JACKSONVILLE, Fla. – The latest hearing for a man accused of raping and killing 8-year-old Cherish Perrywinkle three years ago in Jacksonville was delayed again on Monday.
Donald Smith's case has become more complex with a number of developments including changes in Florida’s death penalty law.
Smith was originally scheduled to go on trial later this month. That was put on hold when Florida's death penalty law was deemed illegal by the U.S. Supreme Court. The Florida Legislature rewrote the law. Three weeks ago prosecutors and defense lawyers along with the judge discussed not totally understanding the new law and collectively decided to delay his trial until later this year.
"In an abundance of caution they wanted to have the Florida appellate courts weigh in on the issue. The third district court of appeal said the statute looks ok to me, but I think we’re going to let the Florida Supreme Court decide," said attorney Rod Sullivan who is not affiliated with this case.
The delayed trial isn't the only issue going on with Smith's murder trial. There are 74 hours of recordings of Smith in jail that his defense lawyers want suppressed. They are recorded jailhouse conversations with convicted killer Randall Deviney, also an inmate.
While Deviney was awaiting trial he sent a handwritten letter to the state attorney's office saying he had information about a previous rape and murder case committed by Smith. Smith's lawyers want all this evidence suppressed and argue the recordings violate his constitutional rights and believe Deviney was acting as an agent of police to get information out of Smith.
Sullivan said the constitutional rights defense may not work well because there’s not a right to privacy in a jail cell.
"The argument that Mr. Deviney was in prison himself was an agent of state of Florida, I also don’t think it’s a very strong argument. I think he was acting on his own behalf," said Sullivan.
The state attorney's office repeatedly said it didn't believe Deviney and he was trying to perpetuate a fraud on the court to get a plea deal. But it now wants to use that evidence against Smith.
Monday's hearing was delayed until May 4.