O Que É Flagrante Presumido? (com exemplos)

Por
Daniel Silva
-
286
9275

CEBRASPE (2013):

QUESTÃO ERRADA: Para caracterizar o flagrante presumido, a perseguição ao autor do fato deve ser feita imediatamente após a ocorrência desse fato, não podendo ser interrompida nem para descanso do perseguidor.

  • Flagrante Próprio -> quando está cometendo ou acaba de comer o crime
  • Flagrante Impróprio -> quando é perseguido pela autoridade
  • Flagrante Presumido -> é encontrado com instrumentos que façam presumir o crime.

Código de Processo Penal:

Art. 302. Considera-se em flagrante delito quem:

I – está cometendo a infração penal;  FLAGRANTE PRÓPRIO

II – acaba de cometê-la; FLAGRANTE PRÓPRIO

III – é perseguido, logo após, pela autoridade, pelo ofendido ou por qualquer (TEM PERSEGUIÇÃO)

pessoa, em situação que faça presumir ser autor da infração;  F. IMPRÓPRIO

IV – é encontrado, logo depois, com instrumentos, armas, objetos ou papéis

que façam presumir ser ele autor da infração. . F. PRESUMIDO (AQUI NÃO TEM PERSEGUIÇÃO)

CENRASPE (2000):

QUESTÃO ERRADA: Zeca e Juca, previamente ajustados, adentraram em uma agência da Caixa Econômica Federal e, mediante ameaça, com o emprego de armas de fogo (revólveres), subtraíram a importância de R$ 20.000,00, que se encontrava no interior do cofre da instituição financeira. Logo depois da ocorrência, os autores da subtração foram encontrados por policiais militares, alguns quarteirões distantes   da agência, em atitude suspeita (carregando sacolas e com armas na cintura), momento em que foram abordados e posteriormente presos. As armas do crime foram apreendidas e parte da res furtiva recuperada. Juca alegou ter menos de dezoito anos de idade. Diante dessa situação hipotética, julgue o item a seguir: Zeca e Juca foram presos em flagrante impróprio ou quase-flagrante.

Negativo. FLAGRANTE FICTO ou PRESUMIDO.

CPP – Art 302:

I – está cometendo a infração penal; (FLAGRANTE PRÓPRIO)

II – acaba de cometê-la; (FLAGRANTE PRÓPRIO)

III – é perseguido, logo após, pela autoridade, pelo ofendido ou por qualquer pessoa, em situação que faça presumir ser autor da infração; (FLAGRANTE IMPRÓPRIO)

IV – é encontrado, logo depois, com instrumentos, armas, objetos ou papéis que façam presumir ser ele autor da infração. (FLAGRANTE PRESUMIDO ou FICTO)

OBS: Flagrante assimilado é sinônimo de Flagrante presumido ou ficto; Quase-flagrante é sinônimo de flagrante impróprio.

CEBRASPE (2019):

QUESTÃO CERTA: Em decorrência de um homicídio doloso praticado com o uso de arma de fogo, policiais rodoviários federais foram comunicados de que o autor do delito se evadira por rodovia federal em um veículo cuja placa e características foram informadas. O veículo foi abordado por policiais rodoviários federais em um ponto de bloqueio montado cerca de 200 km do local do delito e que os policiais acreditavam estar na rota de fuga do homicida. Dada voz de prisão ao condutor do veículo, foi apreendida arma de fogo que estava em sua posse e que, supostamente, tinha sido utilizada no crime. Considerando essa situação hipotética, julgue o seguinte item. De acordo com a classificação doutrinária dominante, a situação configura hipótese de flagrante presumido ou ficto.

Art. 302 (…):

III – é perseguido, logo após, pela autoridade, pelo ofendido ou por qualquer pessoa, em situação que faça presumir ser autor da infração; FLAGRANTE IMPRÓPRIO

IV – é encontrado, logo depois, com instrumentos, armas, objetos ou papéis que façam presumir ser ele autor da infração. FLAGRANTE FICTO OU PRESUMIDO

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Situação narrada:

a) “O veículo foi abordado por policiais rodoviários federais em um ponto de bloqueio montado cerca de 200 km do local do delito e que os policiais acreditavam estar na rota de fuga do homicida”. O veículo foi encontrado, e não perseguido;

b) “Dada voz de prisão ao condutor do veículo, foi apreendida arma de fogo que estava em sua posse e que, supostamente, tinha sido utilizada no crime”. Além do trecho anterior, o enunciado deixa claro que o suspeito portava uma arma.

Como se observa, entra perfeitamente na definição de flagrante presumido ou ficto, encontrada no Código ou em qualquer manual didático.

CEBRASPE (2017):

QUESTÃO CERTA: Por volta das dezessete horas de determinado dia, no interior de um ônibus de transporte coletivo, João subtraiu para si pertences de vários passageiros mediante grave ameaça exercida com o emprego de arma de fogo. Após a ação, João empreendeu fuga levando consigo os bens subtraídos e a arma utilizada. A partir de informações fornecidas por testemunhas, policiais localizaram João às cinco horas da manhã do dia seguinte, data em que ocorreria o segundo turno das eleições para prefeito. João foi preso em flagrante e foram apreendidos parte dos objetos subtraídos encontrados em seu poder. Nessa situação hipotética, a prisão de João foi: legal: houve hipótese de flagrante presumido.

Em se tratando de flagrante é possível a prisão, mesmo em vésperas de eleição, flagrante presumido é uma espécie de flagrante, a lei diz que:

art. 236. Nenhuma autoridade poderá, desde 5 (cinco) dias antes e até 48 (quarenta e oito) horas depois do encerramento da eleição, prender ou deter qualquer eleitor, salvo em flagrante delito ou em virtude de sentença criminal condenatória por crime inafiançável, ou, ainda, por desrespeito a salvo-conduto.

FLAGRANTE PRESUMIDO OU FICTO (ART 302, INCISO IV, CPP) QUANDO É ENCONTRADO, LOGO DEPOIS, COM INSTRUMENTOS, ARMAS, OBJETOS OU PAPEIS QUE FAÇAM PRESUMIR SER ELE O AUTOR DA INFRAÇÃO.

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Daniel Silva
https://cadernodeprova.com.br

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