Código de Processo Penal Comentado | Flavio Meirelles Medeiros

Article 383 CPP – Amendment of the bill.

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Art. 383. The judge, without modifying the description of the fact contained in the denunciation or complaint, may assign a different legal definition to it, even if, as a result, he has to apply a more severe penalty. (Wording provided by Law No. 11,719 of 2008). 
§ 1 If  , as a result of a different legal definition, there is the possibility of proposing a conditional suspension of the process, the judge will proceed in accordance with the provisions of the law. (Included by Law No. 11,719 of 2008). 
§ 2 In the  case of an infraction within the competence of another court, the records shall be forwarded to that court. (Included by Law No. 11,719 of 2008).

Principle of correlation between the complaint and the sentence

Conviction by another device based on facts described in the complaint:  The magistrate, without modifying the description of the fact contained in the complaint, may condemn the accused by another criminal device other than the one imputed to the accused in the initial accusatory piece, even if he has to apply a penalty more serious. It is that the accused, in criminal proceedings, defends himself against facts and not devices. The rules are  jura novit curia  (the judge takes care of the law) and  narra mihi factum dabo tibi jus  (tell me the facts and I will give you the law). In the case, the mendatio libelli is verified  ,  which is a correction of the accusation, and not an alteration  (mutatio libelli ) . Thus, for example: the complaint describes the subtraction of someone else’s movable property through  violence  against the person and the crime committed is described in  article 155 of the CP  (theft); the judge may, at the time of the sentence, convict for the crime of theft, since the crime described was that of  article 157 of the CP , since violence to the person is present.

Conviction for facts not described in the complaint:  On the other hand, there can be no conviction based on facts that are not described in the complaint. It’s called  the correlation principle . There must be correlation (correspondence) between the facts narrated in the complaint and those taken as true in the sentence. Violation of this principle implies nullity of the judgment, as it is an  ultra petita decision  (decision beyond the request). When the judge passes sentence and verifies that there is the possibility of giving a new legal definition to the fact, as a result of existing evidence in the file not contained in the indictment, he must determine the steps provided for in article 384  , with addition of the complaint and reopening of the postulatory and instructive phases. By doing so, there will be no nullity.

New terminology for the same meaning:  Principle of correlation  is a new term to designate an old rule, that the sentence cannot be  ultra  or  extra petita, that is to say, it cannot go beyond the order or transit outside the order. Lately, it has become a habit in the doctrine to give new names to known concepts, theories, institutes and definitions. Fad without any use. On the contrary, the more names given to the same institute, rule or principle, the more complicated the legal study becomes. This goes without saying that any invention is justification for naming a “new theory”, “thesis” or “concept”. The impression one has is that these creations are made to answer questions for contests. Perhaps this is the same reason for the excessive importance given to jurisprudence in doctrinal works. An importance she doesn’t have. Doctrine ceases to be doctrine if it seeks answers to the problems of law with prevalence in jurisprudence. It becomes a repository of judicial decisions. Jurisprudence is not law, but a subsidiary source of law. Anyone who confuses jurisprudence with law, be prepared to review all your material every two years, because as the composition of the courts changes, so do the decisions.

Jurisprudence

The second instance may apply a major or minor penalty as long as they are described in the initial:  The Court of Second Instance may apply a major or minor, even when not stated in the complaint, provided that the circumstances that give rise to its incidence are described in the initial piece ( HC 120.587/SP  and RHC 119.962/SP,  rel. Min. Luiz Fux, judged on 5/20/2014, judgments published, respectively, in the DJE of 6/5/2014  and in the DJE of 6/16/2014 – Newsletter 747, First Panel) .

Description of the facts narrated in the complaint. The judge can change the legal definition of the facts in the sentence:  Provided that the description of the facts narrated in the complaint is sufficient for the regularity of the exercise of the ample defense, the judge can change, at the time of the conviction, the legal definition of the facts, even if this entails the application of a more severe penalty ( HC 123.733/AL, rel. Min. Gilmar Mendes, judged on 9/16/2014, judgment published in the DJE of 10/6/2014  – Newsletter 759, Second Panel).  

