After first refusing a plea in January and agreeing to one in February, a sex offender accused of uploading a single image of child sexual abuse to his Flickr account has again withdrawn his plea and asked for a trial, now scheduled for May.
Gary Durso, 63, of Ellsworth Drive in Palm Coast, had pleaded to the charge hoping for house arrest or probation. It was to be an open plea, leaving it to the judge to decide his sentence. His charge is a third-degree felony with a maximum penalty of five years in prison.
On Wednesday, Durso withdrew his plea after Circuit Judge Dawn Nichols agreed with Assistant State Attorney Melissa Clark that a sentence without some jail or prison time would not cut it.
Clark was offering 18 months in prison and 32 months of sex-offender probation. The gravity of the sentence was not dictated by the single image alone. If it were, Durso would have likely won his argument for house arrest or even probation. But the new charge compounds an older and grave one, when he traveled to have sex with a minor.
“Remember what I told you, that if I see more,” Nichols told Durso and his attorney, referring to the Feb. 5 hearing, when she said her decision would be informed by whatever she would learn of Durso’s history. Now that she had, she said she would allow him to withdraw his plea, but she would not hand down a sentence with anything less than some prison time. “I’m sorry, I can’t do a community-based thing based on this,” Nichols said.
“So I can specifically know, is it because of the police report relating to the previous offense?” his attorney, James Smith, asked. It wasn’t, of course, just the police report. It was an act that led to Durson’s conviction and a prison sentence, which he served, and his subsequent status as a sex offender, which carries restrictions of its own.
“What is of great concern for the court is that he’s gone to prison,” the judge said, “knows the consequences of this type of behavior and is alleged to have possession of material that he knows he’s not supposed to have. And so I think the state’s offer is eminently fair.”
Nichols said she would allow Durso to withdraw his plea, or she would delay sentencing 60 days to allow Durso to put his affairs in order before reporting for prison.
Durso withdrew his plea and asked for a trial. Nichols ordered jurors for an April 8 docket sounding and a May trial. She said it is not a complicated case. The defense intends to rely on a computer expert, suggesting that it would contest the authenticity of the image or how and whether it came into Durso’s possession. The defense will hope to cast just enough doubt on the mechanics of electronic possession to win a not-guilty verdict.
A different defense attorney had told Nichols in January that Durso was not attempting to “game the system” to get a better offer and that he was maintaining his innocence. But his decision to plead just a month later suggests that he had accepted at least a measure of guilt, and was now doing exactly what his attorney had said he wasn’t doing before: looking for a better deal. The prosecution will be barred from revealing any of that to the jury.
Smith had also wanted to make sure the judge had looked at a 33-page set of character references and documentation intended to speak to Durso’s good name. Included in the documentation were his diesel and automotive technology diploma in 1995 from a school in Ohio, long before the original offense, and all sorts of other related certificates. He’d been a Marine.
His wife, among several other character references (including his brother, his in-laws, a childhood friend and a retired Massachusetts law enforcement officer), wrote the court of their 40-year relationship, describing him as “a humble person of integrity,” as someone who “consistently demonstrates strong ethical characteristics of courtesy, honesty and respect,” how since the latest offense, he’d expressed “genuine remorse” and attended Sunday mass “in an effort toward change and self-improvement.”
She makes no mention of the time he traveled from his Palm Coast home–the home he shared with his wife and daughter–to meet a minor for sex in Osceola County, which resulted in his arrest (it was a sting operation), imprisonment for almost two years and designation as a lifetime sex offender.
In May 2025 the Flagler County Sheriff’s Office had received a cyber tip from the National Center for Missing and Exploited Children, which gets alerts from online storing and sharing services from Google to Flickr to social media companies whenever items tagged as child sexual abuse material, or CSAM, is detected. One such image with the file name “assonly,” of a fully nude pre-pubescent child bending over at the waist, had been allegedly uploaded to Durso’s Flickr account. Flickr is a publicly viewable photo and video sharing community.
Sheriff’s Detective Joe O’Barr subpoenaed Durso’s account’s data from Flickr, receiving zip files containing numerous pornographic images, including the one flagged by the cybertip. The detective turned over a sanitized version of the image to the Exploited Children’s Division of NCMEC for analysis. The image was traced to a series of CSAM previously known by law enforcement.
In an interview with O’Barr, Durso said he runs a “free photoshoot” hobby that he operates through Craigslist, posting at his Flickr account. He told the detective that he’d been “contacted on Craigslist to conduct photoshoots by females who are under the age of 18 and has been sent Child Sexual Abuse Material by these unknown persons.” He confirmed downloading the image in question and uploading it to Flickr, resulting in his arrest, and now his pending trial.
Correction: The article was updated to reflect the defense attorney’s correct name. He was misidentified in an earlier version.
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