Capítulo III Diversificación de riesgos
NUEVA CALIFICACIÓN
Q: What shall every penalty carry aside from accessory penalties?
A: Every penalty imposed shall carry with it the confiscation of the proceeds of the crime and the instruments or tools with which it was committed.
Such proceeds, instruments or tools would be confiscated and forfeited in favor of the Government:
a. Unless they are properties belonging to a third person who is not liable for the offense.
b. Articles which are not subject to lawful commerce shall be destroyed.
Q: Can a third person invoke the provision of Article 45 of the Revised Penal Code or Section 20 of R.A. 9165 (which provides that every penalty imposed therein shall carry with it forfeiture and confiscation in favor of the government unless they are property of a third person not liable for the unlawful act) to recover his property which has been taken by the authorities while the main case is going on?
A: No. The status of any article confiscated in relation to the unlawful act for the duration of the
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ACRIMINALDVISER: JUDGE LAW RICO TEAM SEBASTIAN D. LIWANAG; SUBJECT HEAD: ALJON D. DE GUZMANASST. SUBJECT HEADS: JEFFREY D. ARZAGA, JEREMAE R. NADONGA; MEMBERS: EILYN E. MEDINA, VINCENT TITO B. ABUCEJO, PAULINE BREISSEE GAYLE D.
ALCARAZ, CONSTANZA B. BRILLANTES, ARWIN V. CABANTING, GIRLIE VENUS E. DE LEON, MARIA JAMYKA S. FAMA, ANNIEBEL D. GUYO, LAWRENCE P.
HOLANDAY, ANDRES JOSE, JR., BIENVENIDO L. MABULAC II, LARIA CARISA C. OLIVIA, IRISH ROSSANE M. PULLANTE, MARICHIE B. ALARAS
trial in the RTC as being in custodia legis is primarily intended to preserve it as evidence and to ensure its availability as such. To release it before the judgment is rendered is to deprive the trial court and the parties access to it as evidence. Forfeiture, if warranted pursuant to either Article 45 of the Revised Penal Code and Section 20 of R.A. No. 9165, would be a part of the penalty to be prescribed. The determination of whether or not any article confiscated in relation to the unlawful act would be subject of forfeiture could be made only when the judgment was to be rendered in the proceedings. (PDEA v Brodett, G.R. No. 196390, September 28, 2011) APPLICATION OF PENALTIES Q: How are penalties applied? A: Penalties are applied based on: 1. The stages of commission of the felony a. Consummated b. Frustrated c. Attempted 2. The offenders and their participation a. Principal b. Accomplice c. Accessory 3. Aggravating and mitigating circumstances.
Q: In what cases are mitigating and aggravating circumstances not considered in the imposition of penalty? A: 1. When penalty is single and indivisible. 2. In felonies thru negligence.
3. The penalty to be imposed upon a Moro or other non-Christian inhabitants. It lies in the discretion of the trial court, irrespective of the attending circumstances.
4. When the penalty is only a fine imposed by an ordinance.
5. When the penalties are prescribed by special laws.
Q: What are the two classifications of penalties?
A: There are two (2) general classifications of penalties: 1. Indivisible 2. Divisible- can be divided into 3 periods a. Minimum b. Medium c. Maximum Q: Differentiate period from degree
A: Period is each of the three equal parts of a divisible penalty, while degree is the diverse penalties mentioned by name in the Revised Penal Code.
Q: What are the rules for the application of indivisible penalties?
A:
1. When the penalty is single indivisible, it shall be applied regardless of any mitigating or aggravating circumstances. (except privileged mitigating)
2. When the penalty is composed of two indivisible penalties, the following rules shall be observed:
a. When there is only one aggravating circumstance, the greater penalty shall be imposed.
b. When there is neither mitigating nor aggravating circumstances, the lesser penalty shall be imposed.
c. When there is a mitigating circumstance and no aggravating circumstance, the lesser penalty shall be imposed.
d. When both mitigating and aggravating circumstances are present, the court shall allow them to offset one another.
Note: In the last instance, it is the moral value,
rather than the numerical weight which should prevail.
Q: What are the rules for the application of penalties which contain three periods?
A:
1. No aggravating and no mitigating- medium period.
2. Only mitigating- minimum period 3. Only aggravating- maximum period.
4. When there are aggravating and mitigating- the court shall offset those of one class against the other according to relative weight. 5. Two or more mitigating and no aggravating-
penalty next lower, in the period applicable, according to the number and nature of such circumstances.
6. No penalty greater than the maximum period of the penalty prescribed by law shall be imposed, no matter how many aggravating circumstances are present.
7. The court can determine the extent of penalty within the limits of each period, according to the number and nature of the aggravating and mitigating circumstances and the greater or lesser extent of the evil produced by the crime.
