PRESCRIPTION FOILS 2ND VICODIN CONVICTION

Man given 25 Years to Get New Trial

TAMPA - For the second time in the past 30 days, an appeals court has
overturned a 25-year prison sentence for someone convicted of
possessing Vicodin even though the defendant insisted he had a
prescription for the narcotic pain pills.

On Wednesday, the 2nd District Court of Appeal said Darryl M. Smith,
37, deserves a new trial because a judge did not tell the jury that
having a prescription for a drug was a valid defense.

Last month, the appeals court determined that Mark O'Hara deserved a
new trial for the same reason. The prosecutors and trial judges were
different in each case.

Although O'Hara has been released pending retrial, Smith likely will
remain behind bars for a while. In addition to the Vicodin charge, he
was convicted of trafficking in cocaine and possession of marijuana
with the intent to sell. He is serving three years in prison on those
charges, which were not overturned. Smith's attorney, Daniel Daly,
said his client is due to get out of prison in December.

Pam Bondi, the spokeswoman for the Hillsborough County State
Attorney's Office, said prosecutors are reviewing the case before they
decide their next move.

Daly said Tampa police used a confidential informant to investigate
whether Smith was selling marijuana in 2005. The informant confirmed
that Smith was selling marijuana from his house, and police secured a
search warrant.

In a safe, they found cocaine, marijuana and two bottles with Vicodin
tablets. One was a marked prescription bottle. The second was
unmarked. In total, Smith had 90 pills, Daly said.

At trial, employees from two pharmacies testified that between
September 2004 and January 2005 they had filled three Vicodin
prescriptions for Smith. He testified on his own behalf that he had a
prescription for the Vicodin to help with pain for a back injury.

Bondi said prosecutors pointed out during the trial that the marked
Vicodin bottle was from a different pharmacy than the ones discussed
in court. The jury also heard that Smith told the officers that he
sold Vicodin, Bondi said.

Smith's trial lawyer asked Judge Nick Nazaretian to tell the jury that
having a prescription is a valid defense, but he would not.

In last month's decision, the appeals court reversed O'Hara's
conviction under similar circumstances.

O'Hara was arrested outside Tampa International Airport. In his bread
truck, they found a marijuana cigarette and an unmarked bottle of
Vicodin. O'Hara said he had a prescription, but prosecutors argued it
was not a valid prescription.

Prosecutors have said they will not drop the charges against O'Hara. A
new trial has not been scheduled.