Subsidiary imprisonment expressly stated in conviction judgment

People v. Fajardo (65 Phil. 539, 1938), in relation to Republic Act. No. 5465 which amended Article 39 of the RPC, discusses the rationale behind the necessity for expressly imposing subsidiary imprisonment in the judgment of conviction, viz:
The first paragraph of article 39 of the Revised Penal Code reads as follows:

ART. 39. Subsidiary penalty. - If the convict has no property with which to meet the fine mentioned in paragraph 3 of the next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos, subject to the following rules: ...

Article 78 of Chapter V of the same Code, in its pertinent part, which deals with the execution and service of penalties, provides:

ART. 78. When and how a penalty is to be executed. - No penalty shall 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.It is a fundamental principle consecration in section 3 of the Jones Law, the Act of Congress of the United States of America approved on August 29, 1916, which was still in force when the order appealed from was made, that no person may be deprived of liberty without due process of law. This constitutional provision was in a sense incorporated in article 78 of the Revised Penal Code prescribing that no penalty shall be executed except by virtue of a final judgment. As the fact show that there is no judgment sentencing the accused to suffer subsidiary imprisonment in case of insolvent to pay the fine imposed upon him, because the said subsidiary imprisonment is not stated in the judgment finding him guilty, it is clear that the court could not legally compel him to serve said subsidiary imprisonment. A contrary holding would be a violation of the laws aforementioned. That subsidiary imprisonment is a penalty, there can be no doubt, for, according to article 39 of the Revised Penal Code, it is imposed upon the accused and served by him in lieu of the fine which he fails to pay on account of insolvency. There is not a single provision in the Code from which it may be logically inferred that an accused may automatically be made to serve subsidiary imprisonment in a case where he has been sentenced merely to pay a fine and has been found to be insolvent. Such would be contrary to the legal provisions above-cited and to the doctrine laid down in United States vs. Miranda (2 Phil., 606, 610), in which it was said: "That judgment of the lower court fails to impose subsidiary imprisonment in case of insolvency for indemnification to the owner of the banca, but only imposes subsidiary punishment as to the costs. In this respect the judgment is erroneous and should be modified."

We, therefore, conclude that an accused who has been sentenced by final judgment to pay a fine only and is found to be insolvent and could not pay the fine for this reason, cannot be compelled to serve the subsidiary imprisonment provided for in article 39 of the Revised Penal Code.

Indeed, Administrative Circular No. 13-2001 provides that "should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to the application of the Revised Penal Code provisions on subsidiary imprisonment." However, the Circular does not sanction indiscriminate imposition of subsidiary imprisonment for the same must still comply with the law.

Here, the judgment of conviction did not provide subsidiary imprisonment in case of failure to pay the penalty of fine. Thus, subsidiary imprisonment may not be imposed without violating the RPC and the constitutional provision on due process.

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