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5. Execution and Service

a. GENERAL PROVISIONS

1) When and how a penalty is to be executed

No penalty shall be executed except by virtue of a final judgment.

A penalty shall not be executed in any other form than that prescribed by law, nor with any other circumstances or incidents than those expressly authorized thereby.

In addition to the provisions of the law, the special regulations prescribed for the government of the institutions in which the penalties are to be suffered shall be observed with regard to the character of the work to be performed, the time of its performance, and other incidents connected therewith, the relations of the convicts among themselves and other persons, the relief which they may receive, and their diet.

The regulations shall make provision for the separation of the sexes in different institutions, or at least into different departments and also for the correction and reform of the convicts. (Article 78, Ibid.)

2) Suspension of the execution and service of the penalties in case of insanity

When a convict shall become insane or an imbecile after final sentence has been pronounced, the execution of said sentence shall be suspended only with regard to the personal penalty, the provisions of the second paragraph of circumstance number 1 of Article 12 being observed in the corresponding cases.

If at any time the convict shall recover his reason, his sentence shall be executed, unless the penalty shall have prescribed in accordance with the provisions of this Code.

The respective provisions of this section shall also be observed if the insanity or imbecility occurs while the convict is serving his sentence. (Article 79, Ibid.)

3) Suspension of sentence of minor delinquents

Whenever a minor of either sex, under sixteen years of age at the date of the commission of a grave or less grave felony, is accused thereof, the court, after hearing the evidence in the proper proceedings, instead of pronouncing judgment of conviction, shall suspend all further proceedings and shall commit such minor to the custody or care of a public or private, benevolent or charitable institution, established under the law of the care, correction or education of orphaned, homeless, defective, and delinquent children, or to the custody or care of any other responsible person in any other place subject to visitation and supervision by the Director of Public Welfare or any of his agents or representatives, if there be any, or otherwise by the superintendent of public schools or his representatives, subject to such conditions as are prescribed hereinbelow until such minor shall have reached his majority age or for such less period as the court may deem proper. The court, in committing said minor as provided above, shall take into consideration the religion of such minor, his parents or next of kin, in order to avoid his commitment to any private institution not under the control and supervision of the religious sect or denomination to which they belong.

The Director of Public Welfare or his duly authorized representatives or agents, the superintendent of public schools or his representatives, or the person to whose custody or care the minor has been committed, shall submit to the court every four months and as often as required in special cases, a written report on the good or bad conduct of said minor and the moral and intellectual progress made by him.

The suspension of the proceedings against a minor may be extended or shortened by the court on the recommendation of the Director of Public Welfare or his authorized representative or agents, or the superintendent of public schools or his representatives, according as to whether the conduct of such minor has been good or not and whether he has complied with the conditions imposed upon him, or not. The provisions of the first paragraph of this article shall not, however, be affected by those contained herein.

If the minor has been committed to the custody or care of any of the institutions mentioned in the first paragraph of this article, with the approval of the Director of Public Welfare and subject to such conditions as this official in accordance with law may deem proper to impose, such minor may be allowed to stay elsewhere under the care of a responsible person.

If the minor has behaved properly and has complied with the conditions imposed upon him during his confinement, in accordance with the provisions of this article, he shall be returned to the court in order that the same may order his final release.

In case the minor fails to behave properly or to comply with the regulations of the institution to which he has been committed or with the conditions imposed upon him when he was committed to the care of a responsible person, or in case he should be found incorrigible or his continued stay in such institution should be inadvisable, he shall be returned to the court in order that the same may render the judgment corresponding to the crime committed by him.

