Fortuno vs. Directo of Prisons

G.R. No.
L-1782 February 2, 1948
FIDEL B. FORTUNO, Petitioner, vs. THE DIRECTOR OF PRISONS, Respondent.
Fidel B. Fortuno on his own behalf.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Ramon L. Avanceña for respondent.
PARAS, J.:
This is a petition for the writ of habeas corpus in which the petitioner, a prisoner whose aggregate
penalty is more than twenty years of imprisonment counted from October 8, 1941, seeks his
immediate release. chanroblesvirtualawlibrary chanrobles virtual law library
The first ground is that the recommitment order issued by the Board of Indeterminate Sentence on
October 4, 1941, directing the confinement of the petitioner for the unexpired portion of his
maximum sentence in case No. 9587 of the Court of First Instance of Rizal (2 years, 4 months and
22 days), was illegal and otherwise premature, because (1) petitioner's one-day trip to Santa Rosa,
Laguna, merely to get money from his relatives, did not constitute a violation of his parole that he
was to live in Manila and not to change his residence during the period of his parole without the prior
permission of the board, and (2) the mere filing against the petitioner of several complaints for
estafa, without final judgment of conviction, did not constitute a violation of another condition of his
parole that he was not to commit any crime and was to conduct himself in an orderly manner.
Petitioner's position is untenable. Without deciding whether or not his visit to Santa Rosa without first
securing the consent of the board was a violation of one of the conditions of his parole, it may safely
be held that he broke the other condition; namely, that he would not commit any crime, since the
petitioner was prosecuted for and finally convicted of the series of estafa committed by him during
the period of his parole. Petitioner's contention that the recommitment order was premature,
because it came down before his convictions, is now rather academic, even assuming that final
conviction is necessary in order to constitute a violation of the condition in dispute. chanroblesvirtualawlibrary chanrobles virtual law library
The second ground is that the additional penalty of 10 years of imprisonment imposed upon the
petitioner in CA - G.R. No. 79, was illegal and in excess of the jurisdiction of the court, because his
conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency
purposes, since said conviction is not for robbery, theft, estafa or falsification. In other words,
petitioner's contention is that his previous conviction for illegal possession of counterfeit bills was
wrongly included. Such mistake, even if true, cannot be corrected in a proceeding for habeas corpus,
for there is virtually no difference between the alleged error and that pointed out in Paguntalan vs.
Director of Prisons, 57 Phil., 140, wherein it was held that the error of counting as separate
convictions various convictions which should be counted as one due to the proximity of the
commission of the crimes, should "have been corrected by appeal, for it was rather an error of
judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding." chanrobles virtual law library
Petitioner also argues that the information in CA - G.R. No. 79 did not contain any allegation that he
was an habitual delinquent, though it was alleged therein that he was a recidivist. Apart from the
absence of proof on the point, and from the legal presumptions that the court acted lawfully in the
exercise of its jurisdiction and performed its duty regularly (section 69, pars. m and n, Rule 123), the
alleged defect may be likened to that referred to in Domingo y Reyes vs. Director or Prisons, 44 Off.
Gaz., 2201, wherein we said that "the allegation, if true, that the judgment of conviction was
rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide, is
merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the
judgment," and "cannot be reviewed in habeas corpus proceedings wherein the only issue is whether
or not the petitioner is entitled to release." chanrobles virtual law library
The third ground is that the petitioner is entitled to a special allowance of one-fifth of his aggregate
penalty on account of his failure to escape from his place of confinement during the war. Our ruling
on this feature of the case has to be adverse to the petitioner, inasmuch as we have already held
that "the special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code
refers to those convicts who, having evaded service of their sentence by leaving the penal institution,
give themselves up within two days," and not to those who have not escaped. (Artigas Losada vs.
Acenas, 44 Off. Gaz., 2694.) chanrobles virtual law library
It appearing that the petitioner has not yet served his total term of imprisonment, as the periods
sought by him to be deducted are not allowable, the petition will be, as the same is hereby, denied
without costs. So ordered. chanroblesvirtualawlibrary chanrobles virtual law library

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G.R. No.

L-1782 February 2, 1948

FIDEL B. FORTUNO, Petitioner, vs. THE DIRECTOR OF PRISONS, Respondent.

Fidel B. Fortuno on his own behalf.

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