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U N I V E R S I T Y O F S A N T O T O M A S
F a c u l t a d d e D e r e c h o C i v i l
THE ACADEMICS COMMITTEECHAIRPERSON: KAREN FELIZ SUPNAD
VICE CHAIRPERSON FOR ACADEMICS: MARIA IRENE SANTOS
A: The graduated scale is followed when the law prescribes a penalty lower or higher by one or more degrees than another given penalty. Scale 1 1. Death 2. Reclusion Perpetua 3. Reclusion Temporal 4. Prision mayor 5. Prision Correccional 6. Arresto Mayor 7. Destierro 8. Arresto Menor 9. Public censure 10. Fine Scale 2
1. Perpetual or Temporary Absolute Disqualification
2. Perpetual or Temporary Special Disqualification
3. Suspension from public office, the right to vote and to be voted for, the profession or calling 4. Public Censure 5. Fine Q: What is the rule in increasing the penalty of fine by one or more degrees
A: Fines shall be increased or reduced for each degree by ¼ of the maximum amount. The minimum amount prescribed by law shall not be changed.
Q: What are the penalties imposed on principals, accomplices, accessories, in accordance to the stages of committing a felony?
A:
Consummated Frustrated Attempted
Principals Penalty prescribed by law for the offense. 1 degree lower than the penalty prescribed by law 2 degrees lower than the penalty prescribed by law Accomplices 1 degree lower than the penalty prescribed by law. 2 degrees lower than the penalty prescribed by law for a frustrated felony 3 degrees lower than the penalty prescribed by law for a frustrated felony Accessories 2 degrees lower than the penalty prescribed by law 3 degrees lower than the penalty prescribed by law for an attempted felony 4 degrees lower than the penalty prescribed by law for an attempted felony Note: GR: a. Penalties are imposed upon the principals. b. Whenever the law prescribes a penalty for a
felony in general terms, it shall be understood to apply to a consummated felony.
XPN: This shall not apply if:
a. The law expressly provides penalties for accomplices and accessories of a crime.
b. the law expressly provides penalties for frustrated and attempted stages;
Q: What are the additional penalties imposed to certain accessories?
A: Those accessories falling within the terms of Paragraph 3, Article 19 of this code who shall act with abuse of their public functions shall suffer an additional penalty of:
a. Absolute Perpetual Disqualification if the principal offender is guilty of a grave felony.
b. Absolute Temporary Disqualification if the offender is guilty of a less grave felony.
Q: What are the penalties to be imposed upon principals when the crime consummated was different from that which was intended?
A: Rules:
a. If the penalty prescribed for the felony committed is higher than the penalty prescribed for the felony originally intended, the penalty corresponding to the latter shall be imposed in its maximum period.
b. If the penalty prescribed for the felony committed is lower than the penalty prescribed for the felony originally intended, the penalty corresponding to
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ACRIMINALDVISER: JUDGE LAW RICO TEAM SEBASTIAN D. LIWANAG; SUBJECT HEAD: ALJON D. DE GUZMANASST. SUBJECT HEADS: JEFFREY D. ARZAGA, JEREMAE R. NADONGA; MEMBERS: EILYN E. MEDINA, VINCENT TITO B. ABUCEJO, PAULINE BREISSEE GAYLE D.
ALCARAZ, CONSTANZA B. BRILLANTES, ARWIN V. CABANTING, GIRLIE VENUS E. DE LEON, MARIA JAMYKA S. FAMA, ANNIEBEL D. GUYO, LAWRENCE P.
HOLANDAY, ANDRES JOSE, JR., BIENVENIDO L. MABULAC II, LARIA CARISA C. OLIVIA, IRISH ROSSANE M. PULLANTE, MARICHIE B. ALARAS
the former shall be imposed in its maximum period.
c. The rule in the next preceding paragraph shall not apply if the acts committed by the guilty person shall constitute an attempt or frustration of another crime. If the law prescribes a higher penalty for
either of the latter offenses, such penalty shall be imposed in its maximum period. Q: What penalties may be simultaneously served? A: 1. Perpetual absolute disqualification 2. Perpetual special disqualification 3. Temporary absolute disqualification 4. Temporary special disqualification 5. Suspension 6. Destierro 7. Public censure 8. Fine and bond to keep the peace 9. Civil interdiction 10. Confiscation and payment of costs Indeterminate Sentence Law (R.A. 4103, as amended by Act No. 4225) Q: What is an indeterminate sentence?
A: It is a sentence with a minimum term and a maximum term which the court is mandated to impose for the benefit of a guilty person who is not disqualified therefore, when the maximum imprisonment exceeds 1 year.
Q: What is the purpose of the indeterminate sentence law?
A: The purpose of the indeterminate sentence law is to avoid prolonged imprisonment because it is proven to be more destructive than constructive to offenders.
Q: When does indeterminate sentence apply?
A: Indeterminate sentence applies mandatorily to violations of both the RPC and special laws where imprisonment would exceed one (1) year, and where the penalty is divisible. (Sec.1)
Q: How is the indeterminate sentence imposed?