The expenses for the maintenance of a minor delinquent confined in the institution to which he has been committed, shall be borne totally or partially by his parents or relatives or those persons liable to support him, if they are able to do so, in the discretion of the court; Provided, That in case his parents or relatives or those persons liable to support him have not been ordered to pay said expenses or are found indigent and cannot pay said expenses, the municipality in which the offense was committed shall pay one-third of said expenses; the province to which the municipality belongs shall pay one-third; and the remaining one-third shall be borne by the National Government: Provided, however, That whenever the Secretary of Finance certifies that a municipality is not able to pay its share in the expenses above mentioned, such share which is not paid by said municipality shall be borne by the National Government. Chartered cities shall pay two-thirds of said expenses; and in case a chartered city cannot pay said expenses, the internal revenue allotments which may be due to said city shall be withheld and applied in settlement of said indebtedness in accordance with section five hundred and eighty-eight of the Administrative Code. (Article 80, Ibid.)

b. EXECUTION OF PRINCIPAL PENALTIES

ARESTO MAYOR TO RECLUSION PERPETUA: The penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future. (Article 86, Ibid.)

DESTIERRO: Any person sentenced to destierro shall not be permitted to enter the place or places designated in the sentence, nor within the radius therein specified, which shall be not more than 250 and not less than 25 kilometers from the place designated. (Article 87, Ibid.)

ARRESTO MENOR: The penalty of arresto menor shall be served in the municipal jail, or in the house of the defendant himself under the surveillance of an officer of the law, when the court so provides in its decision, taking into consideration the health of the offender and other reasons which may seem satisfactory to it. (Article 88, Ibid.)

a. Three-fold rule

1) Concept

The maximum duration of the convict’s sentence shall not be more than three-fold the length of time corresponding to the most severe of the penalties imposed upon him. No other penalty to which he may be liable shall be inflicted after the sum total of those imposed equals the same maximum period. (Paragrapph 4, Article 70, Ibid.)

Such maximum period shall in no case exceed forty years. (Paragrapph 5, Article 70, Ibid.)

In applying the provisions of this rule the duration of perpetual penalties (pena perpetua) shall be computed at thirty years. (Last Paragrapph, Article 70, Ibid.)

APPLICATION: tThe correct rule is to multiply the highest principal penalty by 3 and the result will be the aggregate principal penalty which the prisoner has to serve, plus the payment of all the indemnities which he has been sentenced to pay, with or without subsidiary imprisonment depending upon whether or not the principal penalty exceeds 6 years. (Bagtas v. Director of Prisons, En Banc, G.R. No. L-3215, 06 October 1949)

b. Probation Law

1) Concepts

“Probation” is a disposition under which a defendant, after conviction and sentence, is released subject to conditions imposed by the court and to the supervision of a probation officer. (Section 3[a], P.D. 968, a.k.a. Probation Law, as amended by R.A. 10707)

“Probationer” means a person placed on probation. (Section 3[b], Ibid.)

“Probation Officer” means one who investigates for the court a referral for probation or supervises a probationer or both. (Section 3[c], Ibid.)

1) Grant of Probation

SUSPENSION OF EXECUTION OF SENTENCE UPON APPLICATION: Subject to the provisions of the Probation Law, the trial court may, after it shall have convicted and sentenced a defendant for a probationable penalty and upon application by said defendant within the period for perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best. (Section 4, Ibid.)

SAME; APPLICATION DENIED IF DEFENDANT APPEALS; EXCEPTION; No application for probation shall be entertained or granted if the defendant has perfected the appeal from the judgment of conviction: Provided, That when a judgment of conviction imposing a non-probationable penalty is appealed or reviewed, and such judgment is modified through the imposition of a probationable penalty, the defendant shall be allowed to apply for probation based on the modified decision before such decision becomes final. The application for probation based on the modified decision shall be filed in the trial court where the judgment of conviction imposing a non-probationable penalty was rendered, or in the trial court where such case has since been re-raffled. In a case involving several defendants where some have taken further appeal, the other defendants may apply for probation by submitting a written application and attaching thereto a certified true copy of the judgment of conviction. (Ibid.)

