Habeas Corpus Nº 98.526/rs

Habeas corpus. Processual penal militar. Penal militar. Crime de uso de documento falso (art. 315 do cpm). Incompetência da justiça militar. Inocorrência. Crime praticado por militar da reserva contra as instituições militares. Art. 9º, iii, a, do código penal militar. Inépcia da denúncia. Matéria suscitada, mas não examinada pelo tribunal a quo. Supressão de instância nesta suprema corte. Concessão da ordem de ofício. I - O paciente foi denunciado pela prática de delito do art. 315 do CPM, classificado como crime militar em sentido impróprio - aqueles que, embora previstos na legislação penal comum, também estão tipificados no Código Penal Militar por afetaram diretamente bens jurídicos das Forças Armadas (art. 9º, III, a, do Código Penal Militar). II - É competente, portanto, para processar e julgar o paciente a Justiça castrense, por força do art. 124 da Constituição Federal. III - Não é possível, na via do habeas corpus, fazer incursão sobre a correta tipificação dos fatos imputados ao paciente na ação penal objetivando desclassificar o crime de uso de documento falso (art. 315 do CPM) para o de estelionato (art. 171 do CP). IV - É pacífica, de resto, a jurisprudência desta Corte no sentido de não ser admissível a absorção do crime de uso de documento falso pelo de estelionato. V - A questão relativa à inépcia da denúncia foi devidamente suscitada nas instâncias antecedentes, entretanto não foi analisada pelo Tribunal a quo. VI - Tal circunstância impede que esta Suprema Corte aprecie a matéria, sob pena de indevida supressão de instância e de extravasamento dos limites de competência do STF descritos no art. 102 da Constituição Federal. VII - Habeas corpus parcialmente conhecido e, nessa parte, denegado. VIII - Ordem concedida de ofício para que o Superior Tribunal Militar examine a questão relativa à inépcia da denúncia.

Rel. Min. Ricardo Lewandowski

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