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: DIVISION: STATE OF FLORIDA VS. CRISTIAN FERNANDEZ _______________________________________/ MOTION TO DISMISS DEFECTIVE INDICTMENT AND MEMORANDUM IN SUPPORT THEROF COMES NOW DEFENDANT, CRISTIAN FERNANDEZ, by and through his undersigned attorney, the Public Defender of the Fourth Judicial Circuit, and respectfully moves this Honorable Court for the entry of an order dismissing the charges filed against him in this cause in an Indictment filed on June 2, 2011 pursuant to Rule 3.190(b) and (c), Fla. R. Crim. P. Because such motion is based on fundamental grounds, this Court may dismiss such indictment at any time. The facts and law upon which this motion is based are the following: I. FACTS 16-2011-CF-006222 CR-D

Defendant is a twelve-year old boy who has been charged with one count of first-degree murder and one count of aggravated child abuse pursuant to an Indictment filed on June 2, 2011. Count One of the Indictment alleges Defendant committed Aggravated Child Abuse and then and there kill the said David Galarriago, a human being, by inflicting blunt force trauma upon said victim, thereby inflicting upon the said David Galarriago certain mortal wounds from which he did thereafter continually languish and languishing, did live until March 16, 2011 on which date he died from said mortal wounds, contrary to the provisions of Section(s) 782.04(1)(a),

Florida Statutes.

Count Two charges Defendant with Aggravated Child Abuse, alleging

Defendant, on March 14, 2011, committed an Aggravated Battery upon David Galarriago, contrary to the provisions of Section 827.03(2), Florida Statutes. II. A. LAW

A motion to dismiss is proper because the facts as alleged in the Indictment do not establish prima facie cases of felony murder and aggravated battery.

The Supreme Court of Florida has long recognized that defective indictments can be raised at any point of the prosecution of the case. Generally, if an indictment or information fails to completely charge a crime under the laws of the state, the defect can be raised at any time, Deparvine v. State, 995 So. 2d 351 (Fla. 2008); Gray v. State, 435 So. 2d 816 (Fla. 1983)(If the charging instrument completely fails to charge a crime, therefore, a conviction thereon violates due process. Where an indictment or information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state. Since a conviction cannot rest upon such an indictment or information, the complete failure of an accusatory instrument to charge a crime is a defect that can be raised at any time before trial, after trial, on appeal, or by habeas corpus.). The June 2, 2011 indictment is defective because it fails to allege felony murder and aggravated child abuse pursuant to current Florida law and the June 2, 2011 Indictment should, therefore, be dismissed as a matter of law. B. The felony murder charged should be dismissed because the alleged aggravated child abuse merged with the homicide and, thus, no underlying felony exists.

The Indictment charges Defendant with first-degree murder under 782.04(1)(a). This statute section provides two different means to establish first-degree murder, premeditation and felony murder. To establish felony murder, under part 2 of the statute section, the State must prove the unlawful killing of a human being was committed when a person was engaged in one

of the enumerated felonies outlined in the statute.1 The Indictment alleges the underlying felony of Aggravated Child Abuse, which is one of the enumerated felonies under part 2 of the statute. However, the facts as alleged do not establish a prima facie case pursuant to part 2 of this statute. Because the alleged underlying felony of aggravated child abuse does not constitute a separate offense, part 2 of the statute does not apply and, thus, Count I. of the Indictment should be dismissed. The felony murder merger doctrine as it applies to the predicate crime of aggravated child abuse pursuant to 782.04(1)(a)2.h is a legal quagmire and the issue is currently pending before the Florida Supreme Court in State v. Sturdivant, 35 F.L.W. D1993(Fla. 1st DCA, Sept. 7, 2010) rev. granted State v. Sturdivant, 47 So. 3d 1290 (Fla. 2010). Oral arguments were heard October 3, 20112 and a decision is pending. Additionally, the Florida Supreme Court has granted discretionary review of another case involving the application of the merger doctrine with aggravated child abuse as the predicate felony in Lewis v. State, 34 So. 3d 183 (Fla. 1st DCA 2010). However, the court has stayed the proceedings in Lewis pending the outcome of the Sturdivant case. As such, the law as it stands currently in the First District holds felony murder cannot be established when the predicate offense of aggravated child abuse merges with the homicide. Therefore, in Defendants case, because the murder charge and the underlying charge are all part and parcel of each other, part 2. of 782.04(1)(a) is not triggered and the Indictment should be dismissed.
This is Floridas codification of the felony murder rule. However, Florida extends the doctrine only to those felonies specifically enumerated. 2 Although the Sturdivant case is under appeal, the ruling of the First District Court of Appeal is now controlling, based on the concept of stare decisis See Bunn v. Bunn, 311 So. 2d 387 (Fla. 4th DCA 1975)(the views and opinions of an appellate court on issues which are properly raised and decided in disposing of the case are, unless reversed or modified by a higher court, binding on the lower court as the law of the case.); Frost v. State, 53 So. 3d 1119 (Fla. 4th DCA 2011)(Because the district courts of appeal in Florida are intended to be courts of final appellate jurisdiction, the opinion of a district court is binding on all trial courts in the state. If there is unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district.)