Absence in the complaint of capitulation due to increased penalty and non-violation of the principle of congruence:  The absence of mention in the accusatory document of the legal capitulation of the cause of increased penalty provided for in art. 12 of Law 8.137/1990 later recognized in a conviction ( HC 129.284, rel. min. Ricardo Lewandowski, DJE of 7-2-2018 ).

Principle of congruence:  It must be recognized the absolute nullity of the sentence that, in disagreement with the limits drawn by the indictment, condemns the defendant for facts not narrated in the complaint ( AP 975, rel. min. Edson Fachin, DJE of 2-3 -2018 ).

Moment of alteration and view to defense

Time to make the amendment and view the defense:  In view of the position of article 383, in Book I, Chapter XII, which deals with the judgment, it may seem that the  amendment can only be made when the magistrate is making the sentence. But it’s not like that. As soon as the magistrate realizes the mistake in the complaint, even at the beginning of the process, when it is received, he must launch an order in the records, which will have the purpose of alerting both parties of their initial conviction as to the correct capitulation of the criminal type in the complaint. The MP, if he so wishes, may rectify the complaint. If not, no action is required. The important thing, the fundamental thing is that somehow the defense has knowledge of the judge’s conviction that the criminal type capitulated in the complaint is not what is actually being imputed to the accused. The importance of this knowledge on the part of the defense is that it will be able to make technical-legal considerations regarding the criminal type suggested by the magistrate. Not that it is prevented from making them only with the description of the facts and abstracting the mistaken capitulation in the complaint, but it is essential to be certain about the entire content and scope of the accusation, with a view to carrying out a broad and efficient defense. And in the event that the records are already concluded with the judge for sentencing? In this case, it seems to us, the defense should be given a view of the case file, and containing an order referring to the possibility of changing the penal provision, so that, if it so wishes, it can present defensive considerations. It remains to be clarified that the case law is peaceful in the sense that there is no nullity if the defense is not heard. with a view to carrying out a broad and efficient defense. And in the event that the records are already concluded with the judge for sentencing? In this case, it seems to us, the defense should be given a view of the case file, and containing an order referring to the possibility of changing the penal provision, so that, if it so wishes, it can present defensive considerations. It remains to be clarified that the case law is peaceful in the sense that there is no nullity if the defense is not heard. with a view to carrying out a broad and efficient defense. And in the event that the records are already concluded with the judge for sentencing? In this case, it seems to us, the defense should be given a view of the case file, and containing an order referring to the possibility of changing the penal provision, so that, if it so wishes, it can present defensive considerations. It remains to be clarified that the case law is peaceful in the sense that there is no nullity if the defense is not heard.

The court may apply article 383:  The CPP, in its  article 617 , is expressly provided that the court, chamber or panel will comply in its decisions with the provisions of articles 383,  386 and 387 , as applicable, not being able, however, to , to be aggravated the sentence, when only the defendant has appealed the sentence.

Doctrine

Gustavo Badaró:  Correlation between accusation and sentence: rereading of the mendatio libelli in the light of the contradictory on questions of law, in the new Code of Civil Procedure . Badaro Lawyers.

Franklyn Roger Alves Silva:  The principle of correlation in criminal proceedings in the light of law n. 11,719/08 .  scholar.google.com.br

Jurisprudence

Amendment to libelli before the sentence:  The judge may, even before the sentence, proceed with the typical correct adaptation of the facts narrated in the complaint to enable, from the outset, the recognition of the defendant’s rights characterized as issues of public order resulting from the reclassification of the crime ( STJ , HC 241.206-SP, Reporting Justice Nefi Cordeiro, judged on 11/11/2014, DJe 12/11/2014 – Newsletter 553 ). 

