JACKSONVILLE, Fla. – A judge denied a defense motion Tuesday to block the state from seeking the death penalty against Donald Smith, the man accused in the kidnap, rape and murder of 8-year-old Cherish Perrywinkle in 2013.
One day after Gov. Rick Scott signed the Legislature's revision of Florida's death penalty law, Smith's trial was pushed back to September.
The U.S. Supreme Court declared Florida's capital punishment law unconstitutional late last year because it gave too much authority to the judge on when a convict should be sentenced to death. The new law requires a jury to vote at least 10-2 for someone to receive a death sentence.
Smith's trial was set to begin next month, but because the state is seeking the death sentence, Smith's lawyers, who had asked for Smith to be tried without facing the death penalty, said they needed more time to study the new law.
"Based on the new statute that was passed last week, obviously we will need time in which to analyze that (and) file appropriate motions," Smith's attorney, Julie Schlax, said. “The investigation of mitigation is ongoing, as well.”
Smith was not in the courtroom Tuesday.
Cherish’s mother, Rayne Perrywinkle, who attended the hearing, said her lawyer has advised her not to comment, but added, "After the trial, I’ll talk."
Rhonda Peoples-Waters, an attorney not affiliated with the trial, said the ruling has a broad effect because a Florida jury can no longer recommend the death penalty with a simple majority vote.
“What it’s definitely going to require is the state to make sure that they choose cases that they want to proceed on the death penalty even more wisely, because the stakes are higher,” Peoples-Waters said. “They’re not going to be able to get a death penalty verdict with just a majority verdict. It’s now going to need to be 10 to 2.”
The new law could still face challenges, because critics argue that while a 10-2 vote is an improvement over Florida’s old system, it still doesn’t require a unanimous vote by the jury.
Florida is one of only three states that does not require a unanimous jury vote for a death penalty sentence. The others are Alabama and Delaware.
The Florida Supreme Court must also decide what will happen to the nearly 400 prisoners currently on death row in Florida who were sentenced under the old law.