SAME; ACTION ON APPLICATION: The trial court shall, upon receipt of the application filed, suspend the execution of the sentence imposed in the judgment. (Paragraph 2, Section 4, Ibid.)

SAME; LOSES PROBATION IF A REVIEW OF MODIFIED DECISION IS SOUGHT: This notwithstanding, the accused shall lose the benefit of probation should he seek a review of the modified decision which already imposes a probationable penalty. (Paragraph 3, Section 4, Ibid.)

IMPRISONMENT OR FINE; WAIVER OF APPEAL: Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. The filing of the application shall be deemed a waiver of the right to appeal. (Last Paragraph, Section 4, Ibid.)

a) Post-sentence Investigation

No person shall be placed on probation except upon prior investigation by the probation officer and a determination by the court that the ends of justice and the best interest of the public as well as that of the defendant will be served thereby. (Section 5, Ibid.)

b) Criteria for Placing an Offender on Probation

In determining whether an offender may be placed on probation, the court shall consider all information relative, to the character, antecedents, environment, mental and physical condition of the offender, and available institutional and community resources. Probation shall be denied if the court finds that:

1) the offender is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

2) there is undue risk that during the period of probation the offender will commit another crime; or

3) probation will depreciate the seriousness of the offense committed. (Section 8, Ibid.)

c) Disqualified Offenders

The benefits of this Decree shall not be extended to those:

1) Sentenced to serve a maximum term of imprisonment of more than six (6) years;

2) Convicted of any crime against the national security;

3) Who have previously been convicted by final judgment of an offense punished by imprisonment of more than six (6) months and one (1) day and/or a fine of more than one thousand pesos (P1,000.00);

4) Who have been once on probation under the provisions of this Decree; and

5) Who are already serving sentence at the time the substantive provisions of this Decree became applicable pursuant to Section 33 hereof. (Section 9, Ibid.)

d) Conditions of Probation

Every probation order issued by the court shall contain conditions requiring that the probationer shall:

1) present himself to the probation officer designated to undertake his supervision at such place as may be specified in the order within seventy-two hours from receipt of said order;

2) report to the probation officer at least once a month at such time and place as specified by said officer.

The court may also require the probationer to:

1) cooperate with a program of supervision;

2) meet his family responsibilities;

3) devote himself to a specific employment and not to change said employment without the prior written approval of the probation officer;

4) undergo medical, psychological or psychiatric examination and treatment and enter and remain in a specified institution, when required for that purpose;

5) pursue a prescribed secular study or vocational training;

6) attend or reside in a facility established for instruction, recreation or residence of persons on probation;

7) refrain from visiting houses of ill-repute;

8) abstain from drinking intoxicating beverages to excess;

9) permit to probation officer or an authorized social worker to visit his home and place or work;

10) reside at premises approved by it and not to change his residence without its prior written approval; or

11) satisfy any other condition related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience. (Section 10, Ibid.)

e) Effectivity of Probation Order

A probation order shall take effect upon its issuance, at which time the court shall inform the offender of the consequences thereof and explain that upon his failure to comply with any of the conditions prescribed in the said order or his commission of another offense, he shall serve the penalty imposed for the offense under which he was placed on probation. (Section 11, Ibid.)

f) Modification of Condition of Probation

During the period of probation, the court may, upon application of either the probationer or the probation officer, revise or modify the conditions or period of probation. The court shall notify either the probationer or the probation officer of the filing such an application so as to give both parties an opportunity to be heard thereon.

The court shall inform in writing the probation officer and the probationer of any change in the period or conditions of probation. (Section 12, Ibid.)

g) Period of Probation

IMPRISONMENT: The period of probation of a defendant sentenced to a term of imprisonment of not more than one year shall not exceed two years, and in all other cases, said period shall not exceed six years. (Section 14[a], Ibid.)

