Acr – 10503/ce – 0002186-81.2011.4.05.8100

Penal e processual penal. Crime contra o sistema financeiro nacional (lei nº 7.492/86, Art. 20). Reconhecimento da prescrição retroativa em prol de ambos os acusados. Provimento do apelo do réu que se insurgiu contra a sentença, sustentando, entre Outros temas, a prescrição ora reconhecida. Reconhecimento ex officio quanto ao Outro réu, prejudicando o conhecimento do seu recurso (súmula nº 241 do ex-tfr). 1. Narram os autos que o réu PAULO SANFORD VIEIRA LIMA teria obtido financiamento junto ao Fundo de Investimento do Nordeste - FINOR - mediante a utilização de notas fiscais supostamente fraudulentas, emitidas pelo segundo réu, FERNANDO MACIEL MEDEIROS JUNIOR. Ambos, então, foram condenados às penas do Art. 20 da Lei nº 7.492/86; 2. Não havendo recurso de apelação do MPF (tendo, portanto, transitado em julgado a sentença para a acusação), calcula-se o prazo prescricional pela pena in concreto, que, na hipótese, foi de 04 (quatro) anos de reclusão para o réu PAULO SANFORD VIEIRA LIMA; e de 02 (dois) anos e 06 (seis) meses de reclusão para o réu FERNANDO MACIEL MEDEIROS JUNIOR; 3. Passados, então, mais de 10 (dez) anos entre a data dos últimos atos criminosos narrados na denúncia (31/12/2000, cf. fl. 07) e a data do seu recebimento (28.02.2011, cf. fls. 278/279), constata-se lapso temporal suficiente para que seja reconhecida a prescrição retroativa pela pena aplicada, gerando a extinção da punibilidade, a teor do que dispõe o Art. 109, IV, do CP, o qual prevê o prazo de 08 (oito) anos para prescrição da pena superior a 02 (dois) ano e não excedente a 04 (quatro), comunicada para a pena de multa que tenha sido cominada (CP, Art. 114, II) --- com o que, aliás, concordou o MPF ao contrarrazoar os apelos e as emitir pronunciamento já perante este TRF5; 4. É importante salientar que as alterações formuladas pela Lei nº 12.234/2010 ao CP, Art. 110, §§ 1º e 2º --- impedindo o cômputo da prescrição retroativa a partir de termo anterior ao momento do recebimento da denúncia ---, não se aplicam à hipótese, vez que os autos tratam de fatos anteriores ao advento da mencionada modificação legislativa, e a Lei Penal somente retroagirá em benefício do réu (CF, Art. 5º, XL); 5. O apelo de FERNANDO MACIEL MEDEIROS JÚNIOR deve ser provido, vez que aborda o assunto prescrição; relativamente a PAULO SANFORD VIEIRA LIMA, a prescrição deve ser reconhecida ex officio, prejudicando o conhecimento de sua apelação (Súmula nº 241 do ex-TFR).

Relator: Desembargador Federal Paulo Roberto De Oliveira Lima

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