Donald Smith's lawyers file another motion to block death penalty from case

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

JACKSONVILLE, Fla. - Attorneys for Donald Smith have filed another motion in an effort to block prosecutors from seeking the death penalty if he's convicted in the murder of 8-year-old Cherish Perrywinkle.

The new motion contends the State Attorney's Office did not file the notice of intent to seek the death penalty within 45 days of Smith's arraignment, as it is required to do. 

Two weeks ago, Smith's lawyers filed a motion arguing that Florida's death penalty law is unconstitutional. The judge has not yet ruled on the motion. 

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.

Florida is one of only three states that do not require a unanimous jury vote for a death penalty sentence. The others are Alabama and Delaware.

In March, a judge denied a defense motion to block the state from seeking the death penalty against Smith.

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

The case has dragged on for nearly three years, and is now one of many death penalty cases on hold.

Smith is due back in court Thursday. 

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