v. People, G.R. No. 173990, October 27, 2009, J. Chico-
Nazario. In this case, the RTC imposed upon the accused a straight penalty of
seven (7) years. This is erroneous. The penalty for violation of Section 3(b) of
Republic Act No. 3019 is imprisonment for not less than six years and one month
nor more than fifteen years, and perpetual disqualification from public office.
Under the Indeterminate Sentence Law, if the offense is punished by a special
law, the Court shall sentence the accused to an indeterminate penalty, the
maximum term of which shall not exceed the maximum fixed by said law, and
the minimum term shall not be less than the minimum prescribed by the same.
Thus, the correct penalty should have been imprisonment ranging from six (6)
years and one (1) month, as minimum, to nine (9) years as maximum, with
perpetual disqualification from public office. However, since the decision of the
RTC has long become final and executory, this Court cannot modify the same.]