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Darryl M. Smith

25 Years for a Legal Prescription

August 16, 2007 - Tampa Tribune (FL)

Prescription Foils 2nd Vicodin Conviction

Man Given 25 Years to Get New Trial

By Thomas W. Krause, The Tampa Tribune

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.

Reporter Thomas W. Krause can be reached at (813) 259-7698 or

Posted 8/25/07

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