JACKSONVILLE, Fla. – With a motion to dismiss the murder charge against a 13-year-old boy still pending, a judge tentatively set his trial for March 4.
Last month, lawyers for Cristian Fernandez asked Judge Mallory Cooper to throw out the first-degree murder charge because Florida sentencing guidelines require anyone convicted of that crime to face either the death penalty or life in prison without parole. The U.S. Supreme Court ruled this summer that it's unconstitutional for juvenile offenders to get mandatory life sentences.
Prosecutors say that the old Florida law that called for a 25-year-to-life sentence could apply, but defense attorneys say Fernandez should not be tried under the current law because they can't advise their client what kind of sentence he could face.
Fernandez was 12 when he was arrested in March 2011 and charged with killing his 2-year-old half brother. Fernandez also faces a sexual abuse charge involving an attack on a 5-year-old half brother.
Last month, Judge Cooper threw out the statements Fernandez gave to Jacksonville police in both the murder and sexual battery cases, ruling a boy that age without parent or legal counsel could not understand his Miranda rights and he did not understand the consequences when he waived them.
While charged as an adult, Fernandez is being kept at the juvenile detention facility.
"I think it's ridiculous," Alicia Torres, an advocate for Fernandez, said Monday on how long the court process is taking. "I'm upset to see that he's going to have to be in juvenile for the holidays, and it's just dragging on too long. He'll be 14 in January. It makes me mad. I'm really mad right now."
Torres has been advocating for Fernandez since he was arrested because his mother is in jail as well. The sentencing hearing for Fernandez' mother, Biannela Susana, has been pushed back to Jan. 8. She has pleaded guilty to aggravated manslaughter in the death of her youngest son and faces 13-30 years in prison.
Torres is in favor of the defense's petition to get rid of the first-degree murder charges against the boy.
"I'm sure for anybody who's in custody and jail this is a long drawn-out process, but the court is being very deliberate about it and moving very carefully," Channel 4 legal analyst and attorney Ed Birk said.
He said the judge has a big decision to make, and if she dismisses the case, it doesn't mean Fernandez will get off Cristian gets off scot-free.
"The state would have the option perhaps to re-indict under a different charge," Birk said. "So instead of first-degree murder, it might be second-degree murder, which carries a different, lesser penalty."
As the boy's fate remains in the hands of the judge, Torres hopes she makes what she calls the right choice."Dismiss the whole case and let him go to a loving home and let him go be a normal kid," she said.
