Cristian Fernandez hearing delayed 1 week

Published On: Oct 08 2012 09:16:04 AM EDT
Updated On: Oct 08 2012 12:38:39 PM EDT
Cristian Fernandez talks to his lawyer - Sept. 28

Cristian Fernandez talks to his lawyer prior to a Sept. 28 hearing.

JACKSONVILLE, Fla. -

It will be at least another week before a 13-year-old boy will learn if a judge will dismiss the murder charge against him.

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, who was 12 when he was arrested and charged with killing his 2-year-old half brother, was due in court for another hearing Monday, but that was postponed until Oct. 15.

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.

The sentencing hearing for Fernandez' mother, Biannela Susana, has been pushed back again to Jan. 8. She has pleaded guilty to aggravated manslaughter in the death of her 2-year-old son and faces 13-30 years in prison.

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