Apelação Criminal Nº 2000.72.01.002867-0/sc

Penal. Crimes de responsabilidade de prefeitos. Artigo 1º, inciso i, do decreto-lei 201/67. Desvio de verbas recebidas do ministério da saúde. Materialidade, autoria e dolo comprovados. Pena-base. Culpabilidade. Motivos do crime. Circunstâncias neutras. Confissão. Reincidência. Compensação. Prescrição pela pena em concreto. Extinção da punibilidade. 1. Na segunda figura típica do artigo 1º, I, do Decreto-Lei 201/67 (desvio de bens ou rendas públicas), o Prefeito dá a coisa pública fim diverso ao que a mesma se destinava, com a finalidade de obter, para si ou para terceiro, vantagem indevida. 2. Comprovados a materialidade, a autoria e o dolo, é de ser mantida a condenação dos acusados, por terem desviado verba federal concedida através de convênio com o Ministério da Saúde. 3. Mantida a absolvição de um dos corréus, com fulcro no artigo 386, V, do Código de Processo Penal, uma vez que não restou comprovada a sua participação na prática delitiva. 4. O fato de o réu exercer o cargo de prefeito não autoriza a negativação do vetor da culpabilidade, por ser inerente ao próprio tipo penal. 5. O conhecimento da ilicitude por parte do autor do delito não autoriza a exasperação da reprimenda a ele imposta, pois, antes, é requisito para a sua punibilidade. 6. Mantida neutra a circunstância judicial dos motivos do crime, porquanto não há elementos nos autos que justifiquem o seu desvalor. 7. Consoante recente precedente do Superior Tribunal de Justiça (EREsp 1.154.752, 3ª Seção, Rel. Ministro Sebastião Reis Júnior, julgado em 23-5-2012), devem ser compensadas as circunstâncias agravante e atenuante da pena, referentes à reincidência e à confissão. 8. Não sendo o caso de reincidência específica, não se apresenta o óbice objetivo disposto no artigo 44, §3º, parte final, do Estatuto Repressivo. 9. Transcorridos, entre os fatos delitivos e o recebimento da denúncia, os prazos prescricionais correspondentes às penas privativas de liberdade concretizadas, resta extinta a punibilidade dos réus.

Rel. Des. Victor Luiz Dos Santos Laus

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