POINT 10, item "i": Resources on Criminal Procedure

George Marmelstein Lima 1. CONCEPT. Action is required to measure or judge grant

ed the party concerned, in a consistent way and to obtain reconsideration of the
decision or procedural situation, in order to correct it, modify it or confirm
it. 2. BACKGROUND. The resources are based on the psychological need to overcome
, the human fallibility in the fight against choice. 3. Inadmissibility. 3.1. OB
JECTIVES. They are: a) belong b) appropriate, c) timing, d) regularity; e) lack
of fact impedes or extinguished. a) belong: the application must be provided by
law. Therefore, there is no point bringing an action that does not exist in the
law of criminal procedure, for example, the instrument further. b) adequacy: the
action must be appropriate to the decision whether to challenge, because every
decision the law provides an adequate remedy. Nevertheless, under the principle
of fungibility of resources, also called the theory of resource indifferent, mis
guided bringing an action does not prevent the other from its recognition that o
ffered within the correct time and while there is no bad faith of the applicant.
In this sense, art. 579 of the CPP, which provides that, "unless the possibilit
y of bad faith, the party will not be undermined by an appeal by another." Besid
es the absence of bad faith, the law has required that the applicant does not in
cur mistake and adheres to the term of the correct resource. It also applies the
principle of unirrecorribilidade decisions, whereby for every decision there is
only one appropriate remedy. This principle is mitigated by certain legal excep
tions, it is possible to simultaneously belong to two appeals of that decision,
eg protest new jury, by fraudulent crime against life, and the appeal related cr
ime, bringing simultaneous extraordinary appeal the Supreme Court, and appeal es
pecially to the Superior Court. Finally there is the principle of variability of
resources, which allows quitting is to bring one another as long as within. Rem
ember that the prosecutor can not give up the resources it brought. c) timing: t
he bringing of the appeal must be made within the period provided by law. Genera
lly, in criminal proceedings, the deadline for the lodging of appeals is five da
ys. However, there are other deadlines. The appeal in the strict sense must be f
iled within five days, the appeal in the strict sense under inc. XIV, art. 581 (
to include or exclude jurors on the general list) must be filed within twenty da
ys (CPP, art. 586, sole paragraph); protest for new trial within five days, the
reverse or annul or void within ten days; embargoes
declaratory within two days, the letter of Testimony in 48 hours, and the specia
l or extraordinary recourse within fifteen days, the bill of review of an order
denegatório special or extraordinary appeal within five days, the ordinary appea
l constitutional in five days to appeal, in five days, or for criminal jurisdict
ion of the Special Criminal Courts, within ten days, now accompanied by its reas
ons. Public defenders, in both instances should be notified in person and enjoy
a double period for appeals. It is irrelevant the order in which they are summon
ed counsel and defendant's sentence because the deadline for appeal only begins
after the last summons. The period shall be of the order (excluding the day of t
he beginning) and no warrant of attachment of the file. However, in the case of
a letter rogatory, the period runs from the letter joined the case-file. d) regu
larity: the application must fulfill the legal formalities to be received. As a
general rule, it is accepted on appeal by petition or by word in the file (verba
lly). In some cases, only accepts the filing of petition, reverse or annul, decl
aratory embargos Letter of Testimony, a special appeal, special feature, eyre pa
rt. Another formality inherent feature is the motivation, ie, presentation of th
e reasons, without which it can operate the void. Late submission of the reasons
is mere irregularity, with no procedural consequence. Even in the case of appea
l, in which the CPP provides its rising "with or without reasons", the prevailin
g understanding of the imperative necessity for the presentation of reasons. Pro
test for new jury would be an exception to the requirement of motivation, no nee
d for reasons. e) impeding events: those that prevent the bringing of the appeal
or the receipt thereof, and thus appear before an appeal,€as a waiver of the ri
ght to appeal and retraction of the defendant to prison, where the law requires.
As for the waiver, with divergence between the will of the defendant and the de
fender, despite the discussion around to know which will prevail, it is understo
od that should override the will of those who want to use. Regarding the require
ment to collect the defendant to the prison to be able, has art. 594 of the CPP
that the defendant "can not appeal without taking to the prison, or give bail un
less it is primary and of good report, well recognized in the sentence, or convi
cted of a crime that is free loose." The device should be applied and interprete
d with caution, given the constitutional principle of presumption
of innocence. It was understood that characterize the escape of the accused actu
ally prevents the action. The Supreme Court has held that "one can not constrain
the exercise of constitutional rights - legal defense and two levels of jurisdi
ction - the fulfillment of procedural caution. Impossibility of not receiving th
e appeal, or declare it deserted because the defendant is a fugitive. " However,
overviews the understanding that "the demand for provisional arrest to appeal,
does not violate the constitutional guarantee of presumption of innocence." (Doc
ket 2009, STJ). So with the new constitutional order, art. 594 should be reinter
preted, not admitting further proceedings before the arrest of res judicata of t
he conviction without the presence of the prudential requirements of the prison.
Informational Supreme: By six votes to five, the full understanding that the ru
le of Art. CPP 594 - "the defendant can not appeal without taking to the prison
,(...)" - remains in force and has not been overturned by the presumption of inn
ocence of art. 5, LVII, FC, according to the majority concerns the discipline of
the burden of proof - or the adoption, on 28/05/1992, by decree-law of Congress
, the pact S. Jose, Costa Rica. Ministers were defeated Mauricio Correa, Francis
co Rezek, Ma RCO Aurelius, Ilmar Galvao and Sepulveda belongs. HC 72 366-SP, rel
. Min Neri da Silveira, session of 13.09.1995. The § 2 of art. 2 of Law of Hideo
us Crimes ("In case of conviction, the judge will decide reasoned that the defen
dant may appeal in freedom.") Should be observed both to grant the right to rele
ase pending appeal as to neg be so, since all decisions of the judiciary must be
substantiated (CF, art. 93, IX). With this understanding, the Crowd, by majorit
y, granted habeas corpus to ensure that the patient caught in the act and condem
ned as raiding in arts. 13:14 Law Toxic (Law 6.368/76), the right to wait for hi
s trial of the appeal for lack of grounds for the ruling regarding the maintenan
ce of custody - appeared only in the sentence: "These reasons do not seem to all
ow the the release of the defendants (Law 8.072/90, art. 2, § 2). Min won the Ne
ri da Silveira, rejecting the order because I believe the general rule is the he
inous crimes that the defendant appeals arrested and that § 2 of art. 2 of Law 8
.072/90 just opened the possibility that I may or release pending appeal if the
judge reasoned delete this rule. Considering that the Law 9.035/95 available on
the operational means for the prevention and prosecution of crimes resulting fro
m the actions of a gang or gang determines in its article. 9 that "the defendant
can not appeal to freedom in the crimes foreseen in this law s", therefore, the
defendant has no right to bail. Based on this understanding, the Class dismisse
d habeas corpus which sought to see recognized the right of the defendant to the
said benefit to the res judicata co r po ndenação be it primary, and a good rec
ord of being prosecuted for crimes bailable (receiving misconduct and conspiracy
: CP, arts. 180 and 288). HC 75.583RN, rel. Min Moreira Alves, 09/09/1997.