FINE: When the sentence imposes a fine only and the offender is made to serve subsidiary imprisonment in case of insolvency, the period of probation shall not be less than nor to be more than twice the total number of days of subsidiary imprisonment as computed at the rate established, in Article thirty-nine of the Revised Penal Code, as amended. (Section 14[b], Ibid.)

2) Control and Supervision of Probationer

The probationer and his probation program shall be under the control of the court who placed him on probation subject to actual supervision and visitation by a probation officer.

Whenever a probationer is permitted to reside in a place under the jurisdiction of another court, control over him shall be transferred to the Executive Judge of the Court of First Instance of that place, and in such a case, a copy of the probation order, the investigation report and other pertinent records shall be furnished said Executive Judge. Thereafter, the Executive Judge to whom jurisdiction over the probationer is transferred shall have the power with respect to him that was previously possessed by the court which granted the probation. (Section 13, Ibid.)

a) Arrest of Probationer; Subsequent Disposition

At any time during probation, the court may issue a warrant for the arrest of a probationer for violation of any of the conditions of probation. The probationer, once arrested and detained, shall immediately be brought before the court for a hearing, which may be informal and summary, of the violation charged. The defendant may be admitted to bail pending such hearing. In such a case, the provisions regarding release on bail of persons charged with a crime shall be applicable to probationers arrested under this provision. If the violation is established, the court may revoke or continue his probation and modify the conditions thereof. If revoked, the court shall order the probationer to serve the sentence originally imposed. An order revoking the grant of probation or modifying the terms and conditions thereof shall not be appealable. (Section 15, Ibid.)

3) Termination of Probation

After the period of probation and upon consideration of the report and recommendation of the probation officer, the court may order the final discharge of the probationer upon finding that he has fulfilled the terms and conditions of his probation and thereupon the case is deemed terminated.

The final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to totally extinguish his criminal liability as to the offense for which probation was granted.

The probationer and the probation officer shall each be furnished with a copy of such order. (Section 16, Ibid.)

c. Juvenile Justice and Welfare Act

1) Concepts

“Child” refers to a person under the age of eighteen (18) years. (Section 4[c], R.A. 9344, Juvenile Justice Welfare Act of 2006)

“Child at Risk” refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following:

1) being abused by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwilling, or unable to provide protection for the child;

2) being exploited including sexually or economically;

3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found;

4) coming from a dysfunctional or broken family or without a parent or guardian;

5) being out of school;

6) being a streetchild;

7) being a member of a gang;

8) living in a community with a high level of criminality or drug abuse; and

9) living in situations of armed conflict. (Section 4[d], Ibid.)

“Child in Conflict with the Law” refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (Section 4[e], Ibid.)

“Community-based Programs” refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. (Section 4[f], Ibid.)

“Deprivation of Liberty” refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority. (Section 4[h], Ibid.)

“Diversion” refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law on the basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (Section 4[i], Ibid.)

“Diversion Program” refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceedings. (Section 4[j], Ibid.)

“Initial Contact With-the Child” refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to place the child alleged to be in conflict with the law under immediate custody. (Section 4[k], Ibid.)

“Intervention” refers to a series of activities which are designed to address issues that caused the child to commit an offense. It may take the form of an individualized treatment program which may include counseling, skills training, education, and other activities that will enhance his/her psychological, emotional and psycho-social well-being. (Section 4[l], Ibid.)

“Juvenile Justice and Welfare System” refers to a system dealing with children at risk and children in conflict with the law, which provides child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (Section 4[m], Ibid.)

“Recognizance” refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (Section 4[p], Ibid.)

“Restorative Justice” refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation for the victim; reconciliation of the offender, the offended and the community; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (Section 4[q], Ibid.)

“Status Offenses” refers to offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations; truancy, parental disobedience and the like. (Section 4[r], Ibid.)

“Victimless Crimes” refers to offenses where there is no private offended party. (Section 4[u], Ibid.)

