penalty is of fixed duration, the convict during the period of time established m the preceding rules, shall continue to suffer the same deprivation as those of which the principal penalty consists.
When the principal penalty is not to be executed by confinement. Meaning the principal penalties does not consist of imprisonment, but of a fixed duration, the subsidiary penalty should be of the same nature as the principal penalty. But it is a divisible penalty.
Example: Destierro it has the same duration as prison correccional. You cannot be imprisoned but you are exiled. It is divisible because it has a fixed duration. So, it is the penalty. You are herein sentenced to 4 years of destierro and to pay a fine of P80.00. Suppose,you do not pay the fine of P80.00.
Question: What will happen to you? You have to undergo subsidiary penalty: 1 day for every P8.00. So, ten days of subsidiary, destierro also.
Answer: You do not say "subsidiary imprisonment'" because the principal penalty is not imprisonment. If the principal penalty is destierro. die subsidiary pcnaity should also be
Another Example You arc sentenced to a penalty of suspension. Suspension is under Art 25. There is also 6 months to 6 years. Divisible, but no imprisonment. So, four years of suspension; fine of P80.00. If you cannot pay the fine of P80.00, you have to undergo 10 days of subsidiary suspension.
The subsidiary penalty should be of the same nature as the principal penalty. Do not always say " subsidiary imprisonment" But you follow the rule in paragraph 4. In no case subsidiary destierro exceeds 1/3 of the principal penalty.
Question: Suppose the principal penalty is not to be executed in confinement, but it has no fixed duration. Will paragraph 4 apply?
Answer: Of course, not
Question: Give an example of a penalty not to be executed by confinement but it has no fixed duration. Answer: Public censure. It is the only example you can think of, it is only a light penalty where the judge will give you severe censure it will be a blot on your record
For Example public censure + fine of P20.00. You cannot pay. So, you cannot say: two days of subsidiary penalty of 2 days of public censure. You will keep on returning to the judge to be sermonized at. 5. The subsidiary personal liability winch the convict may have suffered by reason of his insolvency shall
not relieve him from the fine in case his financial circumstances should improve.
Suppose, I am asked to pay a fine of so much. I'm insolvent, as poor as a rat. So, I undergo subsidiary penalty fine of P4.000.00, I have nothing to pay. I’m imprisoned. Then I'm released after serving my sentence plus the subsidiary imprisonment. Afterward', I win in the lotto. So, i have much money now. The government will say "alright, pay your fine." You say "No more. I have already paid it through my subsidiary imprisonment! What paid? You pay again! Question: Why? Answer: Because service of the subsidiary penalty will not relieve you from the payment of the fine, if your financial condition will improve in the future.
The government has only 10 years to collect the fine. Only 10 years. It is an obligation arising from law and the prescriptive period is 10 years. Although, the law is silent. If your financial condition improves after 10 years, no more. But in the first 10 years, you can be compelled to pay and you cannot use the subsidiary imprisonment as a reason for not paying.
Question: is the subsidiary imprisonment an accessory penalty ' Is it an accessory penalty.''
Answer: If you look at Art. 25 of the Penal Code, it en all the possible penalties. I here is no mention of subsidiary penalty. CONCLUSION: it is not an accessory, penalty.
Answer: It is not deemed imposed with the principal penalty. Meaning, it must be expressly mentioned in the decision. And therefore, what happens if you arc ordered to pay a fine and you cannot pay the fine, but there is nothing in the decision which mentions it. Article 25 says that you cannot undergo subsidiary penalty, because it is not an accessory penalty
Question: Slow should the decision be worded?
Answer: You are hereby sentenced to pay a fine of P 100,000.00 with subsidiary imprisonment in ease of insolvency.
Question: Under the law, in what instances will there be no subsidiary penalty'' When is subsidiary penalty not be served? In what instances will there be no subsidiary penalty for an accused person?
Answer:
Then is no subsidiary penalty for non-payment of fine. In the same vein, there is no subsidiary penalty for non-payment of reparation, indemnification and costs
There is no subsidiary penalty if the principal penalty is higher than prison correccional.
There is no subsidiary penalty if the principal penalty is not to be executed by confinement if it has no fixed duration, like public censure.
There is no subsidiary penalty if the court did not mention it expressly in the judgment of conviction, because the rule is that it must be mentioned, otherwise the convict cannot be compelled to serve the subsidiary penalty.
Question: How do you define accessory penalty?
Answer: It is penalty deemed imposed with the principal penalty. So, the penalty is deemed imposed with the principal even if the judge did not mention it.
ARTICLE 73, RPC. Presumption in regard to the imposition of accessory penalty. Whenever the courts shall impose a penalty which, by provision of law, carried with it other penalties, according to the provisions of Articles 40, 41, 42, 43, 44, 45 of this Code, it must be understood that the accessory penalties are also imposed upon the convict.
So, whenever a principal penalty is imposed, the accessory penalty is deemed imposed even if not mentioned in the judgment of conviction.
