News

Not a good week for local judges on appeal

By ABBY VANSICKLE and COLLEEN JENKINS, Times Staff Writers
Published August 21, 2007

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Darryl M. Smith, convicted of trafficking in hydrocodone, will get a new trial because jurors weren't told that it is legal to possess the drug with a valid prescription.

Smith's case marks the second time this summer that the 2nd District Court of Appeal has overturned a drug trafficking conviction after prosecutors and judges in Hillsborough County objected to a "prescription defense" jury instruction.

In the Aug. 15 opinion, appellate judges cite their reversal last month of the conviction of Mark O'Hara, who was sentenced to 25 years in prison for having 58 Vicodin pills that he argued were legally prescribed. Hydrocodone is the generic form of Vicodin.

Smith, convicted in October 2005, also received a 25-year prison term. During a search of his home, police found Vicodin in both an unlabeled prescription bottle and one with Smith's name on it.

Smith said he needed the pills for back pain. Employees from two pharmacies said they filled three Vicodin prescriptions for him in the months before his arrest.

But Assistant State Attorney Pam Bondi said Monday that the pills officers found were from a different pharmacy.

Plus, "he admitted to selling the pills," she said.

Appellate judges said acting Circuit Judge Nick Nazaretian made a "somewhat inconsistent decision" when he allowed a prescription defense argument during the trial but not in jury instructions.

Smith, 37, also was convicted of trafficking in cocaine and possessing marijuana with the intent to sell, for which he is serving three years in prison.

The Hillsborough State Attorney's Office plans to retry both men.

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Nazaretian wasn't the only 13th Circuit judge reversed last week.

Of the six 2nd DCA opinions issued Aug. 15 for Hillsborough cases, five reversed local judges.

Ronald Wayne Foreman, convicted of capital sexual battery on a child, will get a new trial because Circuit Judge J. Rogers Padgett allowed irrelevant and prejudicial testimony, appellate judges said.

Another man will get resentenced on aggravated battery charges Judge Chet Tharpe, a final judgment in a legal malpractice case will be redone (Judge Claudia Isom) and an issue in a divorce case will head back to court (Judge Monica Sierra).

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If you've got an hour a week to spare, a group of Hillsborough judges is asking you to spend it with a teenager in foster care.

Circuit Judge Monica Sierra said she and her colleagues thought foster teens, particularly those aging out of the system, would benefit from having mentors.

They've teamed with the Tampa Metro YMCA and Big Bothers Big Sisters to recruit volunteers. One match already has been made.

"Some of them have never even been to a Starbucks," Sierra said. "They're more than happy to just go and sit and chat."

Another perk: Mentors can use the facilities of area YMCAs to hang out for free with their "littles."

Potential mentors must undergo a criminal background check and provide four references. For more information, contact Heather Cazzola with the YMCA at (813) 310-6617 or Heather.Cazzola@tampaymca.org.

Got a tip? For cops news, contact Abbie VanSickle at vansickle@sptimes.com or (813) 226-3373. For courts news, contact Colleen Jenkins at cjenkins@sptimes.com or (813) 226-3337.

[Last modified August 21, 2007, 00:25:59]