Acr – 2008.80.00.001603-6

Penal. Uso de documento falso. Apresentação de diploma de ensino médio e histórico Escolar falsos para a inscrição em conselho profissional. Subsunção da conduta do Agente à norma prevista no art. 304, do código penal. Impossibilidade de Desclassificação para o delito previsto no art. 297, do cp. Agente que usou o documento Falso sem contrafazê-lo. Pena reduzida na sentença abaixo do mínimo legal. Impossibilidade de maior redução da pena pela aplicação da atenuante genérica. Apelo Improvido. 1. Apelante condenado pelo crime de uso de documento falso (art. 304, do Código Penal) em face da apresentação, perante o Conselho Regional de Corretores de Imóveis - CRECI/AL, de cópias falsificadas do Diploma de Conclusão de Curso de 2º Grau e do Histórico Escolar para a sua inscrição definitiva como Corretor de Imóveis. 2. A absorção do crime de crime de uso de documento falso (art. 304, do CP) pelo crime de falsificação de documento público (art. 297, do CP), por ser aquele mero exaurimento deste, ocorre apenas quando a utilização do documento falsificado é feita pelo próprio falsificador. 3. Alegação de que a conduta se subsumiria ao tipo previsto no art. 297, do CP, porque o ele encomendara e pagara pela falsificação. A execução material da falsificação fora inteiramente pela diretora do colégio que emitiu a documentação, não tendo o Apelante realizado os núcleos típicos do art. 297, do CP, consistente em alterar ou falsificar os documentos. 4. Apelante condenado à pena de 01 (um) ano e 08 (oito) meses de reclusão, tendo a sentença reduzido a pena privativa de liberdade abaixo do mínimo legal de 02 (dois) anos prevista no art. 304, do CP, em face da incidência da atenuante genérica da confissão espontânea (art. 65, III, “d“, do CP), devendo tal redução ser mantida em face da ausência de recurso ministerial e da impossibilidade de “reformatio in pejus. 5. Impossibilidade de aplicação da atenuante genérica prevista no art. 65, III, “a“, do CP, porque não há relevante valor moral ou social na conduta do agente de apresentar documento falso a órgão de classe para inscrição indevida para o exercício da profissão e em face do disposto na Súmula nº 231 do Col. Superior Tribunal de Justiça: “a incidência da circunstância atenuante não pode conduzir à redução da pena abaixo do mínimo legal“. 6. Apelação improvida.

Rel. Des. Geraldo Apoliano

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