JACKSONVILLE, Fla. – Lawyers for Donald Smith in the 2013 kidnapping, rape and murder of 8-year-old Cherish Perrywinkle, have filed a motion to suppress 74 hours of recorded jailhouse conversations between Smith and an inmate who was awaiting retrial for murder.
Smith's lawyers claim the recordings with death row inmate Randall Deviney were obtained unlawfully, without a warrant.
Smith signed a form the day after his arrest saying he would not speak to police and his lawyers said Deviney was acting an agent of the police, and as such should have read him his rights.
The motion claims the recordings are violations of Smith's constitutional rights under the 4th, 5th, 6th and 14th Amendments.
DOCUMENT:Donald Smith's motion to suppress
Deviney was convicted and sentenced to death for killing Delores Futrell in 2008. The Florida Supreme Court threw out that conviction and death sentence in 2014, saying Deviney's confession was coerced by police after he had invoked his right to remain silent.
While he awaited retrial, Deviney sent a handwritten letter to the state attorney's office implicating Smith in another case.
Deviney did not give specifics of the case, but he did lay out what he wanted in return.
"I'm asking the state to let me plea to a mandatory 23-year sentencing, since 23 years is what the Florida sentencing guidelines score me out to," wrote Deviney. "If the things I tell them don't get a conviction on Smith, then the state owes me nothing, and the plea agreement is void."
The state attorney's office has said they think Deviney was lying about another case to benefit himself.
"The State’s position in the Deviney case has not changed," state attorney spokesperson Jackelyn Barnard said last year in a written statement to News4Jax. "As previously stated in court, the State has no interest in talking with the Defendant about information on another case and the State believes the Defendant is perpetuating a fraud on the Court."
Deviney has since been reconnected and resentenced to death. Smith's trial date has not been set.