In the case of defendant convicted of trafficking, the general rule is that he c
an not appeal without taking in to arrest (Law 6386/76, art. 35), the appeal is
exceptional in freedom and depends on the court reasoned ( Law 8072/90, art. 2,
§ 2). Possibility which, however, does not exist in the case of resources devoid
of suspensive effect, as are the R ESOURCES special and extraordinary. Previous
: HC 73 657-SP (see Newsletter 43). HC 74.828MG, rel. Min Maurício Corrêa, 02/25
/1997. A summary of the STF 393 prescribes that "to require judicial review, the
offender is obliged to retire to the prison." f) extinctive facts: the facts ar
e incidental to the lodging of an appeal, which prevents his knowledge (abandonm
ent and desertion). The prosecutor can not withdraw the appeal filed. The defend
er can only do it if you have special powers.€The defection can occur from lack
of preparation (payment of legal costs) or the trail, soon after sought. On the
latter point, art. CPP 595 determines that "if the convicted defendant flee afte
r he appealed, the appeal shall be declared deserted." In this case, the recaptu
re does not render void the defection. The defection does not apply to the resou
rce in strict sense. In the case of MP's appeal in the interest of the defendant
, the trail does not mean this desertion. Checked the flight of the prisoner aft
er he appealed, the appeal shall be declared deserted, preventing thus the conti
nuation of the appeal, even after presenting himself or be captured. The defecti
on is final and irrevocable. It's automatic. Focus even when the defendant is ca
ught before the trial of the appeal (in the sense of the text: Habeas Corpus No.
71769-1-SP, Rel Min Moreira Alves STF, DJU, 17/03/1995, p. 5790). 3.2. Subjecti
ve assumptions. They are: the legal interest and locus standi. a) legal interest
"does not admit, however, against the party who has no interest in reforming or
modifying the decision" (Article 577, paragraph one of the CPP). The MP may app
eal a guilty verdict for the defendant, as the costs statute. However, there are
those who understand that if the ministerial representative asked in closing ar
guments, the sentencing judge and fully accepting the request, condemns the defe
ndant would lack interest for the appeal in favor of the offender. The Supreme C
ourt, however, has held that freedom of belief of the prosecutor is above the ru
le of appellate interest and the principle of unity of public ministry. There is
no uniformity as to the interest of the defendant's appeal in case of acquittal
, in order to change the basis for acquittal. In my view, there obviously are in
terested in, for example, to change the fundamentals of
"Acquittal for insufficient evidence" to "being the lack of proven fact." In thi
s regard: "The prevailing understanding in the context of the doctrine is the ad
missibility of the acquittal for lack of evidence when the offense can generate
compensation (Julio Mirabete, Criminal Procedure, p. 585; Tourinho Son, Criminal
Procedure, vol. 4, p . 235). " b) legitimacy: the application must coincide wit
h the procedural position of the part. The MP part is illegitimate to appeal the
acquittal in a criminal action only private because the plaintiff might have as
you want action, forgiving the offender, or simply by complying with the decree
absolutório. However, the MP is entitled to appeal in favor of the defendant, w
hether public or private action, as the tax law. The wizard of the indictment on
ly entitled appellate supplementary, so that if the MP's appeal is broad, that i
s, against any decision, that will not be known. The appeal filed by defendant l
ayman should be known, because it is a legitimate party to appeal. 4. FORMALITIE
S OF filing may be brought by the term appeal, the appeal in the strict sense an
d protest for new trial. Only by petition must be filed extraordinary appeals, t
he special appeal, reverse or annul the declaratory and the partial eyre and the
letter of Testimony. The explanation of motviso is not required at the time of
filing, only when the offering of reasons, except in cases of Law 9099/95, in wh
ich the appeal shall be accompanied by the reasons therefor. The Supreme Court r
ecently ruled that: It appears insusceptible knowledge of the appeal the reasons
for which are submitted after the deadline referred to in art. 82, § 1, of Law
No. 9.099/95, therefore, the system of Special Criminal Courts, the legislation
establishes a single term - that is ten (10) days - to appeal and to argue. the
perspective of the Statute of the Special Courts, not just the party in a crimin
al court, only indicates its intention to appeal. More than that, we need him th
e burden to produce, within the legal and appellate along with the petition, the
reasons for the desired reform of the sentence that is challenging. Doctrine. 5
. Shipping ex officio. In criminal proceedings, the chances of resource required
(double degree required) are: the decisions to grant habeas corpus; summary of
acquittals in jury; sentences that give the criminal rehabilitation, to determin
e the order of filing and acquittal in the case of crimes against the public eco
nomy. While some understand that the chances of referral letter (remember that i
t is not exactly appeal) have not been approved upon by the Constitution, which
gives the Attorney General's exercise of private ownership of public prosecution
, the Supreme Court has held that "The
art. 411 of the CPP,€which provides the pertinence of the letter of appeal that
decision immediately acquit the defendant, was not repealed by art. 129, I, FC (
are institutional functions of the prosecutor: I - promoting, exclusivity, publi
c criminal action, as provided by law). "6. Judgement of Eligibility: On appeal,
