Habeas Corpus Nº 104.592/rs

Habeas corpus. Trafico ilicito de entorpecentes. Substituicao da pena privativa de liberdade por restritiva de Direitos. Julgamento da questao pelo plenario. Ordem Parcialmente concedida. 1. A questao de direito tratada neste writ diz respeito a possibilidade de conversao da pena privativa de liberdade por restritiva de direitos nas hipoteses relacionadas aos crimes de trafico ilicito de substancias entorpecentes previstos na Lei 11.343/2006. 2. Em 1o de setembro de 2010, o Plenario desta Suprema Corte, ao julgar o HC 97.256/RS, rel. Min. Ayres Britto, declarou, por maioria, a inconstitucionalidade incidental da parte final do art. 44 da Lei 11.343/2006, bem como da expressao “vedada a conversão em penas restritivas de direitos”, prevista no § 4o do art. 33 do mesmo diploma legal. 3. O mencionado obice legal, que impedia a substituicao da pena privativa de liberdade por restritiva de direitos nos crimes de trafico de entorpecentes, foi removido para determinar que o Juizo de origem competente proceda, no caso concreto, a avaliacao das condicoes objetivas e subjetivas do art. 44 do Codigo Penal. 4. Por ocasiao do julgamento, posicionei-me contrariamente a tese vencedora. 5. Entretanto, nao tendo prevalecido meu posicionamento, curvo-me ao entendimento da maioria, que, ao julgar o HC 97.256/RS, de substituicao da pena privativa de liberdade por restritiva de direitos nos crimes de traficos de entorpecentes (§ 4o do art. 33 e parte final do art. 44, ambos da Lei 11.343/06). 6. Ordem parcialmente concedida para, removendo o obice previsto no § 4o do art. 33 e na parte final do art. 44, ambos da Lei 11.343/06, determinar que o Juizo de origem competente aprecie a substituicao da pena privativa de liberdade por restritiva de direitos, nos termos do art. 44 do Codigo Penal.

Rel. Min. Ellen Gracie

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