Acr – 11015/pb – 0003147-41.2010.4.05.8202

Penal e processual penal. Apelação do Ministério Público Federal, desafiando a sentença que absolveu o réu da incursão no tipo previsto no artigo 1º, inciso III, do Decreto-Lei 201/67. O delito esquadrinhado põe na cadeira de infrator o Prefeito que desvia, ou aplica indevidamente, rendas ou verbas públicas. Trata-se de ilícito que, ao contrário do previsto no artigo 1º, inciso I, deste mesmo diploma legal, consuma-se quando verificada destinação dos valores para outras finalidades públicas, mesmo que não haja prejuízo patrimonial aos cofres da municipalidade. Precedente (RSE 1010, des. Margarida Cantarelli julgado em 11 de setembro de 2007). No caso vertente, é fato incontroverso que parte dos valores recebidos pelo Município de Nazarezinho, através do convênio 190/2008, concertado com o Ministério do Desenvolvimento Social e Combate à Fome, foi aplicado em finalidade pública diversa, já que não foi utilizado para a implantação de feira popular na cidade, mas, sim, para a compra de terreno, destinado à construção de trinta casas populares, não tendo a referida norma municipal força para se imiscuir no destino de recursos oriundos de convênio, já com roteiro preestabelecido. Decerto, o próprio réu confessou haver utilizado parte da verba para a compra da terra em questão, não obstante, argumentando que estava autorizado pela Lei Municipal 443/2008. Há, inclusive, vasta prova documental atestando esta negociação, bem como a efetivação da obra (f. 75-84). Consequentemente, concluída a instrução processual, restou inequívoco que, dos cento e cinco mil, setecentos e quarenta e dois reais e vinte centavos recebidos pela Urbe, o montante de cinquenta e cinco mil foi empregado em outro destino, conquanto igualmente público e relevante, o que, contudo, não afasta a consumação do ilícito. Apelação provida, para condenar o réu à pena de três meses de detenção, substituída por duas sanções restritivas de direitos, cumulada com a obrigação de pagar quantia correspondente a dez dias-multa, no valor unitário de um salário mínimo vigente à época dos fatos, com correção monetária, na forma legal. Por derradeiro, reconhecida, de ofício, a extinção da punibilidade, por força da prescrição intercorrente.

Relator : Desembargador Federal Vladimir Souza Carvalho

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