Smith's attorney appeals to be removed from case

Judge denied request last week

JACKSONVILLE, Fla. – The attorney assigned to defend Donald Smith -- the man charged with the kidnap, rape and murder of 8-year-old Cherish Perrywinkle -- has appealed to the First District Court of Appeal to be removed from the case.

Last week, public defender Fred Gazaleh's request to withdraw himself was denied by Judge Mallory Cooper. A pretrial hearing in the case was held Thursday.

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Gazaleh said he has a conflict with the case because of what Smith apparently told another client Gazaleh represents while the two were in jail.

The state has made it clear it doesn't plan to use that client in trial, so Cooper said there's no conflict.

Galazeh argues he has a duty to tell Smith all he knows about the case, but can't without breaching confidence with his other client.

If the appeals court decides to hear the argument, the trial could be delayed.

Smith is scheduled to be back in court Dec. 11. The case is set for jury selection on Jan. 20 and the trial to begin Jan. 26.

Smith befriended Cherish's family and said he was going to buy them cheeseburgers at McDonald's at the front of a Walmart on Lem Turner Road. Smith was seen on surveillance video taking Cherish out of the store, never to return, investigators said.

Gazaleh has represented Smith since he was charged last year.