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 asks the trial judge to declare the state's death penalty law unconstitutional, claiming it violates the 5th, 6th, 8th and 14th amendments of the U.S. Constitution.
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Smith's lawyers contend the Constitution requires a unanimous verdict from the jury.
The motion also insists that all aggravating factors in the crime be proven beyond a reasonable doubt, also unanimously.
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 does 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.
“His attorneys have filed a motion asking the court to take the death penalty off the table. The prosecutor says they're going to ask the jury to impose the death penalty when he goes to trial. But his attorneys have filed this new motion now that says the death penalty statute, which existed at the time of the crime, has been found to be unconstitutional. And so they want the courts to say he can't be sentenced to death if he is convicted,” said Ed Birk, an attorney not affiliated with the case.
Birk said because the statute has been found unconstitutional, hundreds of other cases in Florida could have similar outcomes. Birk told News4Jax a lot of how this will work hinges on one case and that will reveal a better look at the potential outcome for Smith.
"There was the U.S. Supreme Court case in the Hurst case. He had already been sentenced to death. The court said that Florida's sentencing statute was unconstitutional. And so the Legislature very quickly amended the statute to become law. Now the question is whether that statute will apply to Donald Smith. The Hurst case is still going through the courts. Florida Supreme Court heard argument this week about whether Hurst will be resentenced and whether he'll be sentenced to life in prison or to death. And all of that will have an impact on what happens to Smith," Birk said.
Smith’s next court date is May 26.