Apelação Criminal Nº 0000747-87.2003.4.03.6122/sp

Apelação criminal. Crime contra a ordem econômica. Adulteração de combustível. Artigo 1º, i da lei 8.176/91. Incompetência da justiça federal. Preliminar acolhida. 1. Aresto anterior proferido em sede de recurso em sentido estrito que entendeu ser o feito da competência da Justiça Federal. 2. O entendimento jurisprudencial acerca da matéria posta nestes autos firmou-se no sentido de definir a competência da Justiça Estadual para processar e julgar o crime descrito no artigo 1º, da lei nº 8.176/91, tendo em vista a inexistência de ofensa a bem, serviço ou interesse da União ou da Agência Nacional do Petróleo, conferindo-se aplicabilidade à Súmula 498 do Supremo Tribunal Federal, que dispõe: “Compete à Justiça dos Estados, em ambas as instâncias, o processo e julgamento dos crimes contra a economia popular“. 3. No caso, a ausência de lesão a bens, serviços ou interesses da União afasta a competência da Justiça Federal, e o só fato de a produção, a distribuição e a comercialização de combustíveis se encontrarem sujeitas à fiscalização federal não atrai a competência federal para o processamento e julgamento do feito. 4. Tratando-se de matéria de ordem pública, o julgado anterior não vincula o processo, de forma que a preliminar de incompetência da Justiça Federal para processar e julgar os crimes previstos na Lei nº 8.176/91 deve ser acolhida. 5. Preliminar invocada pela defesa que se acolhe para declarar a nulidade ab initio do processo e declinar da competência à Justiça Estadual.

Rel. Des. José Lunardelli

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