A: In imposing a prison sentence for an offense punished by the RPC or special penal laws, the court shall sentence the accused to an indeterminate sentence, which has a maximum and a minimum term based on the penalty actually imposed.
Note: The term minimum refers to the duration of the
sentence which the convict shall serve as a minimum to be eligible for parole. The term maximum refers to the maximum limit of the duration that the convict may be held in jail. For special laws, it is anything within the inclusive range of prescribed penalty. Courts are given discretion in the imposition of the indeterminate penalty. Q: What are the rules in imposing a penalty under the Indeterminate sentence law? A: PENALTY IS IMPOSED BY THE RPC:
1. The Maximum Term – is that which in view of the attending circumstances could be properly imposed under the RPC 2. The Minimum Term – is within the range of the penalty next lower to that prescribed by the RPC PENALTY IS IMPOSED BY SPECIAL PENAL LAW:
1. The Maximum Term – must not exceed the maximum term fixed by said law. 2. The Minimum Term – must not be less than the minimum term prescribed by the same. Q: Who are disqualified from availing the benefits of the indeterminate sentence law? A: The Indeterminate sentence law shall not apply to persons: 1. Convicted of:
a. An offense punishable with death penalty, reclusion perpetua or life imprisonment
b. Treason, conspiracy or proposal to commit treason
c. Misprision of treason, rebellion, sedition, espionage
d. Piracy
2. Who are habitual delinquents
3. Who shall have escaped from confinement or evaded sentence 4. Granted conditional pardon by the Chief
Executive and shall have violated the term (condition) thereto
5. Whose maximum term of imprisonment does not exceed one year
6. Sentenced to the penalty of destierro or suspension only; Any person convicted of a crime but the penalty imposed upon him does not involve imprisonment 7. Who are already serving final judgment
upon the approval of the Indeterminate Sentence Law. (Sec. 2)
77
U N I V E R S I T Y O F S A N T O T O M A S
F a c u l t a d d e D e r e c h o C i v i l
THE ACADEMICS COMMITTEECHAIRPERSON: KAREN FELIZ SUPNAD
VICE CHAIRPERSON FOR ACADEMICS: MARIA IRENE SANTOS
Note: Although the penalty prescribed for the felony
committed is death or reclusion perpetua, if after considering the attendant circumstances, the imposable penalty is reclusion temporal or less, the Indeterminate Sentence Law applies.
Q: When is a prisoner qualified for release on parole?
A: Whenever any prisoner shall:
1. Have served the minimum penalty imposed upon him
2. Appear to the board of indeterminate sentence, from the reports of the prisoner’s work and conduct, and from the study and investigation made by the board itself that:
a. Fitted by his training for release; b. Reasonable probability that such
prisoner will live and remain at liberty without violating the law; c. Release will not be incompatible
with the welfare of society. (Section
5 of the Indeterminate Sentence Law)
Q: When is a prisoner on parole entitled to final release and discharge?
A: If during the period of surveillance such paroled prisoner shall:
1. Show himself to be a law abiding citizen and;
2. Not violate any law, (Section 6 of the
indeterminate Sentence Law)
Note: The Board may issue a final certification in his
favor, for his final release and discharge. (Sec. 6)
Q: What are the sanctions for the violation of the conditions of parole?
A: When the paroled prisoner shall violate any of the conditions of his parole, he may be:
1. Rearrested; and
2. Thereafter, he shall serve the remaining unexpired portion of the maximum sentence for which he was originally committed to prison. (Sections 8 of the
Indeterminate Sentence Law)
THREE FOLD RULE
Q: What are the different systems of penalties relative to two or more penalties imposed on one and the same accused?
A:
1. Material accumulation system- no limitation whatever. All the penalties for all violations were imposed even if they reached beyond the natural span of human life.
2. Juridical accumulation system- limited to not more than the three fold length of time corresponding to the most severe and in no case exceed 40 years.
3. Absorption system- the lesser penalties are absorbed by the graver penalties. It is observed in the imposition of the penalty in complex crimes, continuing crimes, and specific crimes like robbery with homicide, etc. Q: What is the rule if the culprit has to serve 2 or more penalties? A: If the culprit has to serve 2 or more penalties, he shall serve them simultaneously if the nature of the penalties will so permit. Otherwise, the penalties shall be served successively on the order of their severity as follows: 1. Death 2. Reclusion perpetua 3. Reclusion temporal 4. Prision mayor 5. Prision correccional 6. Arresto mayor 7. Arresto menor 8. Destierro 9. Perpetual absolute disqualification 10. Temporary absolute disqualification
11. Suspension from public office, the right to vote and be voted for, the right to follow profession or calling
12. Public censure
Q; What is the three-fold rule?
A: The maximum duration of a convict’s sentence shall not be more than three times the length of time corresponding to the most severe of the penalties imposed upon him but in no case exceed 40 years. Q: When does the three-fold rule apply? A: If a convict has to serve at least four sentences, continuously.
Note: All the penalties, even if by different courts at
different times, cannot exceed three-fold most severe.