Rules Governing Subsidiary Imprisonment

Art. 39. Subsidiary Penalty. — If the convict has no property with which to meet the fine
mentioned in the paragraph 3 of the nest 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:

1. If the principal penalty imposed be prision correccional or arresto and fine, he shall remain
under confinement until his fine referred to in the preceding paragraph is satisfied, but his
subsidiary imprisonment shall not exceed one-third of the term of the sentence, and in no case
shall it continue for more than one year, and no fraction or part of a day shall be counted against
the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not
exceed six months, if the culprit shall have been prosecuted for a grave or less grave felony, and
shall not exceed fifteen days, if for a light felony.

3. When the principal imposed is higher than prision correccional, no subsidiary imprisonment
shall be imposed upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but
such penalty is of fixed duration, the convict, during the period of time established in the
preceding rules, shall continue to suffer the same deprivations as those of which the principal
penalty consists.

5. The subsidiary personal liability which the convict may have suffered by reason of his
insolvency shall not relieve him, from the fine in case his financial circumstances should improve.
(As amended by RA 5465, April 21, 1969).. (Revised Penal Code)

What is subsidiary penalty?

It is a penalty that take the place of the fine for insolvent convicts. It is neither a principal
nor accessory penalty but a substitute penalty for fine only. (Boado)

When is subsidiary penalty served?

Subsidiary penalty is served if the penalty imposed upon the convict includes fine but he
cannot pay the same because of insolvency.

How is subsidiary penalty computed?

It is computed at one day for each P8.00 of fine but in no case to exceed one year at the
most. If the penalty is:

1. Purely a fine and the felony committed is grave or less grave, the subsidiary
imprisonment shall not exceed 6 months; if light felony, not more than 15 days.

Example: Fine of P4,000 + less grave. P4,000/P8 = 500 days. Since the felony is
less grave, the subsidiary imprisonment will be limited to only 6 months or 180 days.

2. Fine and imprisonment of not more than prision correccional (6 years), the
subsidiary imprisonment is computed at 1/3 of the principal penalty or the quotient
of fine divided by P8.00 or 1 year, whichever of these three is least.

Example: Fine of P4,000 + 6 years of prision correccional. P4,000/P8 = 500 days.

One-third of 6 years is 2 years. The period of 500 days is less than 1/3 of the
principal penalty. But the offender is to serve 365 days only of the 500 days because
the law provides that subsidiary imprisonment shall not continue longer than 1 year
or 365 days.

3. Fine and Destierro which must be of a fixed duration: destierro also in

accordance with the above rules. The same goes with fine and suspension.

When is subsidiary penalty not proper?

It is not proper when:

1. The principal penalty imposed is more than prision correccional (more than 6
years);
2. The principal penalty is not to be served by confinement and is not of fixed
duration (ex. fine not exceeding P200 and censure);
3. Subsidiary penalty is not expressly stated in the sentence to take the place of
fine in case of insolvency;
4. The sentence imposed does not include fine; and
5. If convict has the means to pay the fine.

■ The additional penalty for habitual delinquency is included in determining whether the
subsidiary penalty is to be imposed. So, if even if the principal penalty is less than prison
correccional and fine but there is an additional penalty of 12 years and 1 day because the
offender is a habitual delinquent, there is no subsidiary imprisonment. (People vs.
Concepcion, G.R. No. 46652, September 23, 1939)

■ If the offender has been sentenced to several penalties, the aggregate penalties should
be considered in bulk, not separately. So if the aggregate penalty exceeds 6 years, there is
no subsidiary imprisonment. (Toledo vs. Supt. of the Correctional Institution for Women, No.
L-16311, Jan. 25, 1962)

May the offender be made to undergo the subsidiary imprisonment if it is not

expressly provided in the judgment?

No. The court must expressly state that subsidiary penalty shall be served in case of
insolvency because this is not an accessory penalty that follows the principal penalty as a
matter of course.

May the convict choose to serve the subsidiary imprisonment in lieu of paying the
fine?

No. If the convict has properties, he has no option to serve the subsidiary imprisonment
because subsidiary imprisonment is applied only in case of insolvency.

Does subsidiary penalty apply to criminal negligence?

Yes.

May an accused found guilty of violations of Batas Pambansa Blg. 22 be made to

suffer subsidiary imprisonment in case he fails to pay the fines imposed by the trial
court for such violations (notwithstanding that it is a special law and does not contain
a provision for subsidiary imprisonment)?

■ Yes. The provisions on subsidiary imprisonment can be applied suppletorily to Batas

Pambansa Blg. 22 pursuant to Article 10 of the RPC.

On February 14, 2001, we issued Administrative Circular No. 13-2001 clarifying the
imposition of imprisonment for violations of Batas Pambansa Blg. 22 and subsidiary
imprisonment upon the accused found guilty but is unable to pay the fine he is sentenced
to pay. In clarifying the imposition of subsidiary imprisonment, the Circular states that if the
accused is unable to pay the fine imposed by the trial court, there is no legal obstacle to the
application of the Revised Penal Code provisions on subsidiary imprisonment. (Jao Yu vs.
People, G.R. No. 134172. September 20, 2004)

■ The Supreme Court has, on several occasions, imposed subsidiary imprisonment in case
of insolvency to pay the fine for violation of special laws, notwithstanding the absence of
such provision in said laws. In Llamado v. Court of Appeals, the SC imposed subsidiary
imprisonment on petitioner who was convicted of violating B.P. Blg. 22. (Diongson vs.
CA, G.R. No. 114823, December 23, 1999)

When after the culprit had served subsidiary penalty, he became solvent, is he still
liable to pay the fine?

Yes. Subsidiary imprisonment does not extinguish the non-payment of fine. Article 39 of the
RPC provides that the subsidiary personal liability which the convict may have suffered by
reason of his insolvency shall not relieve him, from the fine in case his financial
circumstances should improve.

Does subsidiary imprisonment violate the constitutional prohibition imprisonment for

non-payment of debt?

No. The debt intended to be covered by the constitutional provisions must be a debt arising
exclusively from actions ex contractu, and was never meant to include damages arising in
actions ex delicto, or fines, penalties, and other impositions imposed by the courts in
criminal proceedings as punishments for crimes committed against the common or statute
law. (US vs. Cara, 41, Phil 828)