Amendment to libelli before the sentence:  The judge may, even before the sentence, proceed with the typical correct adaptation of the facts narrated in the complaint to enable, from the outset, the recognition of the defendant’s rights characterized as issues of public order resulting from the reclassification of the crime ( STJ , HC 241.206-SP, Reporting Justice Nefi Cordeiro, judged on 11/11/2014, DJe 12/11/2014 – Newsletter 553 ). 

Incorrect factual-legal framework. Possibility of disqualifying the type at any time:  If there is an incorrect factual-legal framework in the criminal capitulation – which affects the competence of the court -, the magistrate must be given the possibility of disqualifying the type at any time during the judicial phase of the criminal prosecution and forward to the competent body ( HC 113.598, rel. Min. Gilmar Mendes, judgment on 12-15-2015, decision pending publication  – Newsletter 812, Second Panel).  

Upon receipt of the complaint, it is not up to the judge to confer a legal definition to the facts:  “It is not lawful for the Judge, upon receipt of the complaint, when he is only judging the admissibility of the accusation, to confer a legal definition to the facts narrated in the indictment” ( Inq 4.146, rel. Min. Teori Zavascki, judgment on 6/22/2016, DJE of 10/5/2016  – Newsletter 831, Plenary).  

Conditional suspension of proceedings and criminal transaction

Conditional suspension of proceedings:  If, as a result of a different legal definition, it is possible to propose a conditional suspension of proceedings, the judge will proceed in accordance with the provisions of the law. As provided in  article 89 of Law no. 9,099/95 , in crimes where the minimum sentence imposed is equal to or less than one year, covered or not by this law, the Public Prosecutor’s Office, when filing the complaint, may propose the suspension of the process, for two to four years, provided that the accused is not being prosecuted or has not been convicted of another crime, the other requirements that would authorize the conditional suspension of the sentence are present. By the way, the STJ edited  Precedent 337, which says: “The conditional suspension of the process is appropriate in the disqualification of the crime and in the partial validity of the punitive claim” On the subject, there is also the  Precedent 696 of the STF :  “Gathering the permissive legal assumptions of the conditional suspension of the process, but if the Public Prosecutor refuses to propose it, the Judge, dissenting, will refer the matter to the Attorney General, applying Article 28 of the CPP is applied by analogy  ”  (see  jurisprudence subsequent to the publication of the Precedent ). Even if the process is already at the end and concluded for sentencing, there is no impediment to its being suspended, as the suspension is the right of the accused, with a view to avoiding possible and future criminal conviction.

Criminal transaction:  Law n. 9,099/95  (Law Special Courts) authorizes the transaction. This law is applicable to infractions of lesser offensive potential, namely, criminal misdemeanors and crimes to which the law imposes a maximum penalty of not more than two years, combined or not with a fine (article 61 of the aforementioned law ). If, by application of article 383 of the CPP, the criminal type that the magistrate deems applicable has a sentence of no more than two years, he must give the Public Prosecutor’s Office a chance to propose a criminal transaction. Although such a possibility is not suggested in article 383 of the CPP, the criminal transaction in crimes of lesser offensive potential constitutes the right of the accused.

Jurisprudence

Conditional suspension of the process. Revocation after the probationary period:  It is possible to repeal the benefit of the conditional suspension of proceedings after the end of the probationary period, provided that the facts leading to the revocation occurred during this period ( HC 208.497-RS, Reporting Min. Assusete Magalhães , judged on 12/11/2012 – Newsletter No. 0513 ). 

Procedural sursis. Imposition of conditions not expressly provided for in art. 89 of Law n. 9,099/1995:  It is appropriate to impose the provision of services to the community or pecuniary provision as a special condition for granting the benefit of the conditional suspension of the process, provided that the principles of adequacy and proportionality are observed ( RHC 31,283-ES, Rapporteur Justice Laurita Vaz, judged on 12/11/2012 – Newsletter No. 0512 ).