the foretaste is both the judge called on the court jurisdiction over the appea
l. On appeal in the strict sense, running the offense and the letter of Testimon
y in the trial of foretaste exists primarily because the judge or the clerk will
be required to receive and process the resource, yet not completed any appellat
e assumption. 7. EFFECTS OF RESOURCES. a) devolution: it is common to all resour
ces. Pour consists of the higher level knowledge of a particular issue. Embargoe
s declaratory said resources are iterative, as the review of the matter is retur
ned to the agency itself appeal. Others, just return the matter to the court ad
quem, for example, the appeal (repeated application). There are also hybrid case
s, in which the question is reviewed by the court and the defendant body of high
er instance, as is the case of appeal in the strict sense of grievance and runni
ng. b) Suspended: The feature works as a condition precedent of the effectivenes
s of decision that can not be performed until there is final adjudication. In th
e silences of law, the appeal has no suspensive effect. The appeal of the acquit
tal has no suspensive effect, to the conviction, will be only if the defendant i
s primary and to have a good record. The appeal in the strict sense of the indic
tment suspends the execution of jury, but does not prevent the provisional arres
t, if pronounced is a recidivist or has bad antencedentes. c) Extensive: In case
of contest officials, the decision of an appeal by the defendants, if founded o
n grounds other than character exclusively staff will use the rest. Granted habe
as corpus to ensure the patient - who, condemned by the first instance, did not
appeal - the right to wait for his trial of the appeal lodged by only two other
co-defendants. It was held the broad interpretation of art. 580 of the CPP, in v
iew of the uniqueness of the crime ["In the case of concurrent agents (Criminal
Code, art. 25), the decision of an appeal by the defendants, if founded on groun
ds other than character exclusively staff will use to others. "]. The Min Nelson
Jobim, Rapporteur, felt that it was in kind of a situation equivalent to the Jo
int Party unity, the art. 509 of the Code of Civil Procedure, so that the suspen
sory assigned to the appeals filed by the co-defendants extends to patients who
did not appeal. HC granted to invalidate the certificate of res judicata regardi
ng the patient, assuring him the right not to suffer the execution of criminal s
entence, while the tip of trial appeal filed by the co-defendants. Beaten, in pa
rt, that deferia mins Marco Aurelio
the order to a greater extent for the patient to wait for free until the transit
in judged of sentence. In case of appeal, the court's decision may extend to co
-defendant who did not appeal the following cases: absence of material fact, or
fact of atypicality does not constitute a crime, and causes of extinction of cri
minality that is not character staff. d) Regressive, repetitive or delayed: it i
s done that allows the court to withdraw from the appeal court, and thus make th
e decision to prolator, the ability to amend or revoke it partially or entirely.
GENERAL FRAMEWORK OF RESOURCES
dec s õ es In be it would cut o r s (quest õ es in c id enta s) s im p le s (to
ques esp ro cessua s) m is tas (quest õ esded Omate go and it would l) term in f
in it at asoude iv iv ascom amentodom is ju lg r lg amentodem it osem ju st it i
s the
id sit Oestre it ocondenat O r ia t
s and n t a m p a id it
abso lu t o r O would spr pr ia t im pr o pr ia t
decisions to challenge Article 593. Be appealed within five (5) days: I - the fi
nal judgments of conviction or acquittal; II - the final decisions, or final str
ength, given by a single judge in cases not foreseen in the previous chapter, Se
ction 581. Be appealed in the strict sense of the decision, order or sentence: .
.. Basic operations:. 1 conviction or acquittal: appeal (art. 593, I), 2. ¨ Othe
r, the judge, you must check the cases specified in Art. 581;. 3 does not antici
pate the CSR, if the decision is final (interlocutory or mixed terminative witho
ut trial on the merits)€shall apply to appeal (art. 593, II) 4. ° if the decisio
n is simple interlocutory may eventually fit eyre partial MS or HC 5. shall not
fitting, the decision shall be final and may be argued during the appeal in the
primary.
8. Species Resources 8.1. resources themselves: Appeal (Arts. 593-606), appeal i
n the strict sense (arts. 581-592), injuries (Laws No 8.038/90, 7.210/84 etc..)
Letter of Testimony (Arts. 639-646) reverse or annul (Art. 609, para. only), req
uests for clarification (arts. 619-620), protest for new trial (arts. 607-608),
partial eyre (Laws No 1.533/51, 5.010/66 etc.). , an extraordinary appeal (CF, a
rt. 102, III, Law No. 8.038/90), special feature (CF, art. 105, III, Law No. 8.0
38/90) 8.2. actions deconstitution or challenged. judicial review (Art. 621 -631
), habeas corpus (arts. 647-667), injunction (Law No. 1.533/51) 9. APPEAL:
dec s õ es In be it would cut o r s (quest õ es in c id enta s) s im p le s (to
ques esp ro cessua s) m is tas (quest õ esded Omate go and it would l) term in f
in it at asoude iv iv ascom amentodom is ju lg r lg amentodem it osem ju st it i
s the
id sit Oestre it ocondenat O r ia t
s and n t a m p a id it
abso lu t o r O would spr pr ia t im pr o pr ia t
Concept. It is the appeal of the sentence final or ultimate strength, for the se
cond instance, in order that there should there review the matter, with conseque
nt partial or total modification of the decision. Be appealed all decisions of t
he judge, except the simple interlocutory and those which fit the action in the
strict sense. It is a residual resource, which can only be brought if there is n
o express provision to belong to appeal in the strict sense for the hypothesis.
