Donald Smith indicted, state pursues death penalty

Smith indicted on 1st degree murder, capital sexual battery, kidnapping charges

The State Attorney's office announced Tuesday that it's pursuing the death penalty in the Donald Smith murder case. Smith is accused of kidnapping and killing 8-year-old Cherish Perrywinkle. 

"This is going to be a difficult case in the sense that it is an emotional case, but we still stay focused on our core mission of prosecuting this defendant, Donald Smith," said State Attorney Angela Corey. 

A grand jury indicted the 56-year-old convicted sex offender on charges including first degree murder, capital sexual battery and kidnapping of 8-year-old Cherish Perrywinkle. 

The focus will be on the trial, but Attorney Gene Nichols told Channel 4 both sides will be very strategic in what information is withheld for the penalty phase. 

"There's a tremendous amount of information that comes out in the penalty phase that may not be brought out at trial," said Nichols. "They may not be relevant at trial, may not be considered at trial, but information the jury will hear at a later time."

Nichols said the prosecutors will have to establish and prove, beyond a reasonable doubt, several aggravating circumstances, and one of those will be Cherish's age. The biggest hurdle, Nichols said, will be convincing 12 people that Smith should be put to death. 

"Each one of them will be sitting here knowing that when this is all said and done, if they convict the defendant, they're going to have to answer the question to whether or not he deserves life or death, and that is a difficult process for any human being," said Nichols. 

Nichols anticipates that the trial won't begin until next summer, but he believes the penalty phase will likely take much longer than it has in the past. 

"You can expect the defense is going to present, during a penalty phase, as many witnesses, family members and doctors," Nichols said.

Everyone who receives a death penalty sentence receives a mandatory appeal at the Supreme Court level. Governor Scott recently signed a new bill into law to make sure cases like these move through the appellate process quicker than they have in the past.