Donald Smith's motion to block death penalty denied

JACKSONVILLE, Fla. – A new motion seeking to block the state attorney’s office from seeking the death penalty against an accused child killer has been denied.

Donald Smith is awaiting trial in the 2013 kidnap, rape and murder of 8-year-old Cherish Perrywinkle.

In the new motion filed Tuesday, Smith’s lawyers say the new death penalty law written by the Legislature this year is not retroactive -- the law was rewritten after portions of it were ruled unconstitutional by the U.S. Supreme Court.

Smith’s lawyers argue because of that, he can only be sentenced to life in prison if convicted.

Smith’s much-delayed trial is set for February. He was in court Thursday for a pretrial hearing, where the judge denied the motion to block the death penalty.

Smith is expected in court again Dec. 19.