Donald Smith's lawyer asks judge to throw out death penalty

Smith among accused killers awaiting trial to file death sentance motions

JACKSONVILLE, Fla. – Donald Smith, the accused killer of 8-year-old Cherish Perrywinkle, was back in court Tuesday morning as his lawyers asked the judge to take the death sentence off the table. 

This comes after the Supreme Court ruled that Florida's death penalty law is unconstitutional.

In response, the State Attorney's Office wrote that the Supreme Court did not abolish the death penalty in Florida, "only declared unconstitutional on narrow grounds." and the judge has the ability to remedy any constitutional infirmity within the parameters of the current law. [Read State Attorney's Office response]

Judge Mallory Cooper decided to delay a decision on the defense motion until March 1 while the Florida Legislature revises the death penalty law.

There are at least four pending first-degree murder cases where defense lawyers are trying to use the Supreme Court's ruling to remove capital punishment from the potential options for their clients. 

"You can expect any defense lawyer who is defending a case such as Donald Smith's case is going to do everything they can to push the case to a resolution or conclusion now while there's no statute on the books,' said attorney Gene Nichols, who is not affiliated with the Smith case.

Lawmakers are at work in Tallahassee trying to fix the specific issue that caused the high court to strike down Florida's law: that while the jury makes a recommendation for the imposition of a death sentence, it is left to a judge's discretion, and whether any changes will be retroactive to the 300 plus inmates sitting on death row right now.

Nichols if that happened, it could be traumatizing for families who think they've already gained justice.

"I hate it for all of those families to have to address that over and over again," Nichols said. "Obviously the new cases, unfortunately still living it but it's a family has to go back through this in a decades old case and to find out not only that the individual is not going to see the death sentence when that was what they had been told it's a tremendous impact on the state."

One of the pending murder trials where defense has filed to block prosecutors from seeking the death penalty is that of James Rhodes, who is accused of killing Shelby Farah during a robbery of a MetroPCS store on Main Street in 2013.

Farah’s mother, Darlene Farah, is trying to convince prosecutors to let Rhodes plead guilty and be sentenced to life in prison. She wants the case to be over, and not have it linger thru years of appeals, yet the State Attorneys Office continues to press for the it to be a capital murder case.

Smith trial scheduled for April

In Smith's hearing Tuesday, a second defense motion requesting that Smith's trial be moved out of Jacksonville due to pre-trial publicity was not discussed. 

Smith is tentatively set to go on trial in April on charges of kidnapping, rape and murder. He was a supervised sex offender when he befriended Cherish's mother, Rayne Perrywinkle, in June 2013 while shopping on the Westside.

Police were told Smith offered to buy some clothes for the family and took them to a Walmart. He was seen on surveillance video leaving the Walmart with Cherish.

Smith was stopped by police the next morning in his van and arrested. Within minutes, Cherish's body was found in a tidal creek of the Trout River behind Highlands Baptist Church.

Rayne Perrywinkle was at Tuesday's hearing, along with Dena Thompson, the mother of 7-year-old murder victim Somer Thompson. 



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