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 (Joys 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 Art. 62 (Absence without Leave)
r.3 Art. 67 (Mutiny or Sedition)
r.4 Art. 68 (Failure to Suppress Mutiny or Sedition)
r.5 Art. 94 (Various Crimes)
r.6 Art. 96 (Conduct unbecoming an officer and
gentleman)
r.7 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

(h) when the sentence of death, it execution may be

suspended or postponed by the Supreme Court,
through the issuance of a TRO upon the ground of supervening
events (Echegaray v. Secretary of Justice, 301 SCRA
96 [1999]).
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. Pea, 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
courts 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 co-
terminous 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 offenders 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
Juans 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 courts 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. Conditional pardon
2. Communication of sentence
3. Good conduct allowances during confinement
4. Parole
5. Probation

c.) 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 latters
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 familys 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).