However, the appeal enjoys precedence over the action in the strict sense, so th
at if the law expressly provides for the relevancy of this last resort with resp
ect to a part of the decision and appeal of the remainder, we consider the appea
l, which will act as sole remedy enforceable . Example: the conviction appeal al
ways lies, according to the CPP, with no possibility of appeal in the strict sen
se, compared to the absence of express provision to that effect. However, if the
decision denies probation, provided the appeal is strictly construed. Therefore
, if the sentence, there was a denial of the benefit would be in doubt: it is an
appeal against the merits of the decision and appeal in the strict sense of the
party denies the probation? There would be two appeals to the same decision? An
swer: no, because the appeal in this case
enjoys primacy. It will only appeal against any part of the sentence. Applies to
the Criminal Procedure to stop tantum quantum devolutum appellatum. The court c
an not judge ad quem ultra or extra petitum, but simply the matter that was retu
rned by the appeal of the party and may not go beyond to receive the request or
reject it in whole or in part. However, the principle of favor king, the court i
s free to determine the sentence, not even on the war since it is to favor the d
efendant. Procedural moment where the appellant should limit the terms of the ap
peal. The MP should set limits on the petition of appeal lodged ("extension of t
he appeal petition is measured by its intervention and not for the reasons of ap
peal, so that the public prosecutor, as was the case, without calling for establ
ishing restrictions, can not, then the reasons to restrict the appeal, "STF). In
the case of defense, the limits are fixed as well in bringing, having, however,
understanding the opposite stance, arguing that is the reason that best reflect
ed the appellant wishes to appeal against it. The Supreme Court began to underst
and that the defender dative is not obliged to appeal. Appellate subsidiary of t
he appeal officer. In the public prosecution, if the MP does not interpose an ap
peal in qüinqüíndio legal, the victim or her spouse, ascendant, descendant or si
bling may appeal, even though they have qualified as assistants, provided they a
ct within a fortnight from the date of the expiry of the MP. Appellate Assistant
. Deadline: five days, if enabled, from the date of the summons; fifteen, if not
enabled, after the expiration of the deadline for the MP. However, if the wizar
d is enabled before the PM summoned in this case the term (five days) will begin
after the res judicata to the prosecutor, not a summons. Thus, if the prosecuto
r fails to do so in due time and way,€Assistant prosecution can appeal a verdict
of acquittal on both the sentence with the aim of increasing the penalty. If th
e prosecutor also appealed more broadly, asking, in addition to modifying the se
ntence, a mistrial, its action takes precedence over the defense, in the latter
become impaired in the event of appointment. The acquitted co-defendant can not
act as assistant to appeal demanding the conviction of another co-defendant, sin
ce the art. CPP 270 prohibits the claim. "Having been included in the complaint
as responsible for an object of criminal activities of this calculation, the onl
y position that the accused can occupy the defense. Although acquitted in the fi
rst degree, this fact does not eliminate the condition of the defendant, which p
revents his return to the file as an assistant with the prosecution. This interv
ention is unique to the offended.
Appeal not known "(TJRGS, ACR. 694 115 734, Third Criminal Chamber, Des Rel. Moa
cir Danilo Rodrigues, 10/20/1994). For last, although the law does not make expl
icit reference to counter-arguments for appeal of Defense, the doctrine is peace
ful that this is a bounden duty of the assistant, who should be summoned to do s
o, even because they were included among the statements mentioned in art. 271 of
the CPP. Overviews of the Supreme Court on the appeal of the wizard: Precedent
No. 210 - The assistant public prosecutor may appeal, including unusually, in a
criminal action in cases of arts.584, paragraph 1, and 598 of the CPP. Precedent
No. 448 - The term used for the wizard suppletive begin immediately after the p
assing of the deadline of the prosecution. Resignation and withdrawal. The defen
der dative can not withdraw the appeal because to do so would require special po
wers. However, there is bound to appeal, given the principle of voluntariness of
resources. Hypotheses of no place of appeal. - All fits conviction appeal - alm
ost every sentence of acquittal appeal lies unless the acquittal summary, in whi
ch case it will be the "resource" officer and appeal in the strict sense - that
the final judgments, judging the merits, will end relation to procedural or lega
l proceedings, without, however, acquit or convict the accused (the final decisi
ons in the strict sense of merit or terminals). Note By express statutory provis
ion, the appeal in the strict sense is appropriate to attack the ruling declarin
g the defunct criminality. - Decisions with the force of final (interlocutory mi
xed), ie those which put an end to one phase of the procedure (not completed) or
process (terminals), without judging the merits. Some hypotheses decisions invo
lve the use of these species in the strict sense (eg, indictment, dismissal and
rejection of the complaint or complaints). On the dismissal of the complaint, th
e Special Criminal Courts, the proper appeal is the appeal. Likewise, the JEC's,
it will appeal the sentences homologation homologation of the transaction and n
ot criminal, and judgment confirming the conditional suspension of proceedings.
To rule whether the case is an appeal in the strict sense or appeal: appeal shal
l lie against any final decisions or outright force, since the law does not expl
icitly provide for appeal in the strict sense. The appeal is the residual resour
ce. The simple interlocutory judgments are final (eg receipt of the complaint or
claim) unless express provision for appeal in the strict sense (eg decision to
grant bail).
Appeals against decisions of the jury. The appeal of decisions of the Jury has a
limited scope, since it returns to the higher instance the full knowledge of th
e matter, under the constitutional guarantee of the sovereignty of verdicts. On
appeal by one of the legal reasons, the court is confined to them, unable to exp
and its field of analysis. Are reasonable on the following assumptions: a) void
after the indictment; b) ruling of the presiding judge contrary to the express l
etter of the law or the judges' decision, c) when there is error or injustice in
the application of the penalty or security measure d) when the judges' decision
is manifestly contrary to evidence in the file. In this case, it is only an app
eal on that basis only once. No matter which party has called, is a time for eit
her. NB In case of conviction for crimes related, the court, on appeal, may decl
are a mistrial with respect to one, keeping the decision in relation to other cr
imes. Duration of appeal. As a rule, is five days after the subpoena. In the cas
e of summons by publication, the period begins to run from the outlet of the per
iod of notice, which shall be sixty days,€penalty imposed was less than one year
and ninety days, if not less than one year. In the case of subpoena by rogatory
, the period begins to flow from the date of attachment to the file. In the even
t the defendant shall be summoned him and his defender, starting soon after the
last summons. Processing of the appeal. a) the appeal is filed by word or action
, admitting, though, the interposition by telex or fax. b) On appeal, the reason
s must be offered within eight days if the crime, and three days if it is a misd
emeanor, except in crimes of criminal jurisdiction of the special court, when th
e reasons must be presented at time of interposition. c) the subpoena is require
d to pass the appellant's time running for the offering of reasons for appeal. d
) if the wizard, this reasoning within three days after the MP. e) if the prosec
ution is brought by the offended party, the MP will provide its reasons, then fo
r three days. f) counsel for the appellant may withdraw the case outside the off
ice to argue the appeal, however, if more than one defendant, the period is comm
on and will run on the registry. The MP has always seen the file out of office.
g) if the appellant wishes, may your reasons on appeal before the court ad quem.
