tampabay.com

Freed man still in limbo

He awaits the state attorney's decision on whether he'll be tried again on drug charges.

By COLLEEN JENKINS
Published July 26, 2007


TAMPA - Mark O'Hara left jail without handcuffs Wednesday, two years after he went to prison and one week since an appeals court ordered him a new trial.

He was serving a 25-year sentence for having 58 Vicodin pills in his bread truck. Jurors weren't told that it is legal to possess the drug with a prescription, which he had.

The Hillsborough State Attorney's Office has not decided whether it will seek a retrial in the Dunedin man's drug trafficking case.

O'Hara, 45, said he made the 168-mile trip back from a Dixie County prison without knowing exactly why. His attorneys had alerted him of their successful appeal but cautioned that it wouldn't become final for 30 days.

Still, he figured something positive was afoot.

"They been treating me like a human," he said of authorities.

Events leading up to his release also seem to point in his favor.

Col. David Parrish, who runs the county's jails, said State Attorney Mark Ober called him late Monday afternoon with an urgent request. He wanted O'Hara brought back to Hillsborough from the Cross City Correctional Institution as soon as possible.

Prison transfers usually take a week. O'Hara's took a day.

On Wednesday morning, he appeared before Circuit Judge Ronald Ficarrotta, the same jurist who heard his trial and sentenced him to the mandatory 25 years in prison on the trafficking charge.

The hearing was scheduled so quickly that O'Hara's attorneys didn't even know about it.

Prosecutor Darrell Dirks acknowledged that the state erred in leaving out a jury instruction regarding prescriptions. He suggested O'Hara be returned to the status he had before his August 2005 trial.

O'Hara piped up, saying he had been released from jail on his own recognizance after his arrest.

Court records confirmed it. Dirks didn't object, and the judge ordered O'Hara's release.

He got to ride back to jail in a van without other inmates, he said.

That isn't typical treatment for an inmate, but neither was the 2nd District Court of Appeal ruling about his case.

Claims called 'absurd'

The opinion faulted prosecutors' claims that Florida statutes do not allow a "prescription defense" in drug trafficking cases.

Using words like "absurd" and "ridiculous," three appellate judges said the state's position would make patients with valid prescriptions criminals as soon as they left the drugstore.

Tampa airport police arrested O'Hara in August 2004 after they found the hydrocodone and a small amount of marijuana in his illegally parked and unattended bread truck.

He refused plea agreements from prosecutors before trial, one for three years in prison. Instead, jurors heard from two doctors who said they had been treating O'Hara since the early 1990s for pain related to gout and auto accident injuries.

Prosecutors did not contend that O'Hara, who went to prison in the 1980s for cocaine trafficking, sold any of the 80 Vicodin pills he had been prescribed in the eight months before his arrest. Under the law, simply possessing the quantity of pills he had constitutes trafficking.

On Wednesday, members of the State Attorney's Office continued to review the case.

"The immediate concern was to get him back and get him out of jail while they look at the case law," said Assistant State Attorney Pam Bondi.

No clothes, no money

At 1:25 p.m., O'Hara walked out the front door at the Orient Road Jail, dazed and squinting in the sunlight.

He wore a sky blue paper shirt and pants outfit, provided by the jail to inmates who don't have street clothes. He called it a "clown suit." He said he threw away his personal belongings on his way out of prison.

Salt and pepper stubble blanketed his chin. He left his razor at prison, too. A guard told him he would be back for it.

"No, I won't," O'Hara recalled saying.

He had only a rolled-up stack of legal papers. No money, no ride home.

As he tried to figure out what to do next, Parrish walked up from the parking lot. The jail administrator recognized O'Hara instantly.

"I didn't know about this," Parrish said, pointing to the awkward paper outfit. "I'm sorry. You've had enough problems."

Getting home to Pinellas County was the next one. Parrish handed him a $20 bill, then disappeared inside to call a cab.

"You can't beat that," O'Hara said, smiling.

His head felt cloudy, he said. He wasn't sure what to think of his new freedom or whether it would last.

He sold two condos, his car and his bread business to pay for the appeal. But the state took the proceeds, according to family friend Eric Mastro, to pay toward the $500,000 fine that came with his conviction.

Parrish walked back out of the jail. The cab would arrive in five minutes, he said.

When O'Hara told him how far he had to go, Parrish handed him another $40 from his wallet.

Colleen Jenkins can be reached at cjenkins@sptimes.com or 813 226-3337.