Overturned drug case won't go to retrial

A plea deal for time served ends the case of the man who had legal drugs and prescriptions.The judge sentenced him to time served after he pleaded guilty to hydrocodone possession.

By COLLEEN JENKINS, Times Staff Writer
Published November 16, 2007

ADVERTISEMENT [Ken Helle | Times] Mark O'Hara calls for a ride from the Orient Road Jail after his release in July. He was convicted of drug trafficking because he had 58 hydrocodone pills that he said he needed for pain.

TAMPA - Mark O'Hara got out of prison in July. But Thursday, he became truly free.

After two years in prison, O'Hara had won a new trial on drug trafficking charges. Prosecutors indicated they planned to retry him. His attorney prepared for a fight.

Then, a compromise.

O'Hara, 45, pleaded guilty to possession of hydrocodone, a lesser felony. A judge sentenced him to time already served.

The plea agreement leaves a felony conviction on O'Hara's record. It saves him, however, from another 25-year sentence had he been found guilty again of drug trafficking.

"We had a productive discussion with Mr. O'Hara, and we came to the conclusion that this was the appropriate outcome for this case," Assistant State Attorney Darrell Dirks said.

It's close to the outcome prosecutors envisioned for the Dunedin man before his case ever went to trial.

Tampa airport police arrested O'Hara in August 2004. He drew their notice after he circled the departure area three times and then abandoned his bread truck in a no-parking zone.

Inside the truck, police found partially smoked marijuana cigarettes and unmarked pill bottles. One bottle contained 58 hydrocodone pills, a trafficking amount under state law, even though police had no proof that O'Hara sold or delivered any of the pills.

O'Hara said he took the pills for pain. His doctor vouched for him, saying O'Hara had been prescribed 40 Vicodin, the brand name for hydrocodone, in December 2003 and 40 more in May 2004.

But Dirks believed O'Hara, who had previously done time for cocaine trafficking, abused the pills. The prosecutor offered a plea deal of three years in prison.

O'Hara took his chances at trial and lost. He received the minimum mandatory sentence of 25 years.

In July, three 2nd District Court of Appeal judges overturned the conviction.

The court said Hillsborough Circuit Judge Ronald Ficarrotta, the trial judge, should have instructed jurors that it's legal to possess hydrocodone with a prescription.

Under the state's argument, appellate judges said, patients with valid prescriptions would become criminals as soon as they left the drugstore.

O'Hara was released from prison pending a new trial.

So, if he had prescriptions, why plead guilty?

O'Hara and his attorney, Ira Berman, couldn't be reached for comment Thursday.

But Dirks said he had evidence that incriminated O'Hara.

Pharmacy records showed that O'Hara got 40 name-brand pills in December 2003 and 40 generic pills in May 2004. When police arrested him in August, he possessed 58 generic pills, Dirks said.

"There's no factual explanation," Dirks said, "as to why he was in possession of those drugs."

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

[Last modified November 16, 2007, 01:10:22]