The wizard of the indictment does not have this option. h) with the reasons or
counter-arguments, new documents can be joined. i) MP can not withdraw the appea
l, nor restrict its scope into the reasons, according to doctrinal understanding
. There are positioning in the opposite direction.
j) the defense can not change the grounds of appeal within the grounds of appeal
. l) nonexistent court to withdraw the appeal. f) if more than one defendant, an
d have not been met all tried, or have all appealed, it will be appealing to pro
mote the extraction of transfer of the case, referral to the upper body. n) sure
ly understand that the file can not rise without the reasons being the PM is the
defender of the accused. o) late submission of grounds of appeal does not preve
nt the knowledge of the resource. p) the defender is obliged to offer counter-ar
guments, under penalty of nullity. Bail. "The requirement for provisional arrest
to appeal, does not violate the constitutional guarantee of presumption of inno
cence" - from the Supreme Court docket in September. The appeal of the acquittal
has no suspensive effect, so that the defendant, if arrested, should be placed
immediately released. According majority jurisprudential understanding, the appe
al of the conviction only have suspensive effect unless the defendant is primary
and has a good record, and thus become established in the sentence ("can not ap
peal without taking to the jail or pay bail, unless primary and good background,
well recognized in the sentence, or convicted of a crime which released free ")
. If the defendant at the time of conviction, was arrested on grounds of flagran
te delicto or preventive, may not appeal to freedom, even primary and bearer of
good background. Purposes of appeal. a) devolution: tantum devolutum as appellat
um b) suspension: only in sentencing where the defendant is of good primary and
antencedentes c) regressive: no; not exist in the appellate court to withdraw d)
extensive 'co- defendant did not appeal that benefits from the appeal in part i
t is common. Reformatio in pejus. Is prohibited. The court can not only aggravat
e the penalty where the defendant has appealed. Precedent 160 FTS, "is void the
court's decision to accept it, against the defendant, not raised on appeal nulli
ty of the indictment, except in cases of appeal letter." Thus, unless the prosec
ution resorted to asking for recognition of nullity, the court may decree the ex
officio to the prejudice of the defendant, even if the nullity is absolute. Ref
ormatio in pejus indirect. Annulled the sentence in exclusive remedy defense, ma
y not be new decision handed down more heavily than the void. For example, defen
dant sentenced to one year in prison and gets calls for the invalidation of the
sentence, the new decision could impose a maximum penalty of one year, otherwise
the defendant would be prejudiced
indirectly by its action. These are exceptional situation where the act null eff
ect (in this case, the effect of limiting the penalty in the new decision). The
rule, however, has no application to limit the sovereignty of the grand jury, si
nce the law prohibiting the reformatio in pejus can not prevail over the constit
utional principle of the sovereignty of verdicts. So set aside the jury in the r
etrial, the jury may make any decision, even more damaging to the accused (eg me
et a qualifier who had not been known before). Note€If the conviction was overtu
rned on appeal because the defense, but the vice of absolute incompetence, case
law has accepted the rule prohibiting reformatio in pejus indirect, since the de
fect is so severe that not could, under any circumstances, admit that a sentence
imposed by Judge absolutely incompetent, had the power to limit the penalty in
the new decision. Reformatio in mellius. There is no obstacle as the Court deems
extra petita, since in favor of the defendant. 10. APPEAL IN STRICT SENSE. Conc
ept. Appeal by which it proceeds to review a decision in matters specified by la
w, allowing the appeal the judge himself a reconsideration of the matter, before
the file is transmitted to the second instance. Belong. The cast of the legal c
hances of relevancy does not allow expansion, although there may be up to broad
interpretation and analogy. Chances are of legal relevancy of the resource in st
rict sense: a) the ruling that rejected the accusation or complaint. Receipt, as
a rule, does not fit any application, only the filing of habeas corpus. However
, in the case of crimes defined in the Press Law in the strict sense appeal the
decision to receive the complaint or grievance and appeal of that rejection. In
the case of criminal violations of criminal jurisdiction of the special court, n
o appeal lies in the strict sense of the decision to reject the complaint or gri
evance, but appealed. b) conclude that the decision by the incompetence of the c
ourt. The decision concluded that the jurisdiction does not fit any application,
but only habeas corpus. c) the decision to uphold the exceptions, unless the su
spicion. There are five exceptions set forth in the CPP: suspicion, lack of cour
t, lis pendens, part of illegitimacy and res judicata. Exceptions must be oppose
d within the defense prior to acting in separate, without suspending a rule, the
progress of the criminal action. If the judge rejects any exceptions, can not b
e appealed. Only in case of emergency of suspicion, if the judge were to accept
the exception, not fit any application. The judge must give
spontaneously by a suspect. However, not accepting the suspicion, sued in aparta
do send the petition, shall give its reply in three days, and may offer witnesse
s and then refer the case to court. d) the decision to pronounce the defendant o
r dismissal. e) the decision to grant, deny, judge or arbitrate inapt bail, reje
cting request for remand or revoke the decision to grant bail or relax arrested
in flagrante delicto. No appeal the decision to detain or refuse application for
bail or relaxation in prison. The decision revokes probation for excessive dela
y, is not tantamount to granting bail, so it is also actionable. f) the decision
to acquit the accused summarily. A summary acquittal occurs in the face of clea
r evidence of the existence of a cause of exclusion of illegal activity and evid
ence of the guilt because excludes (acquittal itself). If it is recognized as a
criminal, but also nonimputability agent for mental illness, there will be acqui
tted with imposing summary measure (improper acquittal), and in this case, the a
ccused will also have an interest in taking action. g) the decision to dismiss t
he bail broken or lost their value. Bond breaking occurs: when the defendant law
fully summoned to act of the process, fails to appear without justification, whe
n this change residence without prior permission from the prosecuting authority
if the accused absent without prior permission for more than eight days his resi
dence, when the duration of the guarantee, practice another criminal offense. Br
ings about consequences: the loss of half its value, a ban on new bail in that c
ase, the accused in absentia to prison and his recollection. A decision to decla
re a breach or loss of bail is the exclusive competence of the judge. The appeal
in the strict sense, in the case of forfeiture of bail, shall have suspensive e
ffect, in the quabramento, suspend only the loss of half its value and do not pr
event other effects. h) the decision to declare the criminality of the accused.
