DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
THEODORE OBERMEYER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
Nos. 4D22-487 and 4D22-503
[April 12, 2023]
Consolidated appeals of order denying rule 3.850 motion from the
Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County;
Caroline C. Shepherd, Judge; L.T. Case Nos. 502011CF008807CXXXMB
and 502012CF000364AXXXMB.
Sofiye Williams of Sofiye Williams, P.A., Fort Lauderdale, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Heidi L. Bettendorf,
Senior Assistant Attorney General, West Palm Beach, for appellee.
ON APPELLEE’S MOTION FOR REHEARING,
CLARIFICATION AND CORRECTION
PER CURIAM.
We deny appellee’s motion for rehearing, but grant the motion for
clarification. We withdraw our prior opinion and substitute the following
in its place.
Theodore Obermeyer appeals a trial court’s order denying his Florida
Rule of Criminal Procedure 3.850 motion. He argues that his counsel was
ineffective for stipulating to a factual basis for his plea and for misadvising
him as to the lack of a factual basis for two charges: (1) conspiracy to traffic
in hydromorphone (14-28 grams), and (2) second-degree felony murder.
Appellant entered a guilty plea to both charges.
Despite appellant’s numerous admissions regarding his role in an
overall pill mill scheme, the stated goal of which was to make money
without regard for the patients’ well-being, the record does not
conclusively refute appellant’s claims that his counsel was ineffective.
Accordingly, we reverse and remand for an evidentiary hearing.
The charges against appellant stemmed from his role as office manager
of a pain clinic, which was operating as a pill mill in Palm Beach County.
The clinic was ultimately shut down resulting in numerous arrests.
Appellant was charged with conspiracy to traffic in hydromorphone,
pursuant to sections 777.04(3) and 893.135(1)(c)1.b. and (5), Florida
Statutes (2009), which require the amount of drugs involved to be between
14 and 28 grams. The information alleged that the conspiracy occurred
on February 27, 2009.
Appellant was also charged with second-degree felony murder,
pursuant to section 782.04(3), Florida Statutes (2009). The charge arose
from the death of a clinic patient who had died from a suspected overdose
the day after a clinic doctor had prescribed the victim 150 8-mg tablets of
hydromorphone (1.2 grams). 1 The information alleged that on February
27, 2009, 2 while appellant was engaged in trafficking in hydromorphone
or other controlled substance, the victim died.
As to felony murder, section 782.04(3) provides that the killing of a
person during the perpetration or attempt to perpetrate an enumerated
criminal offense listed in this section “by a person other than the person
engaged in the perpetration of or in the attempt to perpetrate such felony,
the person perpetrating or attempting to perpetrate such felony is guilty of
murder in the second degree.” Although the information charged that
appellant trafficked in hydromorphone on February 27, 2009, the trial
court specifically utilized the conspiracy to traffic offense as the underlying
felony for the second-degree felony murder charge in this case.
Prior to entering his plea, appellant entered into a cooperation
agreement with the State where he agreed to give truthful information
regarding his knowledge of the pain clinic’s activities. In his sworn
statement, appellant described the clinic’s operations including detailing
his role as office manager. The clinic procured various drugs which were
supplied to their patients through prescriptions written by clinic doctors.
The entire enterprise was to make money from the drugs prescribed to
patients and to keep patients “happy” so that they would come back and
continue to buy drugs. Appellant also testified that there was a shortage
of oxycodone in early 2009. The second-degree murder victim was a clinic
1 150 tablets x 8 mg each = 1,200 mg of hydromorphone/1,000 to convert to
grams = 1.2 grams of hydromorphone.
2 The date the victim died was actually a day later.
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patient, and a clinic doctor decided to prescribe Dilaudid (hydromorphone)
for him instead of oxycodone. The clinic only stocked 4 mg doses of
Dilaudid, because appellant, as office manager, could not obtain 8 mg
doses for the clinic. The doctor wrote the prescription for the victim on
February 27, 2009.
After the parties stipulated to a factual basis, the trial court accepted
the plea as voluntary, adjudicated appellant guilty, sentenced him to
concurrent fifteen-year sentences on the charges, and imposed a fine.
Later, appellant filed a motion for postconviction relief alleging
ineffective assistance of counsel for failing to advise him that the evidence
was legally insufficient to support the plea. The State responded, and the
trial court denied the motion. This appeal followed.
“An appellant can challenge the factual basis for his plea in a rule 3.850
motion.” Harris v. State,
32 So. 3d 197, 197 (Fla. 4th DCA 2010) (citation
omitted). Here, appellant argues that counsel was ineffective for failing to
advise appellant that the factual basis was insufficient to support the
quantity element of the conspiracy to traffic in hydromorphone charge.
