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;