Are the extinction of punishment, according to art. 107, CP: I - the death of th
e agent; II - for amnesty, pardon or grace; III - retroactivity of the law no lo
nger considers it as criminal; IV - by prescription, or decay perempção; V - the
resignation of right to claim or accept the forgiveness, the crimes of private
action; VI - the withdrawal of the agent, where the law allows; VII - the marria
ge of the agent with the victim for crimes against morals, as defined in Chapter
I ,€II and III of Title VI of the Special Part of this Code; VIII - by marriage
with the victim's third in the crimes referred to in the preceding item, if com
mitted without actual violence or serious threat, provided that the offended doe
s not require further investigation or police criminal action within sixty (60)
days of celebration; IX - forgiveness, in cases provided by law.
i) the decision to reject an application for revocation of criminality. j) of th
e decision granting or denying habeas corpus. It is, in the case of a lower cour
t ruling. In the event of a concession, it is necessary for referral of office.
Denies decision made on a sole or last instance, the TRF's and TJ's, an appeal t
o ordinary STJ. Since the decision rendered by the Superior Courts denies it, it
will be an ordinary appeal to the Supreme Court. l) the decision to grant, deny
or revoke the probation. The device has no application. If the decision be embe
dded in the sentence may be appealed. After the transit in judged of sentence, b
e filed in execution. m) the decision to grant, deny or revoke parole. The devic
e is also repealed. It is, in this case, wrong in execution. n) the decision to
annul, in whole or in part. o) the decision to include or exclude jurors on the
general list. The period in this case will be twenty days. p) of the decision de
nying the appeal or dismiss it deserted. q) the decision to order the suspension
of the process, because the question. Remember that the criminal proceedings su
spended, pending a solution to the ruling, is also suspended the prescription of
the claim punitive. r) the decision to order the unification of feathers: Repea
led. It offense running. s) decide that the incident of falsehood. t) of the dec
ision that imposes a security measure after the sentence has been handed, or tha
t continues, replace or repeal: Repealed. It offense running. u) the decision to
convert to a fine or imprisonment in detention simple: even repealed. Article 5
1 of the CP: "res judicata the sentence, the fine will be considered debt value,
applying them to the rules of law relating to debts owed to the State, includin
g with respect to causes interrupt is precedent prescription ". Overview of rele
vancy: final decisions and final decree of termination of criminality (VIII) sum
mary acquittal (VI)
