One is enough, Two is too much: Recidivism as an Aggravating Circumstance

We shall discuss recidivism as an aggravating circumstance. Article 14, Paragraph 9 of the Revised Penal Code talks about one of aggravating circumstances. When being considered and appreciated as a generic aggravating circumstance, it increases the penalty for a crime to its maximum period, but it cannot increase the same to the next higher degree.

In this particular provision, the offender should be a recidivist. A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this code.¹ The basis of this aggravating circumstance is the greater perversity of the offender, which is shown by his inclination to crimes.²

What does the law say?

Article 14 par 9 of the Revised Penal Code provides that: The accused is a recidivist.³ As defined earlier, A recidivist is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of this code.⁴

The Elements of Recidivism

Before recidivism may be appreciated by court of justice, the following requisites must be present:

• That the offender is on trial for an offense
• That he was previously convicted by final judgment of another crime
• That both the first and the second offense are embraced in the same title of the Code
• That the offender is convicted of the new offense

Recidivism as an Aggravating Circumstance 

In order to gain a better understanding of the nature of this aggravating circumstance, we will now go through each of the prerequisites that were listed up top and describe them in sequential order, thereby, explaining the same in seriatim.

That the offender is on trial for an offense

The Honorable Court defined what is at the time of his trial for an offense in the case of People vs. Lagarto,⁵ in which the Court says “at the trial” is meant to include everything that is done in the course of the trial, from arraignment until after sentence is announced by the judge in open court.⁶

That he was previously convicted by final judgment of another crime

It bears stressing that the offender be convicted of the final judgment from his previous crime/s, otherwise, he is not a recidivist. In criminal case, when the accused has been convicted, a judgment becomes final when:

(1) after the lapse of the period for perfecting an appeal

(2) the sentence has been partially or totally satisfied or served

(3) the accused has waived in writing his right to appeal

(4) the accused has applied for probation

That both the first and the second offense are embraced in the same title of the Code

Criminal offenses in Book 2 of the Revised Penal Code are categorized and grouped in different titles. Before an offender becomes a recidivist, his previous offense or crimes shall belong under the same title of the Revised Penal Code.

A very good example of this is when an accused was convicted of the crime of theft in his previous offense. Then, he committed robbery as the second felony, granting the other elements of both crimes are present, he is considered as recidivist because theft and robbery are both felonies against property under Title Ten of the Revised Penal Code.

However, what if the offender was convicted of special law or an ordinance and he was then convicted of crime under Revised Penal Code. Is he considered as recidivist? The Supreme Court, answered in negative.

The Court held that when one offense is punishable only by an ordinance or special law and the other by Revised Penal Code, the two offenses are not embraced in the same title of the Code.⁷

That the offender is convicted of the new felony

In relation with the second requisite, the offender shall be also convicted of the new offense for him to be considered as recidivist. If he is acquitted, there is not second felony committed to speak of.

That the accused’s conviction must relate to prior felony committed

The first conviction must relate to a felony antedating the commission of the second offense. Thus:

The Solicitor-General contends that if the allegations of the information relative to the former convictions of the appellant are insufficient to warrant his being declared a habitual delinquent, they are sufficient, at least, to constitute the aggravating circumstance of recidivism of reiteracion. This court does not agree to this proposition. In order that former convictions may constitute the circumstance of recidivism or reiteracion, they must arise from crimes prior to that charged, and there is no such allegation in the information.⁸

Jurisprudence related to Recidivism

For Recidivism to be appreciated, it must be alleged in the Information. Like other Aggravating Circumstances, the Court ruled that Recidivism shall be alleged in the Information. In the case of People vs Hermosilla⁹, the Court ruled that:

“To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused to be presented during the trial. The same should actually be admitted as evidence with the knowledge of the accused (U.S. vs. De Mesa, 7 Phil. 729; People vs. Scott, 62 Phil. 553). Hence, the death penalty was erroneously imposed.”¹⁰

In the case of People vs. Molina¹¹ the Court held that:

“On the aggravating circumstance of recidivism, the trial court properly appreciated the same though not alleged in the information. Article 14(9) of the Revised Penal Code defines a recidivist as “one who, at the time of his trial for one crime shall have been previously convicted by final judgment of another crime embraced in the same title of this Code.”¹²

To prove recidivism, it is necessary to allege the same in the information and to attach thereto certified copies of the sentences rendered against the accused. Nonetheless, the trial court may still give such aggravating circumstance credence if the accused does not object to the presentation of evidence on the fact of recidivism”¹²

There is still recidivism regardless of lapse of time when the first offense was committed

In the case of People vs Colocar,¹³ the Court ruled that the appellant is still a recidivist even though he was convicted of his first offense, which is robbery, sixteen years ago, the Court opined that:

“It is true that if the accused had not been prosecuted for robbery within ten years from the date when the crime was committed, it would have prescribed, but he was prosecuted within that period and convicted, and we do not find anything in the law which authorizes us to disregard that fact. Until the Legislature provides otherwise, recidivism must be taken into account as an aggravating circumstance, no matter how many years have intervened.”¹⁴

Does pardon from previous offense bars the offender from being a recidivist?

In the case of People vs. Lacao,¹⁵ the Court affirmed the ruling of the trial court when it considered the accused as recidivist though the latter was granted pardon from the previous offense. The Court held that:

“The lower court properly considered recidivism since a pardon for a preceding offense does not obliterate the fact that the accused is a recidivist upon his conviction of a second offense embraced in the same title of the Code”¹⁶

Summary

Article 14 par 9 is one of the generic aggravating circumstances under Revised Penal Code. It is based on the greater perversity of the offender, as shown by his inclination to crimes. For it to be considered as aggravating circumstance, certain requisites must be present, one of it, among others is the both and second offense are embraced in the same title of the Code.

Thus, when the offender was convicted of murder and later on convicted by theft, he is not a recidivist as the two crimes are not under the same Title (murder is in Title Eight while theft is under Title Ten).

Conclusion

One of the augmenting factors in Article 14 Paragraph 9 of the Revised Criminal Code is that it increases the penalty for a crime to its maximum period, but it cannot elevate it to the next higher degree, when appreciated as a generic aggravating circumstance.

The culprit in this case is a recidivist. A recidivist is someone who has previously been convicted by final judgment of another offense covered by the same title of the Revised Penal Code at the time of his trial for another offense.

Like other aggravating circumstance, it shall also be alleged in the Criminal Information before the Court entertain such. It bears stressing also that one can still be considered as recidivist though he was pardoned from previous offense or there is a let say 10 years intervention between the first and second offense. Case laws provide that pardon and lapse of time do not bar the offender for being a recidivist.

1. Article 14, Paragraph 9, Revised Penal Code[↩]
2. Reyes, Revised Penal Code, 2021[↩]
3. Supra., Note 1[↩]
4. Id.[↩]
5. G.R. No. 65833, May 6, 1991[↩]
6. Ibid.[↩]
7. People vs. Lauleco C.A., 36 O.G. 956[↩]
8. People vs. Katigbak, G.R. No. 44527, March 31, 1936[↩]
9. G.R. No. L-58414, June 24, 1983[↩]
10. Ibid.[↩]
11. G.R. No. 134777-78, July 24, 2000[↩]
12. Ibid.[↩][↩]
13. G.R. No. 40871, November 10, 1934[↩]
14. Ibid.[↩]
15. G.R. No. 95320, September 4, 1991[↩]
16. Ibid.[↩]