Condenações Diversas Podem Ser Consideradas Reincidência E Antecedentes

Para cálculo da pena por novo crime, condenações anteriores diversas podem ser consideradas como reincidência ou maus antecedentes. Neste caso, mesmo as que transitaram em julgado há mais de cinco anos podem ser avaliadas. A decisão é da Quinta Turma do Superior Tribunal de Justiça (STJ).

No caso analisado, o réu foi condenado inicialmente a dois anos, dez meses e 16 dias de reclusão, mais multa, por furto qualificado. Em apelação, o Tribunal de Justiça de São Paulo (TJSP) reduziu a pena em seis meses. O Ministério Público (MPSP) recorreu da decisão ao STJ, e foi atendido.

O juiz havia considerado quatro condenações prévias para o cálculo da pena. Duas haviam transitado em julgado em 1987 e 1989. Como o delito julgado foi praticado em 2000, elas não poderiam ser consideradas para fins de reincidência. Outras duas condenações, porém, foram utilizadas para o acréscimo de pena relativo à reincidência.

Reinserção

Para o ministro Jorge Mussi, o TJSP não poderia rejeitar a aplicação da agravante de reincidência sem negar vigência ao Código Penal e sem ofender os princípios constitucionais da isonomia e da individualização da sanção.

“Não se olvida que, com a reforma do Código Penal, a partir de 1984, a pena deixou de ter caráter unicamente punitivo, passando a ter como objetivos a reeducação do apenado e sua reinserção ao meio social, o que não significa dizer que a agravante prevista no inciso I do artigo 61 do Código Penal, não deveria ser aplicada”, concluiu o relator.

A decisão do STJ restabelece a condenação conforme aplicada pelo juiz de primeiro grau.

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