dismissal (IV) non-receipt of complaint or complaint (I) Concessions or denial o
f habeas corpus (X) host of exceptions (III) denied the appeal (XV) interlocutor
y judgments mixed prison or freedom (IV, V, VII and XI) do not recognition of ex
tinction of criminality (IX) conversion of a fine or imprisonment in detention (
XXIV) interlocutory judgments simple pronunciation (IV) declaration of incompete
nce of trial (II and III) cancellation process (XIII) inclusion or exclusion of
jurors on the general list ( XIV) stay of proceedings (XVI) incident falsehood (
XVIII) outmoded items belong to the offense of the LEP, art. 197 probation [!] O
r parole (XI and XII) unification of feathers (XVII) security measure (XIX, XXII
I) the appeal process in the strict sense. The appeal in the strict sense will r
ise in their own autos in the cases listed by art. 581, sections I (rejection of
the complaint or grievance), III (decision upheld the exceptions, unless the su
spicion), IV (who pronounce the defendant or dismissal), VI (summary acquittal),
VIII (judging extinct punishability ) and X (allowing or denying writ of habeas
corpus). An appeal is lodged within the period of two days, the applicant must
provide its reasons, which necessitates the subpoena, without which the period b
egins to run, according to jurisprudential understanding. The lack of offering o
f reasons not prevent the rise of the resource. There is the appeal in the stric
t sense of the possibility to argue on appeal. Regressive effect: receiving the
file, the judge within two days, overhaul or uphold its decision to instruct the
sending resource with the copies as it deems necessary. The lack of expression
of the judge matter nullity, the court should return the record for this provide
nce. Defection does not occur in case of leakage of the defendant shortly after
the filing of the appeal in the strict sense, unlike the case with the appeal. 1
1. NEW PROTEST BY JURY.
Concept. Was the request for a new trial, where, by reason of a single crime has
been imposed imprisonment of not less than twenty years. It is appreciated by t
he court a quo, with no need to climb to a higher court. Features: a) is a uniqu
e feature of the defense;€b) is unnecessary reasons (reasons), c) can only be us
ed once. Purpose. Deconstitute the previous trial, with the completion of anothe
r, in the first place. Procedure: Similar to the appeal. Assumptions. a) sentenc
e b) imprisonment; c) penalty of not less than twenty years; d) the sentence imp
osed by a single crime. If the penalty equal or exceed twenty years, due to the
tender material, it is not a protest for new trial because the total elapsed fro
m the sum of penalties imposed for more than a crime. In the case of formal comp
etition and continuing offense, it will protest by another jury, as in the first
case, it has been a single action, which drifted two or more crimes, and in the
second case, despite the plurality of conduits, it is assumed that there is not
ionally a criminal unit. In the event of a formal imperfect, can not protest, ac
cording to prevailing understanding, because, as the agent producing all the des
ired results, one can not talk about actual or fictitious unity. Subjectively, t
here is a plurality of behaviors, and for this reason, the legislature sends add
feathers in the same way in the competition material. f) penalty imposed by the
presiding judge, that is, at first instance. Not admit the protest, if the pena
lty was imposed in musical appeal. Protest for new trial will not prevent the fi
ling of the appeal if, in the same sentence, the defendant has convicted of anot
her crime, that does not fit in protest. Note If the defense expect the realizat
ion of the new jury, only to then submit the appeal related crime, you lose the
deadline for doing so. If the defendant appeals on the merits, instead of protes
ting for new trial, nothing prevents the court knows the appeal in protest. The
escape of the defendant shortly after the protest for new trial, does not involv
e desertion, as happens with the appeal. Reformatio in pejus indirect. In the re
trial, jurors are free to decide, since the ban reformatio in pejus, directly or
indirectly, is such infra, unable to overcome the constitutional principle of t
he sovereignty of the verdicts. However, the penalty can not apply juizpresident
e greater, if the decision is maintained by the new ruling council. For example,
the first jury, the defendant is charged with murder triply qualified, been con
victed in only two qualifiers. Granted the protest, the second trial, jurors may
freely choose all three qualifiers and are not limited to the first decision. H
owever, if repeated the same
vote, the presiding judge may not impose a heavier penalty, as it applies to leg
al prohibition. Gist of STF 206: "is zero the subsequent trial by jury with the
participation of jurors who worked in the previous trial of that process." 12. L
ETTER Testimony Concept. Feature that is intended to provoke a reconsideration o
f the decision denying or impairing the tracking feature in the strict sense of
grievance and running for some, the protest by another jury. There are those who
understand not fit the letter of Testimony in protest for new trial, since this
feature does not rise to the second instance, as is appreciated by the court a
quo, which would frustrate the primary function of the letter. By express statut
ory provision, the appeal in the strict sense is appropriate to attack the decis
ions that deny rise to the appeal. Likewise, the bill of review is the appropria
te action in case of order denegatório resource extraordinary or special. Denial
of embargoes and embargoes infringers of invalidity: it is violation of the rul
es. Procedure. The letter Testimony must be requested within forty-eight hours a
fter becoming aware of the order denying the appeal or the decision to prevent h
is prosecution. Formed the instrument in case of appeal in the strict sense, the
 applicant will be notified to give its reasons within a period of two days, and
then the defendant will be summoned to offer their counter-arguments, within th
e same period, enabling If, after the court to withdraw by the court which denie
d the appeal. 13. Eyre PARTIAL Concept. Providence aministrativo-judicial orders
against the judge that may result in reversal of the tumultuous process, where
there are no specific resource provided by law. Legal nature. For much of the do
ctrine's appeal. For another, it's simple administrative measure. Object. Correc
t the error by the judge on procedural act, causing tumultuous reversal of the p
rocess (error in proceeding). Not for the eyre error when attempting to challeng
e in judicando, or when its object relate to that decision involves matters of s
ubstance. 14. Reverse or annul Concept.€Appeal against decision not unanimously
opposing the second instance, since favorable to the defendant. It's unique defe
nse. Term. Ten days.
Belong. Can only be opposed in the case of an appeal in the strict sense and app
eal. Not fit in the criminal review, nor in judging the application of forum non
conveniens, since these are not resources. Does not fit into the seat of habeas
corpus. Admittedly, no place where the letter Testimony against denial of appea
l in the strict sense. There may be brought by the accused without the assistanc
e of counsel. The embargoes are invalid reverse or annul, when the issue is stri
ctly procedural, deciding whether or not the process will be aborted. ON PBS: fi
t reverse or annul the Supreme Court's decision is not unanimous or the Plenary
of the Class to: uphold the prosecution, dismissed the judicial review, is unfav
orable to the defendant on appeal in ordinary criminal. THE STJ: no. 15. DECLARA
TION OF EMBARGO Concept. Appeal to the same organ prolator the decision, within
two days, in case of ambiguity, obscurity, contradiction or omission of the sent
ence. Law 9099/95 replaced the term ambiguity in doubt. Term. Two days before Ju
dge prolator the decision or, if the courts enderaçados the rapporteur himself a
bove the embargoed. In the case of JEC's, the period for bringing the embargo wi
ll be five days. Infringing effect: Currently, case law, mostly (including FTS),
considers it possible to give effect to the amendment motion for clarification.
In this case, it becomes essential, in keeping with the adversarial principle,
order the opposing party, to enable you to contradict the objector. 16. REVIEW C
RIMINAL Concept. Penalty originally sought rescission action before the competen
t court, that, in cases expressly provided by law, be made for the review of a c
ase already terminated by final judicial decision. Legitimacy. The review could
be requested by the defendant or through legally authorized representation by an
attorney (lawyer OAB in no need of special powers). Understand the Supreme Cour
t that the defendant has the capacity to formulate in his own name application f
or judicial review pursuant to art. 623 of the CPP, which was not repealed by ar
t. 1, I of L. 8,906, of 04/07/1994 (Statute Law). In case of death of defendant,
the review may be filed by your spouse, descendant, parent or sibling.
It is understood that the MP is not a legitimate party to apply for judicial rev
iew. May bring habeas corpus. In case of death of the defendant after the revisi
on, the President of the Court authority must appoint trustee to continue the ac
tion. It is about to substitute procedure which dispenses with the initiative of
relatives of the defendant. Term. After res judicata, at any time. Belong. Acco
rding to prevailing understanding, the assumptions listed on the relevancy of th
e CPP are exhaustive judicial review. They are: a) when the sentence is contrary
to the express text of the law. The criminal review is inappropriate means for
the implementation of subsequent law that fail to consider this as a crime (abol
itio criminis), since the competence of execution is the judge of first instance
, avoiding to be deleted one level of jurisdiction (docket 611 FTS). b) when the
sentence is contrary to the evidence in the file. c) when the sentence was base
d on evidence demonstrably false. d) when new evidence of innocence of the conde
mned. e) when new evidence of circumstances that allow a reduction of sentence.
