QUESTÃO ERRADA: O Estado exerce sua pretensão punitiva a partir do ingresso da ação penal, garantindo-se ao acusado o devido e justo processo legal. Acerca do processo penal, julgue o item a seguir. Em se tratando de contravenção penal punida com pena de multa, admite-se subsidiariamente, em caso de inércia do Ministério Público, a ação penal sem demanda.
“A partir da CF/1988, não se admite ação penal sem demanda (ação penal de ofício ou jurisdição sem ação), quando, antes, o delegado de Polícia ou o juiz, em caso de contravenção penal, homicídio culposo ou lesão corporal culposa, admitia a deflagração da ação por meio de portaria ou auto de prisão em flagrante. A partir da CF/1988, para essas Infrações penais a legitimidade passou a ser do MP.”
CRIMES X CONTRAVENÇÕES
1. Diferença de penas: os crimes têm pena de reclusão ou detenção isoladamente ou combinada com a multa; já as contravenções penais, penas de prisão simples ou de multa isoladamente ou as duas combinadas, conforme o disposto no art. 1.º da Lei 3.914/1941.
2. Ação penal: os crimes podem ser de ação penal de iniciativa pública (condicionada ou incondicionada) ou de ação penal privada; já as contravenções penais são sempre de ação penal pública incondicionada, conforme o art. 17 da LCP.
3. Punibilidade da tentativa: os crimes têm tentativa punível prevista no art. 14, II e parágrafo único; já nas contravenções penais não há punibilidade da tentativa – art. 4.º da LCP.
4. Extraterritorialidade da lei: crime admite hipóteses de extraterritorialidade – art. 7.º do CP. As contravenções penais não admitem extraterritorialidade – art. 2.º da LCP.
5. Competência para processo e julgamento – o art. 109, IV, da CRFB, exclui expressamente as contravenções penais da competência da Justiça Federal, portanto crimes podem ser de competência das justiças estadual ou federal, já as contravenções serão sempre processadas e julgadas na justiça estadual. A única hipótese de as contravenções penais serem julgadas pela justiça federal é nos casos de foro por prerrogativa de função em órgão federal.
6. Limites das penas – para os crimes o art. 75 do CP fixa o limite de execução de 30 anos. Para as contravenções penais o limite é de cinco anos de prisão simples, conforme dispõe o art. 10 da LCP.
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