JACKSONVILLE, Fla. – Attorneys for the man convicted of raping and murdering 8-year-old Cherish Perrywinkle in 2013 were back in court Tuesday as they seek a new trial for Donald Smith.
Smith was found guilty in 2018 of killing Perrywinkle and was sentenced to death.
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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.
MORE: Complete coverage of Donald Smith’s trial and aftermath
At a status conference Tuesday for the 78-page appeal filed by his lawyers in April, Florida Assistant Attorney General Charlotte Millsaps asked the judge to review a letter between Smith and his penalty phase attorney.
Millsaps said Smith’s defense is asserting attorney-client privilege regarding the letter, and Millsaps asked the judge to inspect the letter en camera, meaning in private, to see if anything in the letter applies to any of the claims being made in the appeal.
Prosecutors also asked the judge to review the letter, which will be submitted to the court under seal. She agreed.
Smith did not appear in court Tuesday but will be in court for the evidentiary hearing, which is scheduled for Dec. 4-5. Both sides told the judge on Tuesday that they will be ready for that hearing.
Smith’s lawyers argue in their lengthy appeal motion 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.
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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.”
Belkis Plata, an attorney not affiliated with the case, explained what’s next.
“In preparation for the hearing Dec. 4 and 5, the defense and prosecution will begin to prepare their evidence that they want in the court,” Plata said. “So similarly to a trial, they will speak with witnesses, prepare them for their testimony, and prepare to present actual physical evidence, documentation, things like that, to the court for consideration.