Apelação Criminal Nº 0007554-43.2003.4.03.6181/sp

Penal. Apelação criminal. Estelionato. Preliminar de nulidade acolhida. Decisão exarada após esgotamento de jurisdição. De ofício. Prescrição da pretensão punitiva reconhecida em relação aos co-réus. Materialidade e autoria comprovadas. Condenação mantida em relação a um dos co-réus. Dosimetria da pena. Mantida. Apelação do réu improvida. 1. Preliminar de nulidade por esgotamento de jurisdição acolhida. O julgador monocrático, após já ter proferido sentença e esgotado sua jurisdição no caso em concreto, sem que houvesse erro material ou embargos de declaração, proferiu nova sentença extinguindo a punibilidade dos co-réus. 2. De ofício, nos termos do artigo 61 do Código de Processo Penal, verifica-se que transcorreu período superior a 4 (quatro) anos entre a data do recebimento da denúncia (17/11/2005) e a publicação da sentença condenatória (07/05/2008), portanto, ocorreu a prescrição da pretensão punitiva na espécie, razão pela qual é de rigor a extinção da punibilidade do réu Waldomiro Antônio Joaquim Pereira, nos termos do artigo 107, IV, c.c 115 do Código Penal. 3. Recurso em sentido estrito do Ministério Público Federal prejudicado. 4. Materialidade comprovada. Do ofício do INSS nº 21-201.2/EACCP/nº110/2003, encaminhado ao Ministério Público Federal para apuração de irregularidades na obtenção do benefício de aposentadoria, do Processo de Aposentadoria por Tempo de Serviço nº 42/113.694.204-9; e do Laudo de Exame Documentoscópico nº 2215/04-SR/SP que concluiu serem falsas as assinaturas de Rodolpho Seraphim Neto, sócio-gerente da empresa que sucedeu a “Indústria Reunidas Irmãos Spina S/A“, lançadas nos documentos que instruíram o mencionado Processo de Aposentadoria por Tempo de Serviço em favor de René Marques da Silva, extrai-se que foram apresentados documentos falsos com escopo de viabilizar a concessão do benefício previdenciário, fato que demonstra que foi utilizado de meios fraudulentos para manter o INSS em erro. 5. Autoria delitiva demonstrada. Eduardo Rocha atuava como intermediador de benefícios previdenciários e era o guardião informal do acervo de documentos da “Indústrias Reunidas Irmãos Spina S/A“, pois mantinha seu escritório no mesmo imóvel onde foram armazenados os papéis da empresa, após a venda da sua sede. Seu modus operandi, consistente na adulteração de fichas de Registro de Empregado da “Indústrias Reunidas Irmãos Spina S/A“, hoje “Cia Paulista de Matérias Primas“, restou devidamente comprovado. 6. Mantida a condenação de Eduardo Rocha como incurso no delito do artigo 171, §3º, do Código Penal, que dolosamente requereu e obteve, mediante fraude, benefício previdenciário indevido em favor de Antônio Fernandes Faria, mantendo em erro o Instituto Nacional de Previdência Social e causando-lhe prejuízo. 7. Dosimetria da pena de Eduardo Rocha. Mantida a pena imposta em 4 (quatro) anos de reclusão e 40 (quarenta) dias-multa, no valor unitário de mínimo legal de 1/30 (um trigésimo). Mantido, também, o regime inicial fechado de cumprimento da pena, nos termos do artigo 33, § 3º, do Código Penal, ficando, também, confirmada a decisão no tocante a não substituição da pena privativa de liberdade por restritivas de direitos e a impossibilidade de concessão da suspensão condicional da pena. 8. Preliminar de nulidade deduzida pela Procuradoria Regional da República acolhida. Recurso em sentido estrito do Ministério Público prejudicado. De ofício, extinta a punibilidade pela prescrição da pretensão punitiva do acusado Waldomiro Antônio Joaquim Pereira. Apelação do réu Eduardo Rocha a que se nega provimento.

Rel. Des. Vesna Kolmar

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