DINIZ, G. J. B.; http://lattes.cnpq.br/1443345543874380; DINIZ, Giorgio José Barbosa.
Resumen:
There among legal scholars uniformity of understanding about the possibility of a
custodial sentence be set below the legal minimum in the second phase of the
application of the penalty though the Superior Court has issued Pronouncement No.
231, as some scholars positioning themselves against such. This research aims to
elucidate the controversy created around the issue of the said docket that seals the
mitigation of the sentence below the minimum required by the offense in the second
phase of the implementation of the sentence, since the Superior Court judges
standardized the performance of understanding that if accepted the magistrate in the
second phase of the implementation of the penalty fix custodial sentence below the
statutory minimum, it would be invading the field of action of the Legislature creating
sentences, and generate the dangerous precedent of being able to claim that if he
accepted the mitigation for analogy would have to accept that the judge could
stipulate a sentence above the maximum limit. Using logical deductive method
through desk research and literature, we analyze various works of renowned authors
and jurisprudence of various courts Brazilians coming to the conclusion that the
Federal Constitution and the Brazilian Penal Code provide legal foundation for the
custodial sentence can be fixed below the limit provided by the offense in the second
phase of implementation, the existence of the Principles of Legality and Penalty
Individualization, plus there expressly provided in the letter that the criminal should
focus on mitigating always calculating criminal, leaving the only proven regulatory
device that could foreclose the performance shown here is the Precedent No. 231.
Therefore, the present study demonstrates the possibility of fixing the sentence
below the statutory minimum in the second phase of the implementation of the
sentence because there is no legal prohibition and this is the fairest way of acting
magistrates in relation to dosimetry applied to criminal convicted.