No ruling yet in motion to dismiss murder case against 13-year-old Cristian Fernandez

13-year-old boy still faces murder charge in 2-year-old half brother's death

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

JACKSONVILLE, Fla. - The wait continues for 13-year-old Cristian Fernandez after Judge Mallory Cooper delayed her decision on a motion to dismiss the murder charges against him.

Fernandez waived his right to appear at a Thursday morning status hearing where the judge did grant the defense's motion to re-depose the police officer who originally arrived on scene where Fernandez's 2-year-old half brother was found dead.

"There was a motion for us to take the deposition of a witness the public defender's office had already taken. We asked for the opportunity to ask more questions that weren't asked the first time," said Hank Coxe, Fernandez's defense attorney.

During the hearing, a former middle school classmate of Fernandez sat in the audience.

Anthony Villaluz said he was there "to support Cristian because I know if I was in the same situation, I would want people to stand up for me."

"It's frustrating. I just hope (Cooper) dismisses (the murder case). I really hope he can have his first real good holiday in a good home with good people," said Villaluz's mother, Alicia Torres, who has supported Fernandez since the case began.

Last month, a sexual battery charge against Fernandez was dismissed.

DOCUMENT: Disposition on sexual assault charge

Cooper had previously thrown out all of Fernandez's statements to police, agreeing with the defense that the boy hadn't fully understood his rights or what he was doing when he waived them.

Fernandez was 12 when he was arrested in March 2011 and charged with murder.

Cooper is expected to rule on the motion to dismiss the murder charges as early as next week.

Defense lawyers claim the first-degree murder case cannot proceed because Florida sentencing guidelines require anyone convicted of that crime to face either the death penalty or life in prison without parole, but 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's tentative trial date in the murder case is set for March 4.

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