Trial for Donald Smith postponed indefinitely

Public defender granted emergency motion to halt proceedings

JACKSONVILLE, Fla. - The trial for Donald Smith -- the man charged with the kidnap, rape and murder of 8-year-old Cherish Perrywinkle -- has been postponed indefinitely.

Smith's attorney, public defender Fred Gazaleh, was granted an emergency motion with the trial judge to halt the proceedings.

Judge Mallory Cooper previously denied a motion by Gazaleh to withdraw from the case, and Gazaleh has appealed to the First District Court of Appeal. The appeal is pending.

Gazaleh said he has a conflict with the case because of what Smith apparently told another client whom Gazaleh represents while the two were in jail.

The state has made it clear that it doesn't plan to use that client as a trial witness, so Cooper said there's no conflict.

"In this circumstance, the state has plenty of eyewitnesses, evidence, and they certainly don't want to use this witness down the line in fear of a trial reversal," said attorney Rhonda Peoples-Waters, who's not affiliated with the case.

Galazeh argued that he has a duty to tell Smith all he knows about the case, but he can't without breaching confidence with his other client.

The trial had been set to begin Jan. 20. It may not happen now until sometime in May, June or July.

The next pretrial hearing is scheduled for Jan. 13.

The state is seeking the death penalty.

Smith befriended Cherish's family and said he was going to buy them cheeseburgers at McDonald's at the front of a Walmart on Lem Turner Road. Smith was seen on surveillance video taking Cherish out of the store, never to return, investigators said.

Gazaleh has represented Smith since he was charged last year.

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