Gist of STF 393: "to require judicial review, the offender is obliged to retire
to the prison." NB In case of revision criminal conviction against manifestly co
ntrary to the evidence before the Court, delivered by the jury, the court must j
udge the merit directly, acquitting the petitioner, if any. Of no use to simply
set aside the jury and refer the accused to a retrial because, maintained by the
new sentencing jury, the problem persists without the revision could fix it. Th
erefore, since the principle of sovereignty of verdicts is not absolute and the
prevalence of the principles of full defense of due process (incompatible with a
bsurd sentences) and the real truth, the judgments should be delivered rescinden
te and severance. Admissibility. Besides the cases of convictions, it is crimina
l review of judgments of acquittal inappropriate where there is imposition of a
security measure. However, it is not the indictment. Of foreign criminal sentenc
e does not fit criminal review, because when his approval by the Supreme Court,
this does not enter the merits,€merely verify the purely formal (foretaste). The
decision of the review may acquit the accused, reduce the sentence or cancel th
e process. Effects of acquittal - restores all rights lost because of the convic
tion. In the case of improper acquittal, the court shall impose a security measu
re.
Note against the order dismissing outright criminal review, it is wrong. 17. Hab
eas Corpus Definition. Legal-constitutional remedy that is intended to prevent o
r stop the violence or coercion to freedom of movement due to illegality or abus
e of power. Species. Liberating or repressive and preventive. Legitimacy active.
Can be filed by anyone, regardless of qualification or representation of legal
counsel (waived the formality of attorney). Consider, however, that "although th
e defendant has the capacity to make application for habeas corpus, not to recog
nize him postulatória ability to prosecute action complaint (RISTF, art. 156) fo
r maintaining the authority of the decision granting of habeas corpus would not
be being met by the court appointed constraining party, since this is private ac
tivity as a lawyer "(STF). Admissibility. It is unacceptable to the petition of
habeas corpus during the siege. The prohibition is directed only against the sub
stance of the decision of executing the measure, the remedy may be filed if the
coercion has the authority wielded by incompetent, or in disagreement with the l
egal formalities. Does not fit the transgression against military discipline. It
is not up against a fine of dosimetry, since this can no longer be converted in
to a custodial penalty. Belong. a) Cause. b) when someone is arrested for longer
than the law requires. The process of the convicted defendant should be termina
ted within the period of eighty-one days. The case law has held that this period
is only counted until the close of the prosecution, without causing excessive d
elay if the process is already at the stage of the arts. 499 and 500 of the CPP.
In the case of crime within the jurisdiction of the jury, pronounced the defend
ant is overcoming the constraints allegation of illegal arrest for excessive del
ay in Education (docket 21 STJ). Similarly, the prosecution is closed overcome t
he claim of unlawful restraint for excessive period (summary of 52 STJ). Finally
, embarrassment is not illegal over-time in education caused by the defense (doc
ket 64 STJ). c) when those sort coercion has no jurisdiction to do so. d) when t
he reason has ceased authorizing coercion. e) when not admitted to bail in cases
where the law provides. f) when the process is clearly void. g) is already exti
nct when the criminality of the agent. Resources. Appeal lies in the strict sens
e of the decision to grant or deny the writ of habeas corpus. It's official appe
al was granted.
When not at stake the freedom of movement, it is reasonable for a writ of mandam
us in criminal cases, the MP is entitled to filing. However, there is no injunct
ion against a court decision with res judicata. Competency Framework for HC: com
petency assessment for habeas corpus filed against decisions of criminal justice
policy (federal or state) Supreme Court when the constraining party is a superi
or court, when the constraining party or the patient is subject to the jurisdict
ion of the STF (Federal Constitution, Art. 102, I, i) STJ TRF's and TJ's
constraining party: TRF or TJ; constraining party: Federal Judge patient: state
governor, judges, TCE, justices of the TRF, the MPU attorney with expertise in c
ourt (Federal Constitution, Art. 105, I, c)
Even after the advent of Constitutional Amendment 22/99, remains intact the orig
inal jurisdiction of Supreme Court judge to process and habeas corpus filed agai
nst the decision issued by the Class Appeals linked to the system of Special Cou
rts. Precedents. 18. EXTRAORDINARY RESOURCE There are no major differences to th
e extraordinary appeal in civil cases. See, however, that the deadline for the f
iling of bill of review against a decision that denies the extraordinary appeal
or proceed with the Special criminal matters, is five days, not ten days. Articl
e 102. The Supreme Federal Court, mainly, for safeguarding the Constitution, it
shall: ... III - judging by the extraordinary appeal, cases decided in a sole or
last instance, when the contested decision: a) contrary to a provision of this
Constitution, b) declare the unconstitutionality of a treaty or federal law, c)
considers valid a law or act of local government contested under this Constituti
on. 19. SPECIAL FEATURE Section 105. It is for the Superior Court of Justice: ..
. III - judge, on special appeal, cases decided in a sole or last instance,€by t
he Federal Regional Courts or by the courts of the States, the Federal District
and Territories, when the contested decision: a) contrary to a treaty or federal
law or denies the effectiveness, b) considers valid a law or act of local gover
nment in the face of disputed law federal;
c) a federal law an interpretation different from that attributed to him there i
s another court. 20. CONSTITUTIONAL APPEAL ORDINARY 20.1. THE STF Article 102 -
The Supreme Federal Court, mainly, for safeguarding the Constitution, it shall:
II - judge ordinary appeal: a) habeas corpus, the writ of mandamus, habeas data
and writs of injunction decided in one instance by the Superior Courts, if the d
ecision denies b) the political crime. The jurisdiction in the case of political
crime, however, it extends to the processing and trial of other resources (inte
rlocutory) made in the processes of political crimes. Thus, against the decision
by Federal Judges of first instance it will be the feature relevant to the STF.
20.2. THE STJ Article 105 - It is the Superior Court of Justice: II - judge ord
inary appeal: a) habeas corpus decided in a sole or last instance by the Federal
Regional Courts or by the courts of the States, the Federal District and Territ
ories, when the decision denies b) writs of mandamus decided in a sole instance
by the Federal Regional Courts or by the courts of the States, the Federal Distr
ict and Territories, when the decision denies c) cases in which the parties are
foreign state or an international organization of one hand and on the other muni
cipality or a person resident or domiciled in Brazil;