Acórdão nº 242/13.9PBBRR.L2-5 de Tribunal da Relação de Lisboa, 16 de Novembro de 2016
Magistrado Responsável: | VIEIRA LAMIM |
Data da Resolução: | 16 de Novembro de 2016 |
Emissor: | Tribunal da Relação de Lisboa |
Decisão Texto Parcial:
Acordam, em conferência, no Tribunal da Relação de Lisboa.
Relatório: Iº-1.Nos autos de Processo Comum (Tribunal Singular) nº242/13.9PBBRR, da Comarca de Lisboa, Barreiro - Inst. Local - Secção Criminal - J2, por acórdão deste Tribunal da Relação de 8 de Abril de 2015, o arguido M., foi condenado por crime de tráfico de menor gravidade, p.p., pelo art.25, al.a, do Dec. Lei nº15/93, na pena de um ano de prisão, substituída, ao abrigo do disposto no art.43, CP, por cento e trinta dias de multa, à taxa diária de €5.
Notificado daquele acórdão, o arguido requereu em 1ª instância a substituição da pena de multa por dias de trabalho a favor da comunidade, nos termos do disposto no art.48, CP ou, não sendo essa substituição admitida, o pagamento da multa em 12 prestações mensais.
O Ministério Público declarou nada ter a opor, após o que o Mmo Juiz, em 29Out.15, proferiu o seguinte despacho: "...
Por acórdão do TRL, transitado em julgado em 13.05.2015, foi o arguido M., condenado na pena de 1 ano de prisão, substituída por 130 dias de multa, à taxa diária de €5.
A fls.238 a 240, veio o condenado requerer a substituição da pena que lhe foi ditada, por dias de trabalho, alegando para o efeito, a falta de condições económicas para proceder ao pagamento da mesma.
Apreciando e decidindo.
Do teor expresso dos arts.43 e 48, ambos do Código Penal e, bem assim, da sua inserção sistemática no Código Penal, se extrai que a pena de prisão aplicada em medida não superior a um ano, cuja substituição por multa ou por prestação de trabalho a favor da comunidade tenha sido ordenada, configura uma verdadeira pena de substituição da pena de prisão, o que significa que o momento correcto à sua aplicação é o de prolação de sentença.
Definida como pena de substituição, nenhuma outra consequência lógica se pode extrair que não seja o indeferimento do ora peticionado pelo condenado, pois que os dias de multa que lhe foram aplicados, configuram já aplicação de uma pena de substituição, pelo que se não pode proceder a uma nova substituição.
Na verdade, tendo sido ponderada e acolhida a aplicabilidade, por adequada ao caso concreto, de uma pena substitutiva - a pena de multa -, não pode agora o condenado requerer que lhe seja aplicada nova pena substitutiva.
Pelo exposto, indefere-se o requerido.
…".
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Deste despacho de 29Out.15, recorre o arguido M., alegando a sua situação económica e profissional não lhe permitem pagar a multa, que não existe impedimento à substituição da pena de multa por trabalho a favor da comunidade e concluindo que essa substituição deve ser deferida.
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O recurso foi admitido a subir imediatamente, nos próprios autos e com efeito suspensivo, após o que o Ministério Público respondeu, concluindo pelo seu não provimento.
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Neste Tribunal, o Exmo. Sr. Procurador-geral Adjunto, em douto parecer, conclui pela procedência do recurso: "...
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