Who are considered recidivists?

Dear PAO,

My husband is a convicted prisoner serving his sentence at the San Ramon Penal Farm in Zamboanga City. I wrote a letter to the director of Bureau of Corrections requesting for recomputation of expiration of sentence to include the deductions he is entitled to under the Good Conduct Time Allowance (GCTA). In reply, I was informed that my husband IS NOT ENTITLED TO THE BENEfiTS of the GCTA because he was a recidivist. Please enlighten me on this matter. Who are considered recidivists?

Liezel

Dear Liezel,

A recidivist is one who, at the time of his trial for one offense, shall have been previously convicted by final judgment of another crime embraced by the same title of this Code (Paragraph 9, Article 14, Revised Penal Code or RPC). Recidivism is considered an ordinary aggravating circumstance under the RPC and in order to be appreciated as such, it is important that the following elements are present: at the time of his trial of another crime, which is subject of aggravation; the accused have been previously convicted of a crime by a final judgment; and the previous crime and the subject crime are covered by the same time of the RPC.

These crimes, or more appropriately called felonies, are classified, defined and penalized in Book 2 of the said Code according to their nature like crimes against national security, against fundamental laws of the state, against public order, against public interest, against persons, against property and so forth.

In recidivism, the previous felony from which the felon was convicted and the present felony under trial are embraced by the same title of the RPC. Hence, previous conviction for homicide will not aggravate the subsequent trial for robbery because homicide is a crime against a person, while robbery is a crime against property. However, previous conviction of homicide will aggravate the crime of rape, since both are crimes against persons embraced under Title 8 of the RPC, as amended by Republic Act (RA) 8353. Similarly, previous conviction for violation of RA 9165 will not aggravate crimes defined and punished by the RPC since RA 9165 is a special law and, obviously, it is not a crime covered by the RPC. Otherwise put, recidivism covers crimes covered by the RPC and embraced by the same Title of the said Code.

In order for recidivism to be appreciated as an aggravating circumstance, it is important that previous felony has attained its finality. Under Section 7, Rule 120 of the Rules of Court, a judgment in a criminal case becomes final in the following instances: after the lapse of period for perfecting an appeal; when the sentence has been partially or totally satisfied or served; when the accused has waived in writing his right to appeal; and when the accused applies for probation. Thus, when the case is on appeal, his criminal liability under such crime will not be aggravated by recidivism since the case is not yet final.

We hope that we were able to answer your queries. This advised is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.