JACKSONVILLE, Fla. – The man convicted and sentenced to death in 2018 for the rape and murder of 8-year-old Cherish Perrywinkle is down one lawyer after one of his three attorneys resigned suddenly over the weekend.
The reason for the attorney’s resignation was not revealed in court but it appeared to be a personal issue and not related to Donald Smith’s case.
Smith was scheduled for a two-day evidentiary hearing on Monday and Tuesday as the judge weighs whether he should be granted a new trial.
Judge Mallory Cooper opted to postpone the hearing until Jan. 16 to allow Smith’s two remaining attorneys to catch up on the work that had been done by the attorney who resigned.
Cherish’s mother, Rayne Perrywinkle, was in the courtroom Monday more than a decade after Smith kidnapped and murdered her 8-year-old daughter. She was visibly upset and surrounded by victims’ advocates for support as Smith walked into the courtroom in shackles to ask the judge for a new trial.
Smith was convicted of abducting Cherish in 2013 from a Northside Walmart where he had lured her family with promises of buying Cherish and her sisters clothes. Rayne Perrywinkle called 911 when she realized Smith had left the store with the 8-year-old, and Smith was arrested on I-95 shortly before the girl’s body was found in a creek.
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In a 78-page appeal, Smith’s attorneys argued that many errors were made in his trial that led to the penalty phase where he was sentenced to death. They said that his original conviction wasn’t valid because his former lawyers failed to remove a biased juror and failed to object to a 911 call and “digitally altered photographs.”
In May, the State Attorney’s Office filed a response to the motion for a new trial, arguing it should be “summarily denied.”
The state argued 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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During the evidentiary hearings, Smith’s attorneys will call witnesses to the stand and present physical evidence to the judge in hopes of getting Smith a new trial.
Cooper was also asked by prosecutors and a Florida assistant attorney general in October to review a letter between Smith and his penalty phase attorney. Smith’s defense is asserting attorney-client privilege regarding the letter, and the judge was asked to see if anything in the letter applies to any of the claims being made in the appeal.