2) Rights of the Child in Conflict with the Law

Every child in conflict with the law shall have the following rights, including but not limited to:

1) the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment;

2) the right not to be imposed a sentence of capital punishment or life imprisonment, without the possibility of release;

3) the right not to be deprived, unlawfully or arbitrarily, of his/her liberty; detention or imprisonment being a disposition of last resort, and which shall be for the shortest appropriate period of time;

4) the right to be treated with humanity and respect, for the inherent dignity of the person, and in a manner which takes into account the needs of a person of his/her age. In particular, a child deprived of liberty shall be separated from adult offenders at all times. No child shall be detained together with adult offenders. He/She shall be conveyed separately to or from court. He/She shall await hearing of his/her own case in a separate holding area. A child in conflict with the law shall have the right to maintain contact with his/her family through correspondence and visits, save in exceptional circumstances;

5) the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his/her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on such action;

6) the right to bail and recognizance, in appropriate cases;

7) the right to testify as a witness in hid/her own behalf under the rule on examination of a child witness;

8) the right to have his/her privacy respected fully at all stages of the proceedings;

9) the right to diversion if he/she is qualified and voluntarily avails of the same;

10) the right to be imposed a judgment in proportion to the gravity of the offense where his/her best interest, the rights of the victim and the needs of society are all taken into consideration by the court, under the principle of restorative justice;

11) the right to have restrictions on his/her personal liberty limited to the minimum, and where discretion is given by law to the judge to determine whether to impose fine or imprisonment, the imposition of fine being preferred as the more appropriate penalty;

12) in general, the right to automatic suspension of sentence;

13) the right to probation as an alternative to imprisonment, if qualified under the Probation Law;

14) the right to be free from liability for perjury, concealment or misrepresentation; and,

15) other rights as provided for under existing laws, rules and regulations. (Section 5, Ibid.)

2) Minimum Age of Criminal Responsibility

A child fifteen (15) years of age or under at the time of the commission of the offense shall be exempt from criminal liability. However, the child shall be subjected to an intervention program pursuant to Section 20 of this Act. (Section 6, Ibid.)

A child above fifteen (15) years but below eighteen (18) years of age shall likewise be exempt from criminal liability and be subjected to an intervention program, unless he/she has acted with discernment, in which case, such child shall be subjected to the appropriate proceedings in accordance with this Act. (Paragraph 2, Section 5, Ibid.)

The exemption from criminal liability herein established does not include exemption from civil liability, which shall be enforced in accordance with existing laws. (Paragrpah 3, Section 5, Ibid.)

3) Determination of Age

The child in conflict with the law shall enjoy the presumption of minority. He/She shall enjoy all the rights of a child in conflict with the law until he/she is proven to be eighteen (18) years old or older. The age of a child may be determined from the child’s birth certificate, baptismal certificate or any other pertinent documents. In the absence of these documents, age may be based on information from the child himself/herself, testimonies of other persons, the physical appearance of the child and other relevant evidence. In case of doubt as to the age of the child, it shall be resolved in his/her favor. (Section 7, Ibid.)

Any person contesting the age of the child in conflict with the law prior to the filing of the information in any appropriate court may file a case in a summary proceeding for the determination of age before the Family Court which shall decide the case within twenty-four (24) hours from receipt of the appropriate pleadings of all interested parties. (Paragraph 2, Section 7, Ibid.)

If a case has been fiied against the child in conflict with the law and is pending in the appropriate court, the person shall file a motion to determine the age of the child in the same court where the case is pending. Pending hearing on the said motion, proceedings on the main case shall be suspended. (Paragraph 3, Section 7, Ibid.)

In all proceedings, law enforcement officers, prosecutors, judges and other government officials concerned shall exert all efforts at determining the age of the child in conflict with the law. (Paragraph 4, Section 7, Ibid.)

d. Republic Act No. 10951

NB: For adjusted penalties, see: Part 2 > Q. PenaltiesAdded

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