Motion filed to dismiss murder indictment

13-year-old accused of killing 2-year-old half brother

Published On: Aug 30 2012 05:17:25 PM EDT   Updated On: Aug 30 2012 10:48:35 AM EDT
JACKSONVILLE, Fla. -

A new motion has been filed to dismiss the murder indictment against 13-year-old murder suspect Cristian Fernandez.

Florida criminal law calls for either the death penalty or life in prison for people who plead guilty or are convicted of first-degree murder. But earlier this year, the U.S. Supreme Court struck down both those punishments were unconstitutional for juveniles.

Since the indictment now "fails to provide notice of potential punishments or sentences that may be imposed" on a juvenile defendant, Fernandez's lawyers argue the indictment violates his due process and should be dismissed, according to the motion.

DOCUMENT: Motion to dismiss murder indictment of Cristian Fernandez

Channel 4 legal expert and defense attorney Gene Nichols said the new motion to dismiss is a good strategy.

"I think it’s a well-reasoned motion," Nichols said. "As we know, the Supreme Court came out a couple months ago and said that a juvenile cannot be convicted to life imprisonment. We already knew a juvenile could not be convicted to death."

Channel 4 crime analyst Ken Jefferson said that it's possible Fernandez does not completely understand what's going on.

"In my experience in dealing with young juveniles, you know Cristian Fernandez appears to be somewhat displaced mentally, and what I mean by that is, he doesn’t appear to know what’s going on," Jefferson said.

At a status conference Thursday, the judge set Sept. 28 for a hearing on the motion to dismiss, and another defense motion to be granted access to the pre-sentencing investigation report on Biannela Susana, Fernandez's mother.

Fernandez is accusing in the beating death of his 2-year-old half brother, David Galarriago, and of sexually abusing a 5-year-old half brother.

Susana pleaded guilty to manslaughter in the death of her son and will be a witness against Fernandez.