Sexual assault charge dropped against Cristian Fernandez

Published On: Nov 08 2012 12:11:47 PM EST
Updated On: Nov 08 2012 04:45:13 PM EST
Cristian Fernandez talks to his lawyer - Sept. 28

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

JACKSONVILLE, Fla. -

Prosecutors have decided to drop the sexual assault charge against 13-year-old Cristian Fernandez in the alleged incident involving his 5-year-old half brother, but still faces a murder charged in the death of younger sibling.

Judge Mallory Cooper had previously thrown out all of Fernandez' statements to police in the case.

That, combined with conflicting statements by the half brother and the lack of physical evidence led prosecutors to drop the charge.

DOCUMENT: Disposition on sexual assault charge

Attorney Gene Nichols, who's not connected to the case, said the judge's decision to throw out the boy's statements didn't leave the state with much more than the conflicting evidence of the young victim to go on.

"It appeared that all the state attorney's office had were these conflicting statements to prosecute Cristian, and that was not going to be enough to prosecute Cristian," Nichols said.

Cooper threw out Fernandez's statements because she found he hadn't fully understood his rights or what he was doing when he waived them. Without any physical evidence, it didn't leave the state with many options other than to dismiss.

Fernandez is still facing a murder charge in the death of his 2-year-old half brother. That trial is now scheduled for March 4.

Nichols said the murder case against Fernandez is still viable.

"There is presumably physical evidence that will establish someone committed a crime, or else I wouldn't think we would be where we are right now," Nichols said.

The question remains, however, how Fernandez will face that charge: as an adult or as a minor.

No decision was made at a court hearing last month on a motion to dismiss the murder charge against Fernandez.

Lawyers for the boy have asked 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.

Nichols said that when it comes to the case against the boy, one charge will be easier for the defense to fight than two.

"He still has incredibly serious charges that are pending with the murder charges, so he still has a long road left, but at least we know a big chunk of the road has been taken away," Nichols said.

The sentencing hearing for Fernandez's 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.

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