JACKSONVILLE, Fla. – The man convicted in 2018 of the rape and murder of 8-year-old Cherish Perrywinkle -- in one of Jacksonville’s most high-profile cases -- is once again asking for a new trial.
Donald Smith was convicted of abducting Cherish in 2013 from a Northside Walmart, where he had lured her family with promises of buying clothes for Cherish and her sisters.
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Rayne Perrywinkle, Cherish’s mother, called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.
Smith was convicted and sentenced to death in a 2018 trial in Jacksonville, but one of his appellate attorneys argued before the Florida Supreme Court on Wednesday that Smith did not have adequate representation during the penalty phase of his trial.
His attorney told the court that Smith’s trial attorney, Julie Schlax, should not have opted to call Dr. Heather Holmes, a clinical and forensic psychologist, because her testimony was prejudicial against Smith and presented facts to the jury about him that they hadn’t already heard during the trial.
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Holmes answered a host of questions during her testimony, ranging from ones about Smith’s upbringing and unusually close relationship with his mother to those about the origins of his sexually deviant behavior.
She testified that her research did not find anything mitigating about Smith and that he met the criteria to be diagnosed with antisocial personality disorder and pedophilic disorder.
Smith’s appellate attorney said it was a mistake by Schlax to call Holmes because Schlax was tasked with showing there was mitigation for Smith, so that he might avoid the death penalty.
The assistant attorney general who represented the state on Wednesday before the Supreme Court argued that Schlax had an impossible task because Smith’s history did not provide any mitigating factors for what he did to Cherish.
The assistant AG argued that Schlax called Holmes because she had no other viable options.
News4JAX will update when the Florida Supreme Court releases its decision on Smith’s appeal.
Smith’s previous appeals have been denied by lower courts.