By Atty. Harold Huliganga
In my five years now as a Court Attorney, I had, on several occasions, come across
lower court decisions incorrectly applying the Indeterminate Sentence Law (I. S. Law) or Act No. 4103.
It is seriously disturbing that despite its seeming simplicity and brevity, some judges had been
perpetually misapplying it.
The basic mandate of the I. S. Law is the imposition of an indeterminate sentence
which is comprised by a MINIMUM term and a MAXIMUM term. It is indeterminate in the sense that
after serving the MINIMUM, the convict may be released on parole, or if he is not fitted for release, he
shall continue serving his sentence until the end of the MAXIMUM. It is the fixing of the MINIMUM and
MAXIMUM terms which generates a lot of confusion and is the constant source of error of some judges.
There is not much difficulty in ascertaining the indeterminate sentence if the crime is
a violation of a special law because in such a case, the I. S. Law merely requires that the
MAXIMUM term thereof shall not exceed the maximum fixed by the special law while the
MINIMUM shall not be less than the minimum prescribed therein. Accordingly, if a special law
imposes a penalty of “three (3) to nine (9) years of imprisonment”, the MINIMUM of the indeterminate
sentence cannot be less than “3” years while the MAXIMUM thereof cannot be more than “9” years.
Hence, the indeterminate sentence may be decreed as “3-9 years”, “3 years & 9 months - 7 years & 8
months”, “3-4 years”, “3-5 years”, “5-8 years, “8-9 years”, etc., depending on the sound discretion of
However, it should be stressed that the reference to special law in this
regard refer to those which provide for one specific penalty or a range of penalties with definitive
durations, such as imprisonment for ‘eight years’ or for ‘one year to five years’ but without division
into periods or any technical statutory cognomen. Where the penalty in the special law adopts the
technical nomenclature and signification of the penalties under the Revised Penal Code (RPC), such as
“prision mayor”, “prision correccional maximum”, etc., the ascertainment of the indeterminate
sentence will be based on the rule intended for those crimes punishable under the RPC.
The rule for ascertaining the indeterminate sentence for crimes punishable under
the RPC is much arcane and complicated than the rule applied in those crimes punishable under a
special law. In crimes punishable under the RPC, the indeterminate sentence is arrived at by
determining the MAXIMUM term, which, in view of the attending circumstances, could be
properly imposed under the rules of the RPC, and the MINIMUM term, which shall be within the
range of the penalty next lower to that prescribed by the RPC for the offense.
Prior to the effectivity of the I. S. Law, prison sentences were imposed and fixed
as a straight penalty exactly as provided for under the RPC, modified only by the applicable rules
therein, to wit: Articles 46, 48, 50 to 57, 61, 62, 64, 65, 68, 69, and 71. The MAXIMUM term of the
indeterminate sentence is determined exactly in that manner as if the Indeterminate Sentence
Law had never been enacted. Thus, same rules and provisions (except par. 5 of Art. 62)
must be taken into account in determining the MAXIMUM term of the indeterminate penalty. In
determining the MAXIMUM of the indeterminate sentence, the following questions may be asked by
way of a guide or checklist: (a) What is the imposable penalty for the crime?, (b) Is the convicted
felon a principal, accessory or accomplice?, (c) Was the crime consummated, frustrated or
attempted?, (d) Is the crime committed a complex crime?, (e) Is the commission of the crime
attended by any mitigating or aggravating circumstances?, (f) Is the penalty for the crime
indivisible or composed of three periods, i.e. minimum, medium and maximum periods?, and (g)
Is the accused entitled to a privilege mitigating circumstance?
For instance, if a person is convicted as a principal in the crime of homicide, the
imposable penalty under Art. 249 of the RPC is reclusion temporal, a divisible penalty. In
the absence of any mitigating or aggravating circumstance, the MAXIMUM of the indeterminate
penalty will be taken anywhere within the range of reclusion temporal medium,
i.e. from 14 years, 8 months and 1 day to 17 years and 4 months. The emphasis is on the phrase
“within the range” which means that anywhere within that period may be fixed
the MAXIMUM term of the indeterminate sentence. Thus, the judge, at his sound discretion, may fix
it at “14 years, 10 months and 26 days”, “17 years, 2 months and 6 days”, “16 years”, etc.
A greater difficulty in fixing the MAXIMUM term of the indeterminate penalty
arises where the range of the penalty provided for in the RPC is composed of only two periods. For
example, in the crime of estafa under Article 315 of the RPC, the imposable penalty is
prision correccional maximum to prision mayor minimum. In such case, the total
number of years included in the two periods should be divided into three equal periods of time,
forming one period for each of the three portions. Thus: minimum period – 4yrs., 2mos. &
1day to 5yrs., 5mos. & 10days; medium period – 5yrs., 5mos. & 11days to
6yrs., 8mos. & 20days; and maximum period – 6yrs., 8mos. & 21days to 8yrs.
In determining the MINIMUM term of the indeterminate sentence, the I. S. Law
mandates that the same be within the range of the penalty next lower to that prescribed by
the RPC for the offense. In this regard, wide latitude of discretion is given to the courts to fix the
MINIMUM of the indeterminate penalty anywhere within the range of the penalty next lower, without
regard to any modifying circumstances and without reference to the periods into which it
may be subdivided. In the previous example involving the crime of homicide, the imposable
penalty is reclusion temporal. The penalty next lower would therefore be prision
mayor. Within the range of prision mayor, the court may fix the MINIMUM of the
indeterminate penalty. Thus, the judge may fix it at “6 years and 1 day”, “6 years and 5 months”,
“8 years”, “12 years”, etc. While ample discretion is given to courts in fixing the MINIMUM of the
indeterminate sentence, the determination thereof nonetheless presents two aspects: first, the more
or less mechanical determination of the extreme limits of the minimum imprisonment period; and
second, the broad question of the factors and circumstances that should guide the discretion of the
court in fixing the minimum penalty within the ascertained limits.
The common practice has been to fix the MINIMUM of the indeterminate sentence
exactly one degree lower to the MAXIMUM arrived at. Thus, for example, if the MAXIMUM fixed by
the court is reclusion temporal medium, the MINIMUM is usually fixed at prision mayor
medium, which is exactly a degree lower. While the MINIMUM arrived at in that case is technically
correct, such nonetheless ignores the theoretical signification of the phrase “penalty next lower”
under the I. S. Law.
Conscientious adherence to the provisions of the I. S. Law is an indispensable
component of a fair and impartial judgment. For what could be the difference of even only one day
in the period of imprisonment of a convict could mean so much to the precious and cherished liberty
of the person.