CONVICT CLEARED, MAY FACE NEW TRIAL

TAMPA - Prosecutor Darrell Dirks couldn't help but be suspicious.

He had offered Mark O'Hara an out on a 25-year prison sentence. All
O'Hara had to do was tell prosecutors the truth about why he had 58
Vicodin pills in his possession.

But O'Hara, a bread business owner from Dunedin, wouldn't cooperate.
Three years in prison didn't sound like a deal, given that a doctor
had prescribed the pills.

He took his chances at trial and lost.

An appellate court overturned the drug trafficking conviction last
month, two years after O'Hara went to prison. The court said the
trial judge should have let O'Hara's lawyer tell jurors that it's
legal to possess Vicodin with a prescription.

Now, O'Hara waits for prosecutors to decide whether they will retry his case.

In their minds, O'Hara's stubbornness sent him to prison.

O'Hara's lawyers say he had no other choice.

Vicodin, the brand name for the painkiller hydrocodone, is widely
prescribed and abused. Prosecutors say a single pill can sell for $40
on the street.

Part of a prosecutor's job is to distinguish between drug abusers and
drug peddlers. Abusers are more likely to be shown leniency.

Dirks said he still doesn't know which category O'Hara, 45, belongs in.

O'Hara drew the notice of Tampa airport police on Aug. 2, 2004, after
he circled the departure area three times and then abandoned his
bread truck in a no-parking zone.

O'Hara said he had dropped off a friend, but didn't know her last
name. Authorities never found her.

They did find partially smoked marijuana cigarettes and unmarked pill
bottles in the truck. One bottle contained 58 hydrocodone pills, a
trafficking amount under state law.

In the 1980s, O'Hara had served time in Florida prisons drug
trafficking and tampering with a prosecution witness.

This time, police had no evidence that O'Hara sold or delivered any
of the pills. But drug trafficking laws require only possession for an arrest.

Prosecutors didn't expect, or want, to take O'Hara's case to trial,
Dirks said. If O'Hara truly had pain management issues, a plea
agreement seemed in order.

They offered O'Hara three years in prison if he would explain his
prescription drug problem.

O'Hara turned them down.

Right before trial, Dirks said, he tried again. This time, he offered
to reduce the charge to one count of drug possession and leave
sentencing up to the judge. O'Hara could have received as little as
probation, Dirks said.

Again, O'Hara refused.

The case went to trial on Aug. 3, 2005.

O'Hara's doctors, Joseph Sena and Mitchell Checkver, testified that
they had prescribed him hundreds of Vicodin pills over time for pain.

The trial took less than six hours. Jurors convicted O'Hara of
trafficking and marijuana possession.

But why was it illegal for O'Hara to have 58 pills if 80 had been
prescribed to him?

On appeal, the Attorney General's Office argued that Florida has no
"prescription defense" for defendants who have a trafficking amount
of a controlled substance.

The 2nd District Court of Appeal disagreed.A status hearing on the
case is set for Wednesday.

Dirks bristles at the suggestion that O'Hara was treated unfairly.

"The door was open before, during and after the trial," he said.
"Mark O'Hara wanted a free pass. We don't give free passes."