Conditional suspension of the process. Provision of the benefit to the accused by the competent court in a public criminal action:  The competent court must, in the context of a public criminal action, offer the benefit of the conditional suspension of the proceedings to the accused if it finds, upon provocation by the interested party, not only the insubsistence of the grounds used by the Public Ministry to deny the benefit, but the fulfillment of the special requirements provided for in art. 89 of Law no. 9,099/1995 ( HC 131,108-RJ, Reporting Judge Jorge Mussi, judged on 12/18/2012 – Newsletter No. 0513 ). 

 If the clauses of the criminal transaction provided for in article 761 of Law 9099/1995 are not complied with, even if ratified, the previous situation is resumed: clauses, the previous situation is resumed, allowing the Public Ministry to continue the criminal prosecution by offering a complaint or requesting a police inquiry ( PSV 68/DF, judged on 10/16/2014, published in the DJE of 11/4/2014 -2014  – Newsletter 763, Plenary). 

Repetitive. With regard to the legality of the conditions for suspending the proceedings of the Special Courts: Theme 930. There is no obstacle to establishing, in the prudent use of the judicial power provided for in art. 89, § 2, of Law no. 9,099/1995, obligations equivalent, from a practical point of view, to criminal sanctions (such as the provision of community services or pecuniary provision), but which, for the purposes of procedural probation, are only presented as conditions for its incidence ( …) And, being an agreement, the parties are free to compromise around the legal (§ 1) or judicial (§ 2) conditions provided for in art. 89, “provided that they are appropriate to the fact and the personal situation of the accused”, and provided that conditions are not imposed that could offend the dignity of the defendant(…) These characteristics of procedural probation, therefore, rule out the illegality of establishing functionally equivalent conditions to criminal sanctions, but which are presented merely as conditions for the suspension of the process, and as such they will be treated (…) Precedent cited from the STJ: REsp 1.472.428-RS, Fifth Panel, DJe 12/11/2014; AgRg in REsp 1.376.161-RS, Fifth Panel, DJe 8/1/2014; HC 325.184-MG, Sixth Panel, DJe 9/23/2015; and RHC 60.729-RS, Sixth Panel, DJe 9/11/2015. Cited precedents of the STF: HC 123.324-PR, First Panel, DJe 7/11/2014; HC 108.103-RS, Second Panel, DJe 6/12/2011; and HC 115.721-PR, Second Panel, DJe 6/28/2013 ( DJe 7/11/2014; HC 108.103-RS, Second Panel, DJe 6/12/2011; and HC 115.721-PR, Second Panel, DJe 6/28/2013 ( DJe 7/11/2014; HC 108.103-RS, Second Panel, DJe 6/12/2011; and HC 115.721-PR, Second Panel, DJe 6/28/2013 (REsp 1,498,034-RS, Rel. Min. Rogerio Schietti Cruz, Third Section, judged on 11/25/2015, DJe 12/2/2015 – Newsletter n. 574 ).

Analysis of habeas corpus despite the granting of probation:  The eventual acceptance of a proposal for conditional suspension of the process does not affect the analysis of habeas corpus in which the suspension of the criminal action is pleaded ( STJ, RHC 41.527-RJ, Rel. Min. Jorge Mussi, judged on 3/3/2015, DJe 3/11/2015 – Newsletter 557 ).

Repetitive. Special Court. Failure to comply with the conditions for suspending the process results in revocation of the benefit, even if the probationary period has passed:  Topic 920. If the conditions imposed during the probationary period for the conditional suspension of the process are not complied with, the benefit may be revoked, even if it has already been exceeded the legal period, provided that it refers to an event that occurred during its term ( REsp 1.498.034-RS, Reporting Min. Rogerio Schietti Cruz, Third Section, judged on 11/25/2015, DJe 12/2/2015 ). 

the incompetence

Incompetence of the judge:  The magistrate, if convinced of the feasibility of giving a new legal description to the fact, and this implies a change in competence, will send the case to the competent judge. Being relative to incompetence, in homage to the principles of physical identity and celerity (see the title  The judge who collects the evidence is the one who sentences  in notes to article 399), there is an extension of competence, that is, it is not declined and the judge himself sentences. If the incompetence is absolute, the records must be forwarded to the competent magistrate.

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