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Donald Smith's lawyers want murder trial moved

Sex offender's trial set to begin April 4, 2016, in killing of Cherish Perrywinkle

JACKSONVILLE, Fla. – Lawyers for the man accused of abducting, raping and killing 8-year-old Cherish Perrywinkle in June 2013 will argue Thursday that Donald Smith cannot get a fair trial in Jacksonville.

At a hearing Monday, a judge set a hearing for the defense to argue its change-of-venue motion. The trial is currently scheduled to begin on April 4, 2016.

Rayne Perrywinkle, the victim's mother, wants Smith to face the death penalty. Last month, she said she's eager to get the court proceedings over and done with after Smith's trial date has been pushed back four times.

"I still feel just like I did, as if it happened yesterday. The pain is still very real. It's emotional pain. It's devastating," Perrywinkle told News4Jax after the last hearing. "I wouldn't wish this on anyone. I wouldn't wish this on my worst enemy."

Smith, whom prosecutors said befriended Perrywinkle's family at a Northside Walmart before abducting her, was a convicted sex offender who was released from jail just three weeks before Cherish's murder.

Julie Schlax, a former prosecutor, has been appointed to represent Smith. A second attorney was also appointed to assist with the penalty phase, because the prosecution intends to seek the death penalty.

Smith's attorneys don't believe an impartial jury can be found because of all of the pretrial coverage.  It's expected that Smith's mental health will be discussed during the trial.

"It's pretty common when you're thinking about high-publicity murder cases that this motion would be filed," said attorney Rhonda Peoples-Waters, who's not affiliated with the case.

The last time a murder trial was moved out of Duval County because of pretrial publicity was in 1999. Josh Phillips was tried and convicted in Polk County for the 1998 murder of 8-year-old Maddie Clifton.

"It is certainly an important issue, and defense attorneys almost have to -- they're almost compelled to (file the motion) -- or it's an ineffective assistance of their representation of the client, if they don't file such a motion," Peoples-Waters said.
 

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The crime

On June 21, 2013, Cherish Perrywinkle disappeared from a Walmart store on Jacksonville's Northside.

The 8-year-old (pictured) had been driven to the store with her mother and two younger sisters by a man her mother had met at another store. Police said Donald Smith approached Cherish's mother, Rayne Perrywinkle, while she and her daughters were shopping and offered to help them.

Rayne Perrywinkle told police that Smith said he had a gift card to Walmart and would buy the children clothes if they traveled together to the store. He was a stranger to the family, but she accepted the ride.

Police said that while inside the store on Lem Turner Road, Smith told Cherish's mom he would take the girl to the McDonald's at the front of the store to buy her food.

Police said surveillance video shows Smith leading the 8-year-old out of the store and driving away in his van.

Cherish's body was found less than a day later in a marshy area near the Trout River. A woman reported seeing Smith's van, the subject of an Amber Alert, near where Cherish's body was discovered.