Effect Of The Attendance Of Mitigating Or Aggravating Circumstances And Of Habitual Delinquency

ART. 62

Par. 1:
Aggravating circumstances are not to be taken into account when:
1. they themselves constitute a crime. Ex. by “means of fire” – arson
2. they are included by law in the definition of a crime

Par. 2:
Same rules apply when the aggravating circumstance is inherent in the crime

Par. 3:
Aggravating or mitigating circumstances arising from any of the following affect only those to whom such circumstances are attendant:
1. from the moral attributes of the offender
2. from his private relations w/ the offended party
3. from any other personal cause

Par. 4:
The circumstances which consist of the following shall serve to aggravate and mitigate the liability only of those who had knowledge of them at the time of the commission of the offense
1. material execution of the act
2. means employed to accomplish the crime

Par. 5:
Habitual Delinquent is a person who within the period of 10 years from the date of his (last) release or last conviction of the crimes of:
1. Falsification
2. Robbery
3. Estafa
4. Theft
5. Serious or less serious physical injuries is found guilty of any of the said crimes a third time or oftener.

Effects of the circumstances:
- Aggravating circumstances (generic and specific) have the effect of increasing the penalty, without however exceeding the maximum period provided by law.
- Mitigating circumstances have the effect of diminishing the penalty.
- Habitual delinquency has the effect, not only of increasing the penalty because of recidivism which is generally implied in habitual delinquency, but also of imposing an additional penalty.
- Ten year period to be computed from the time of last release or conviction
- Subsequent crime must be committed after conviction of the former crime. Cases still pending are not to be taken into consideration.

Habitual Delinquency and Recidivism Compared.
1. Habitual Delinquency - Crimes to be committed are specified
    Recidivism - Same title
2. Habitual Delinquency - W/ in 10 years
    Recidivism - No time fixed by law
3. Habitual Delinquency - Must be found guilty 3rd time or oftener
    Recidivism - Second conviction
4. Habitual Delinquency - Additional penalty is imposed
    Recidivism - Is not offset by MC, increases penalty to maximum

REQUISITES Of Habitual Delinquency:
1. That the offender had been convicted of any of the crimes of serious or less serious physical injuries, robbery, theft, estafa or falsification
2. That after conviction or after serving his sentence, he again committed, and, within 10 years from his last release of first conviction, he was again convicted of any of the said crimes for the second time
3. That after his conviction of, or after serving sentence for the second offense, he again committed, and, within 10 years from his last release or last conviction, he was again convicted of any of said offenses, the third time or oftener

Rulings on Habitual Delinquency:
1. The law on habitual delinquency does not contemplate the exclusion from the computation of prior conviction those falling outside the 10-year period immediately preceding the crime for which the defendant is being tried.
2. Ten-year period is counted not from the date of commission of the subsequent offense but from the date of conviction thereof in relation to the date of his last release or last conviction.
3. When an offender has committed several crimes mentioned in the definition of habitual delinquent, without being first convicted of any of them before committing the others, he is not a habitual delinquent.
4. Convictions on the same day or at about the same time are considered as one only (days, weeks..).
5. Crimes committed on the same date, although convictions on different dates are considered as one.
6. Previous convictions are considered every time a new offense is committed.
7. Commissions of those crimes need not be consummated.
8. Habitual delinquency applies to accomplices and accessories.
9. A crime committed during the minority of the offender is not counted because proceedings as regards that crime are suspended.
10.Imposition of additional penalty is mandatory and constitutional.
11. Modifying circumstances are applicable to an additional penalties.
12. Habitual delinquency is not a crime. It is simply a fact or circumstance which if present gives rise to the imposition of additional penalty.
13. Penalty for habitual delinquency is a real penalty that determines jurisdiction.
14. A habitual delinquent is necessarily a recidivist.
15. In imposing the additional penalty, recidivism is not aggravating. The additional penalty must be imposed at its minimum.
16. An offender can be a habitual delinquent without being a recidivist when no two of the crimes committed are embraced in the same title of the Code.


In no case shall the total penalties imposed upon the offender exceed 30 years.

The imposition of the additional penalties on habitual delinquents is constitutional, it is simply a punishment on future crimes on account of the criminal propensities of the accused.

The imposition of such additional penalties is mandatory.

Habitual delinquency applies at any stage of the execution because subjectively, the offender reveals the same degree of depravity or perversity as the one who commits a consummated crime.

Habitual delinquency applies to all participants because it reveals persistence in them of the inclination to wrongdoing and of the perversity of character that led them to commit the
previous crime.

1998 Bar Examination Question (Aggravating; Recidivism; Quasi-Recidivism)

Distinguish between recidivism and quasi-recidivism.

In recidivism
1. The convictions of the offender are for crimes embraced in the same title of the Revised Penal Code; and
2. This circumstance is generic aggravating and therefore can be effectively offset by ordinary mitigating circumstances.

Whereas in quasi-recidivism
1. The convictions are not for crimes embraced in the same title of the Revised Penal Code, provided that it is a felony that was committed by the offender before serving sentence by final judgment for another crime or while serving sentence for another crime; and
2. This circumstance is a special aggravating circumstance that cannot be offset by any mitigating circumstance.

Bar Exam Question (2001) Habitual Delinquency & Recidivism

Juan de Castro already had three (3) previous convictions by final judgment for theft when he was found guilty of Robbery with Homicide. in the last case, the trial judge considered against the accused both recidivism and habitual delinquency. The accused appealed and contended that in his last conviction, the trial court cannot consider against him a finding of recidivism and, again, of habitual delinquency.

Is the appeal meritorious? Explain.

Suggested Answer:

No, the appeal is not meritorious. Recidivism and habitual delinquency are correctly considered in this case because the basis of recidivism is different from that of habitual delinquency. Juan is a recidivist...Habitual delinquency, which brings about an additional penalty when an offender is convicted a third time or more specified crimes, is correctly considered because one had already three (3) previous convictions by final judgment for theft and again convicted for Robbery with Homicide. And the crimes specified as a basis for habitual delinquency includes, inter alia, theft, and robbery.