January 2017 latest trial date for Donald Smith

Man accused in girl's June 2013 kidnapping, rape, murder awaits trial


JACKSONVILLE, Fla. – Donald Smith, accused in the kidnapping, rape and murder of 8-year-old Cherish Perrywinkle in 2013, will stand trial  in January, Circuit Judge Mallory Cooper ruled Thursday morning.

Police said Smith befriended Cherish's mother at a Northside Walmart, took them to a Walmart, then walked out with the girl after saying he was going to buy hamburgers at McDonald's. The girl's body was found the next morning in a creek behind a church.

Jury selection is scheduled to begin on Jan. 17. After setting a fifth trial date, Cooper seemed adamant that she does not want to delay it again.

"She has been very specific that she wants this trial date," said Gene Nichols, an attorney not affiliated with the case. "She is putting off far enough so that hopefully both parties have litigated all issues, that all depositions of been taken in and any issues regarding competency. But also by then we should have some form of resolution as to what is going to happen with the death penalty statute."

The U.S. Supreme Court last year ruled Florida's death penalty law unconstitional. The Legislature passed and Gov. Rick Scott signed a new law to address the deficiencies, but Smith’s lawyers say that new law can’t be applied retroactively to this case. 

Smith’s attorneys on Monday filed a fifth motion to block prosecutors from seeking the death penalty if he is convicted in Cherish’s murder.  The new motion says the State Attorney's Office did not file a notice of intent to seek the death penalty within 45 days of Smith's arraignment, as it is required to do.

Smith's lawyers filed a motion two weeks ago arguing that Florida's death penalty law is unconstitutional.

In March, Smith’s attorneys also filed a motion to suppress 74 hours of recorded jailhouse conversations between Smith and an inmate who was awaiting retrial for murder.

Prosecutors said Thursday that they've been ready for trial since it was originally scheduled in 2014 and Cherish's mother, Rayne Perrywinkle, has been asking for resolution. 

"I think more than anything else (the motions are) going to be an attempt to try to save his life, which is what the defense lawyers are trying to do for him as best as they possibly can," Nichols said.

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