Apelação Criminal 0003195-06.2011.4.01.3601/mt

Penal. Processo penal. Tráfico internacional de entorpecentes. Art. 33 c/c 40, i da lei 11.343/2006. Sentença condenatória. Art. 44 do cp. Substituição da pena privativa de liberdade por restritivas de direitos. Ré estrangeira faz jus ao benefício. Dosimetria reformada. Regime de cumprimento de Pena modificado. Art. 33,§ 2º, ''c'', do cp. Justiça gratuita deferida. Apelo Parcialmente provido. I - Autoria e materialidade do crime de tráfico internacional de entorpecentes devidamente comprovado em todos os seus elementos, conforme tipificação prevista no art. 33 c/c art. 40, I da Lei 11.343/2006. II - O quantum das penas deve ser reduzido para refletir a justa medida da reprovabilidade da conduta da acusada, bem como alterado o regime inicial de cumprimento de pena, conforme preconizado nos arts. 59, 68 e 33, § 2º, alínea ''c'', todos do CP. Primeiro, inaplicável in casu a a majorante prevista no inciso III, do art. 40, da Lei 11.343/2006, pois tal hipótese de aumento só incide quando tiver havido a comercialização da droga dentro de “transporte público“. III - Tendo a ré sido condenada à pena total de 1 (um) ano, 11 (onze) meses e 10 (dez) dias de reclusão e preenchendo os requisitos necessários, cabível a substituição da pena privativa de liberdade por duas restritivas de direito, com espeque nos incisos I, II e III, do art. 44 do CP. A questão já foi decidida pelo Tribunal Pleno do Supremo Tribunal Federal no HC nº 97.256/RS, julgado em 1º/09/2010, que afastou, por inconstitucionalidade, a parte do § 4º do art. 33 da Lei 11.343/2006 que vedava a conversão em penas restritivas de direitos. IV - Não há impedimento legal para que o benefício da substituição da pena privativa de liberdade por restritiva de direitos seja aplicado à ré estrangeira, tendo em vista que a Constituição da República em seu art. 5º, caput, assegurou aos estrangeiros isonomia de direitos em relação aos brasileiros. (Conf. 2ª Seção desta Corte, EIAp 0001972-18.2011.4.01.3601/MT). V - Declarando a ré ser pobre, tem direito à justiça gratuita, nos termos da Lei 1060/1950. VI - Apelação da ré provida.

Rel. Des. Cândido Ribeiro

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