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[CLEMENCIO C. RAMIREZ v. SANDIGANBAYAN](http://lawyerly.ph/juris/view/c6469?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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EN BANC

[ GR No. 56441, Jul 25, 1983 ]

CLEMENCIO C. RAMIREZ v. SANDIGANBAYAN +

DECISION

208 Phil. 627

EN BANC

[ G.R. No. 56441, July 25, 1983 ]

CLEMENCIO C. RAMIREZ, PETITIONER, VS. HON. SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.

D E C I S I O N

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 P68,057.97. He had pleaded guilty. The penalty for the offense is reclusion temporal maximum to reclusion 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 from prision mayor maximum to reclusion temporal medium, 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 from prision correccional maximum to prision mayor medium, 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 of prision correccional, as minimum, to twelve (12) years and one day of reclusion temporal, as 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 the maximum term of which shall be that which, in view of the attending circumstances, could be properly imposed under the rules of the said Code, and to a minimum which 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 from reclusion temporal minimum, or from the medium 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 from prision correccional maximum.

The accused in his motions for reconsideration in 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 of four years, two months and one day to six years (pp. 13 and 31, Rollo).

However, in this petition for review he prays that he be sentenced to four years, two months and one day to ten years and one day.

We hold that he may be given as minimum penalty four (4) years, two (2) months and one (1) day of prision correccional maximum. That is allowed by law. But the maximum penalty 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 of prision mayor maximum. 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 from September 13, 1981 to August 5, 1983 constitute 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 of prision correccional as minimum to ten years and one day of prision mayor as maximum. No costs.

SO ORDERED.

Fernando, C.J., Concepcion Jr., Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., took no part.
Makasiar, J., dissents. The decision should be affirmed. The penalty is within the maximum and minimum range allowed by law. The lower court did not commit any error nor abuse of discretion. The majority opinion tends to pamper grafters.


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