Question: But how will I know what are the accessory penalties? Suppose, I am sentenced to 12 years of prision mayor. I know there are accessory penalties. But what are they? What are accessory penalties? Suppose, I am sentenced to 15 years reclusion temporal, what are the accessory penalties? Suppose, I am sentenced to 6 months of prison correccional. What are those deemed imposed? How do I look for the accessory penalties?
Answer: Arts. 40 to 44. These provisions will tell you that if this is the principal penalty, these are the accessory penalties attached to it.
Section Three
Penalties in which other accessory penalties are inherent
Art. 40. Death; Its accessory penalties. — The death penalty, when it is not executed by reason of commutation or pardon shall carry with it that of perpetual absolute disqualification and that of civil interdiction during thirty years following the date sentence, unless such accessory penalties have been expressly remitted in the pardon.
Art. 41. Reclusion perpetua and reclusion temporal; Their accessory penalties. — The penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil interdiction for life or during the period of the sentence as the case may be, and that of perpetual absolute disqualification which the offender shall suffer even though pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 42. Prision mayor; Its accessory penalties. — The penalty of prision mayor, shall carry with it that of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 43. Prision correccional; Its accessory penalties. — The penalty of prision correccional shall carry with it that of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, if the duration of said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification provided in the article although pardoned as to the principal penalty, unless the same shall have been expressly remitted in the pardon.
Art. 44. Arresto; Its accessory penalties. — The penalty of arresto shall carry with it that of suspension of the right too hold office and the right of suffrage during the term of the sentence.
Question: What is the most famous accessory penalty? Answer: Civil interdiction.
Question: What are the principal penalties which carry wish them the accessory penalty of civil interdiction. In other words, civil interdiction is the accessory penalty to what principal penalties?
Answer: You can answer that only when you go to Articles 40-44. So, the principal penalties which carry with them the accessory penalty of civil interdiction are:
Death
Reclusion perpetua Reclusion temporal
Question: Does death penalty carry with it civil interdiction?
Answer: Yes. The law is very clear. So, you are sentenced to die. And then it was commuted -when the SC decides on lowering it; or if the President decides to commute it to reclusion perpetua. that happened in 1987 when the New Constitution took effect doing away with the death penalty -- what happened to these people who are sentenced to death? There is a constitutional commutation So, automatically, they will be under civil interdiction.
PROBLEM: Suppose, you are sentenced to death, and you are scheduled to die between now and next month, there is no commutation. Neither the President nor the SC has reduced the penalty. So, you are still going to be executed.
Question: Is there civil interdict.
Answer: Technically, NONE. Unless it will be commuted. Technically, you are not under civil interdiction. So, technically, you can donate your property, you can manage it, you can exercise parental authority. There is no civil interdiction. I doubt how will you do it because you are already inside the jail But under the law, you have no accessory penalty
When the President says: "You are hereby sentenced to reclusion perpetua" from that moment, you are under civil interdiction.
Question: For how long'?
Answer: The law says for the next 10 years.
Question: Suppose, you are sentenced to reclusion temporal flow long is the civil interdiction?
Answer: Under Art. 41, it is of the same duration as the principal penalty. So, when it says 20 years of reclusion temporal, civil interdiction will also be 20 years.
Question: Suppose you are sentenced to perpetua. You arc not sentenced to death, flow long will the civil interdiction last?
Answer: Under Article 41, it says there, that if will last lot the rest of your life forever' Civil interdiction for life. Or, during the period of the sentence refers to temporal or perpetua; civil interdiction for life
Under Article 40, if you are sentenced to death, and it was commuted to perpetua, the civil interdiction is only good for 30 years Hut if you are sentenced to reclusion perpeiua, the civil interdiction is
for the rest of your life. There must be something wrong with the law. CONCLUSION: It is better to be sentenced to death commuted to perpetua because the civil interdiction is only for 30 years, but if sentenced to perpetua, civil interdiction is for the rest of your life. This is an awkward provision in the Revised Penal Code.
Art. 45. Confiscation and forfeiture of the proceeds or instruments of the crime. — Every penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds and instruments or tools shall be confiscated and forfeited in favor of the Government, unless they be property of a third person not liable for the offense, but those articles which are not subject of lawful commerce shall be destroyed.
When you are found guilty, the instrument or tools used in the commission of the crime will be confiscated or forfeited in favor of the State. This is also applied in special laws like illegal possession of firearms or drug pushing. The shabu will not be returned to the pusher. In a homicide or murder case, the weapon recovered and used as evidence, the gun, knife, bolo, will be confiscated. In illegal gambling, the cards, dice, chips, they are ail confiscated b\ the order of the court. But, of course, you cannot apply that to certain crimes. Like, for example, in rape, you cannot confiscate the instrument used in the commission of the crime
Chapter Four Application of Penalties
Section One
Rules for the application of penalties to the persons criminally liable and for the graduation of the same.