JACKSONVILLE, Fla. -- Cristian Fernandez's defense team made another move Friday to give the 13-year-old accused killer a chance at freedom. Jacksonville's youngest murder suspect is charged with the beating death of his 2-year-old brother.
"We moved to dismiss the first-degree murder indictment," said Defense Attorney Bryan Gowdy.
Here's the reason why. In Florida, a first-degree murder conviction comes with two possible sentences: death or life without the possibility of parole. But this summer, the Supreme Court ruled that to apply those sentences to a suspect under the age of 18 amounts to cruel and unusual punishment.
"Cristian can't know the punishment he's facing because both the punishments that are under statute, one death the other life without parole, have been declared unconstitutional," said Gowdy.
"The remedy of dismissing the first-degree murder charges against this client is not warranted," said Assistant State Attorney Mark Caliel.
The state argued that perhaps a more suitable solution would be to revert to earlier sentencing guidelines, which would be a mandatory minimum of 25 years. However, that option is not listed in the state statute, and would require state lawmakers to weigh in.
Gowdy said, ""Our view is that only the Legislature can fix this."
Judge Mallory Cooper is now considering the defense's motion. The next hearing is set for October 8.
Fernandez has been in custody for a year and a half now. He is also awaiting trial on sexual battery charges. He's accused of sexually abusing a 5-year-old boy. That charge also carries a life sentence.