G.R. No. L-3463. March 06, 1950
LEONCIO ROSARES, PETITIONER, VS. DIRECTOR OF PRISONS, RESPONDENT.
MONTEMAYOR, J.:
filed in this Court on November 14, 1948, Leoncio Rosares alleged that his
maximum term of imprisonment was six (6) years. On that basis, computing his
period of imprisonment already served, including preventive imprisonment as well
as the period allowed for good conduct, it was found that he had yet to serve
the subsidiary imprisonment provided by law because of non-payment of the
indemnity of P2,000, which formed part of his sentence in a decision of the
Court of First Instance of Leyte finding him guilty of homicide. For that reason
his petition was denied in a resolution dated November 17, 1949.
The petitioner has now filed a second petition on February 9, 1950, asking
for a reconsideration of our resolution, alleging that his true maximum
imprisonment was six (6) years and one (1) day and not only six (6) years as
erroneously alleged in his first petition. This addition of one day to the
period of imprisonment raises the prison sentence from prision
correccional to prision mayor and places the case within the terms
of Art. 39, par. 3 of the Revised Penal Code which provides that when the
principal penalty imposed is higher than prision correccional no
subsidiary imprisonment shall be imposed upon the culprit. The record shows that
without this subsidiary imprisonment petitioner has already served his sentence,
in fact, with a little excess. The Solicitor General who represents the
respondent Director of Prisons after conducting the necessary investigation
makes the same finding and recommends that petitioner be now released.
In view of the foregoing considerations, the resolution of November 17, 1949,
is hereby set aside; the second petition is granted and petitioner Leoncio
Rosares is ordered released, unless, there be any other lawful cause for his
further detention. No costs.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Tuason, and
Reyes, JJ., concur.