Apelação Criminal N. 0004416-10.2005.4.01.3900/pa

Penal. Processual penal. Crimes contra o meio ambiente. Arts. 55 e 46 da lei 9.605/98. Crime de usurpação do patrimônio público. Art. 2º da lei 8.176/91. Exploração de matérias-primas pertencentes à união. Ausência de autorização legal. Conflito aparente de normas. Inexistência. Prescrição do crime ambiental. Materialidade e autoria comprovadas. 1. A prática de transportar recursos minerais da reserva indígena dos índios TEMBÉS, sem autorização para transporte de produtos florestais - ATPF, configura o crime do art. 46, parágrafo único, da Lei 9.605/98 e, também, o do art. 2º da Lei 8.176/91 (explorar matéria-prima pertencente à União Federal de forma irregular), haja vista que, no caso, a matéria-prima pertence à União, o que afasta o tipo do art. 55 da Lei 9.605/98. 2. Há concurso formal de delitos, e não conflito aparente de normas entre os crimes previstos no art. 2º da Lei 8.176/91 (explorar matéria-prima pertencente à União Federal sem autorização legal ou em desacordo com as obrigações impostas pelo título autorizador) e art. 55 da Lei 9.605 (lavra clandestina de minério), consoante entendimento do Supremo Tribunal Federal (HC 89878/SP). 3. De acordo com os arts. 109 e 110, §1º, do Código Penal, a prescrição, depois da sentença condenatória com trânsito em julgado para a acusação ou depois de improvido seu recurso, regula-se pela pena aplicada, verificando-se em 02 (dois) anos se o máximo da pena é inferior a 01 (um) ano. Tendo sido ultrapassado o prazo prescricional previsto para a pena aplicada, para o crime do art. 46, parágrafo único, da Lei nº 9.605/98, ocorreu a prescrição retroativa da pretensão punitiva. 4. Materialidade e autoria do crime de usurpação de matéria-prima da União sem autorização legal (art. 2º da Lei nº 8.176/91) devidamente comprovadas nos autos pelos documentos acostados e declarações testemunhais.

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