The record shows that the only evidence of the amount of drugs
administered or prescribed on the date alleged in the information, namely
February 27, 2009, was a written prescription to the victim for 150 8-mg
tablets of hydromorphone, which equates to only 1.2 grams of
hydromorphone. This amount is much less than the 14-28 grams set forth
in the charging instrument.
In response, the State asserted that the conspiracy charge was not
limited to the single prescription written for the victim on February 27,
2009, but suggested that the charge encompassed all prescriptions for
hydromorphone written on that date for any patient. This argument is
belied by the Bill of Particulars filed by the State that listed only the named
victim for this conspiracy count.
Appellant’s overall admissions to his involvement as office manager in
the scheme do not directly relate to the factual basis (quantity element) for
the conspiracy charge. Although appellant stated that he “trafficked pills,”
the record does not indicate that this statement directly relates to the
conspiracy charge for hydromorphone, and does not mention dates or
whether the victim was involved. Moreover, the record does not support
such a finding where the testimony demonstrated that the clinic never
possessed the pills at issue as it did not stock the 8-mg pills, and the victim
only obtained the pills after filling the prescription at Walgreens.
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In short, because the indictment limits the conspiracy to traffic offense
to one date—February 27, 2009—and the Bill of Particulars lists only the
victim’s name for that date—we are unable to find the connection on this
record between appellant’s admissions and the specific quantity element
needed for the conspiracy charge. Without meeting the quantity element,
the State would be unable to prove the conspiracy to traffic in
hydromorphone. See Snell v. State,
939 So. 2d 1175, 1179 (Fla. 4th DCA
2006) (explaining that to support trafficking, one of the elements that must
be proven is quantity).
The record likewise does not conclusively refute appellant’s claim
regarding ineffective assistance of counsel for his plea to second-degree
felony murder. Without a factual basis for the conspiracy to traffic offense,
no underlying felony supports the felony element of the second-degree
felony murder offense. Proof that a defendant committed the underlying
felony is required even in the context of a plea. See, e.g., Miller v State,
988 So. 2d 138, 139 (Fla. 1st DCA 2008). We also question whether the
conspiracy offense could have been used as the predicate felony even if it
did have a factual basis. See, e.g., Smith v. State,
215 So. 3d 113, 114
(Fla. 1st DCA 2017) (finding defendant could not be convicted of second-
degree felony murder based upon the underlying felony of conspiracy to
commit robbery, because the conspiracy to commit offense was not a
predicate felony under section 782.04(3)); Pugh v. State,
624 So. 2d 277,
278 (Fla. 2d DCA 1993) (stating “[a]lthough aggravated child abuse and
attempted aggravated child abuse are specified within section 782.04,
conspiracy to commit aggravated child abuse is not. It is necessary to
emphasize that conspiracy to commit a crime, attempt to commit a crime,
and the actual commission of a crime are separate and distinct offenses”)
(emphasis added); see also § 782.04(3)(a), Fla. Stat. (2009) (showing that
actual trafficking is an enumerated offense for felony murder).
Even if the trial court erred in premising the second-degree murder
charge on conspiracy to traffic rather than actual trafficking of
hydromorphone and other controlled substances as alleged in the
information, the amount of the only drug prescribed on February 27, 2009,
was less than the trafficking threshold. Therefore, the evidence would not
have proven the underlying felony of trafficking to sustain a conviction for
second-degree felony murder. Furthermore, on that date the clinic doctor
wrote a prescription which the victim filled at a drug store. There is no
evidence in the record that appellant had a role in providing these drugs
on this date. The State contends that the information could span
trafficking in various drugs that the clinic gave the victim for months prior
to the victim’s death, but the information only alleged trafficking in those
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drugs prescribed to the victim on the day before the victim’s death and did
not allege that any prior prescriptions or drug transactions resulted in the
victim’s death.
“The main purpose for ascertaining a factual basis for a plea is to
prevent a defendant from mistakenly entering a plea to the wrong offense.”
State v. Sion,
942 So. 2d 934, 937 (Fla. 3d DCA 2006) (citation omitted).
Because it appears that no factual basis existed for the charges,
appellant’s counsel’s advice to plead in this case may be considered
ineffective assistance.
As the record does not conclusively refute appellant’s claims, we reverse
and remand for an evidentiary hearing.
Reversed and remanded.
WARNER, DAMOORGIAN and GERBER, JJ., concur.
* * *
Final Upon Release; No Motion for Rehearing Will Be Entertained.
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