G.R. No. L-56441 - Clemencio C. Ramirez vs. Sandiganbayan

Manila

EN BANC

G.R. No. L-56441 July 25, 1983

CLEMENCIO C. RAMIREZ,petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,respondents

Clemencio C. Ramirez in his own behalf.

The Solicitor General for respondents.

AQUINO,J.:

This is a plea of the accused for the reduction of his penalty for the malversation of P68,057.97.

Clemencio C. Ramirez, a collection agent of the Bureau of Internal Revenue at Bauang, La Union was convicted by the Sandiganbayan in a decision dated February 23, 1981 for having malversed P 68,057.97. He had pleaded guilty. The penalty for the offense isreclusion temporalmaximum toreclusion perpetua(Par. 4, Art. 217 of the Revised Penal Code as amended by Republic Act No. 1060).

That penalty should be lowered by one degree because of the presence of two mitigating circumstances: plea of guilty and voluntary surrender to the authorities. So, the maximum of the indeterminate penalty should be taken fromprision mayormaximum toreclusion temporalmedium, or ten years and one day to seventeen years and four months (Par. 5, Art. 64, Revised Penal Code).

And the minimum penalty should be taken fromprision correccionalmaximum toprision mayormedium, or four years, two months and one day to ten years.

Ramirez was sentenced to an indeterminate penalty of five (5) years, five (5) months and eleven (11) days ofprision correccional,as minimum, to twelve (12) years and one day ofreclusion temporalas maximum, and to pay a fine of P68,057.97 and a similar indemnity with the additional penalty of perpetual special disqualification.

Section 1 of the Indeterminate Sentence Law provides that "the court shall sentence the accused to an indeterminate sentence themaximum termof which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to aminimumwhich shall be within the range of the penalty next lower to that prescribed by the Code for the offense."

The Sandiganbayan took the maximum of the indeterminate penalty fromreclusion temporalminimum, or from themedium period,on the theory that, since the two extenuating circumstances were already taken into account in lowering the penalty by one degree, they should not again be taken into account in determining the maximum of the penalty. It applied the provision of rule 1 of article 64 that "when there are neither aggravating nor mitigating circumstances, they shall impose the penalty prescribed by law in its medium period. "

Using its discretion, the Sandiganbayan took the minimum of the indeterminate penalty from the minimum period of the penalty next lower in degree, or fromprision correccionalmaximum.ℒαwρhi৷

The accused in hismotions for reconsiderationin the Sandiganbayan and in this Court insists that, out of compassion to a first offender and to a lawyer, he should be sentenced to an indeterminate penalty offour years, two months and one day to six years(pp. 13 and 31, Rollo).

However, in thispetition for reviewhe prays that he be sentenced to four years, two months and one day toten years and one day.

We hold that he may be given as minimum penalty four (4) years, two (2) months and one (1) day ofprision correccionalmaximum. That is allowed by law. But themaximumpenalty cannot be reduced to six years. That is not authorized by law.

As prayed in his basic petition, the maximum of his penalty may be ten (10) years and one (1) day ofprision mayormaximum. This matter rests in the discretion of the court according to paragraph 5 of article 64 itself. (People vs. Oraza, 83 Phil. 633.)

Parenthetically, it should be noted that the extensions sought by the accused fromSeptember 13, 1981 to August 5, 1983constitute an abuse of the legal process. His last extension, which will serve no purpose, is denied.

WHEREFORE,the judgment of the Sandiganbayan is affirmed with the modification that the accused is sentenced to an indeterminate penalty of four years, two months and one day ofprision correccionalas minimum to ten years and one day ofprision mayoras maximum. No costs.

SO ORDERED.

Fernando, CJ., Concepcion Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.

Teehankee, J., took no part.

Separate Opinions

MAKASIAR,J.,dissenting;

I dissent. The decision should be affirmed. The penalty is within the minimum and maximum ranges allowed by law. The lower court did not commit any error nor abuse of discretion. The majority opinion tends to pauper grafters.