The Lewis court, supra, provided an informative account of the felony murder-merger doctrine, which places it in historical and jurisprudential context. The Lewis court explained that the felony murder rule relieved the prosecution of the burden to prove the requisite mens rea in order to convict for first-degree murder, citing Wayne R. LaFave, Substantive Criminal Law, 14.5 (2d ed. 2003). To temper the potential harsh effects of the doctrine, the courts have limited its scope pursuant to the merger doctrine. Id. at 184. The Lewis court cited People v. Ireland, 450 P. 2d 580 (Cal. 1969), to explain the doctrine: a felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged. Id. at 590. The merger doctrine thus ensured the various degrees of murder, manslaughter, and other homicides remain intact because without the merger doctrine felonious assaults that result in death would be bootstrapped up to first-degree murder regardless of whether the requisite mens rea existed. Id. at 185. The harshness of felony murder is especially highlighted in

Defendants case wherein it is questionable whether the State could prove that Defendant, a 12year-old boy, could possibly form the requisite mens rea to commit murder, in any of its other classifications. The Sturdivant case, which is currently pending before the Florida Supreme Court, reversed a first-degree murder conviction that was based on the underlying felony of aggravated child abuse because of the merger doctrine. In Sturdivant, it was alleged the defendant (an adult) slapped the two-year-old victim, who was standing on a coffee table, on the back of the head with such force that the victim fell . . . hitting his head on the concrete wall and thereafter died. The court, citing Brooks v. State, 918 So. 2d 181 (Fla. 2005), noted the merger doctrine was a

common-law limitation on the crime of felony murder and then certified a question to be of great public importance to the Florida Supreme Court. For clarification of this legal reasoning, it is helpful to review Brooks v. State, 918 So. 2d 181 (Fla. 2005). In Brooks, the defendant was convicted of aggravated child abuse and firstdegree murder for the deaths of a woman and her three-month-old child. Id. On appeal to the Florida Supreme Court, the defendant successfully argued (among other things) that the act of stabbing the baby could not constitute both the aggravated child abuse charge and the firstdegree felony murder charge. Id. The Supreme Court held, rather, that the underlying aggravated child abuse charge merged into the infants homicide and could not be the basis for a felonymurder charge. The Court differentiated Mapps v. State, 520 So. 2d 92 (Fla. 4th DCA 1988) in which the court upheld the felony-murder conviction based on an underlying aggravated child abuse charge when there were multiple incidents of child abuse (throwing, shaking, striking a ten-month old). In the instant case, however, the homicide resulted from one alleged incident and any alleged underlying felony would have thus merged into the homicide. Therefore, the alleged facts do not support a separate crime as outlined in 782.04(1)(a)2. Consequently,

because the Indictment does not allege facts that would support the charge of first-degree murder under the theory of felony murder, Count I of the Indictment should be dismissed as a matter of law.3 C. The second count of the Indictment should be dismissed because the alleged aggravated battery merged with the homicide.

The undersigned acknowledges the disparity in holdings on the merger issue. Courts have reconciled Brooks and Lewis by distinguishing between a single act that merged with the homicide and multiple acts which still allow for a predicate felony. See Kennedy v. State, 59 So. 3d 376 (Fla. 4th DCA 2011) and Rosa v. State, 58 So. 3d 900 (Fla. 2d DCA 2011). However, it must be noted the First District Court of Appeals decision in Sturdivant currently is binding on this court. Moreover, because the alleged aggravated battery in this case occurred in one alleged criminal episode and any alleged acts were not separated by time and space, a separate predicate felony does not exist. See Eaddy v. State, 789 So. 2d 1093 (Fla. 4th DCA 2001); Binns v. State, 979 So. 2d 439 (Fla. 4th DCA 2008).

Following the same logic, the Second Count of the Indictment should be dismissed since the alleged underlying aggravated child abuse merged with the homicide in this case. In the Second Count, the State charged Defendant with aggravated child abuse in violation of 827.03(2) because he allegedly committed an aggravated battery as outlined in subsection (a). Because the aggravated battery/aggravated child abuse then merged into the homicide, it no longer exists in and of itself. Indeed, the Sturdivant court recognized the merger of the underlying charge into the homicide, and quoted Brooks, which relied on Mills v. State, 476 So. 2d 172 (Fla. 1985):

Mills clearly bars a conviction of aggravated battery where a single act of aggravated battery also causes a homicide. This determination is based on the fact that the aggravated battery has merged into the homicide. Likewise, had Brooks been charged with aggravated child abuse, he could not have been convicted of that crime. That is because aggravated child abuse is an aggravated battery, the only difference being that the victim is a child. . . . In light of the fact that Brooks delivered a single stabbing blow that resulted in [the child's] death, the act constituting the aggravated child abuse merged into the infant's homicide. This is exactly the situation in this case. As long as the State submits that the actions that constituted the alleged aggravated child abuse then resulted in a homicide, the State cannot charge Defendant with both offenses. Indictment should be dismissed. Therefore, the Second Count of the June 2, 2011



Although the Sturdivant case is currently pending before the Florida Supreme Court on the issue of the application of the merger doctrine when the predicate felony is aggravated child abuse, this court is bound by the First District Court of Appeals holding in that case. The law as it currently stands clearly restricts the application of felony murder in cases in which aggravated child abuse merges with the homicide. Because such is the basis for the felony murder charge in

this case, the June 2, 2011 Indictment is defective and such charge should be dismissed. Similarly, because the alleged aggravated battery merged with the homicide, Count II of the Indictment is defective and should be dismissed. WHEREFORE, for all the foregoing reasons, the undersigned respectfully requests this Honorable Court enter an order dismissing the felony murder and aggravated battery charges in the defective June 2, 2011 Indictment against Defendant in this case. I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by hand delivery to the Office of the State Attorney, this ______ day of December, 2011.

Respectfully submitted, MATT SHIRK PUBLIC DEFENDER

BY:__________________________ MATT SHIRK, #0195911 Public Defender ELIZABETH HOGAN WEBB Fla. Bar No.: 0853089 Assistant Public Defender