JACKSONVILLE, Fla. – The man convicted of raping and murdering 8-year-old Cherish Perrywinkle in 2013 will be back in court Tuesday for a status conference hearing for a 78-page appeal filed by his lawyers in April.
In 2018, Donald Smith was found guilty of killing Perrywinkle and was sentenced to death.
Investigators found that Smith abducted Perrywinkle by luring her into his van at a Northside Walmart in 2013. Smith was later arrested on Interstate 95 shortly before her body was found in a creek.
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Smith’s lawyers argue in the lengthy appeal that many errors were made in his trial that led to the penalty phase where he was sentenced to death.
The state argues that even if those errors were made, the evidence was overwhelming that Smith murdered Perrywinkle, and it would not have impacted the outcome of his getting the death penalty.
Smith’s appeal argues that his original conviction isn’t valid because his former lawyers failed to remove a biased juror and failed to object to a 911 call and “digitally altered photographs.”
Back in May, the State Attorney’s Office filed a response to the motion for a new trial, arguing it should be “summarily denied.”
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Belkis Plata, a Jacksonville attorney not associated with the case, explained Smith’s strategy.
“The job of the new defense attorneys is to poke holes in the work that the former defense attorneys did and try to show that it was so poorly done, that it negatively affected Mr. Smith, and he deserves to have another day in court,” Plata said.
Plata said Tuesday’s hearing is more procedural. But the overall result of the appeals process could go a few different ways for Smith’s case.
“I think it’s left to be seen which issues we’re going to address and whether he gets a complete do-over or if it’s only going to be as it relates to the death penalty itself,” Plata said.
Despite the state’s argument that even if those errors occurred, the outcome would have been the same for Smith, the judge ordered the evidentiary hearing, which will be Dec. 4.
“I think they think they had really strong evidence and taking these things out, if these things did not exist at the time… They couldn’t have been put forward, the jury would have found the same way,” Plata said. “I think the court has said, ‘Not so fast. We’re willing to hear these issues.’”
Smith’s status conference is at 10 a.m. Tuesday.