Apelação Criminal Nº 0004083-80.2005.404.7002/pr

Penal e processo penal. Apelação. Constituição definitiva do crédito tributário. Desnecessidade. Crime formal. Maus antecedentes. Reconhecimento. Aumento da pena-base. Consequências do crime com base no valor dos tributos iludidos. Desconsideração da valoração negativa na pena-base. Recurso de questão objetiva aproveita a todos os recorrentes. Fato delituoso anterior à lei nº 12.234/10. Inexistência de prescrição. 1. O delito de descaminho previsto no artigo 334 do Código Penal se perfectibiliza com a simples entrada da mercadoria em território nacional sem o pagamento dos impostos devidos, sendo, portanto, crime formal e não exigindo a constituição definitiva do débito para caracterização do tipo penal ou como condição de sua tipicidade. 2. Se o trânsito em julgado da condenação ocorre posteriormente à data do fato delituoso narrado na denúncia, tal falto deve ser valorado como maus antecedentes. 3. Mesmo que o valor dos tributos iludidos seja expressivo (R$ 83.761,00), as conseqüências do crime, enquanto circunstância do art.59 do CP, não devem ser valoradas negativamente, se não for superada a quantia de R$ 100.00,00 em prejuízos, conforme entendimento desta Corte. 4. Se o recurso versa sobre circunstância objetiva do processo, o efeito do seu julgado se estende a todos os recorrentes e aproveita até mesmo àqueles que não a suscitaram. 5. Se a data do fato delituoso for anterior à lei nº 12.234/10, a prescrição pode ter como termo inicial data anterior à do recebimento da denúncia.

Rel. Des. Álvaro Eduardo Junqueira

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