### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

THEODORE OBERMEYER, Appellant,

v.

STATE OF FLORIDA, Appellee.

Nos. 4D22

- 487 and 4D22

- 503

[ February 8, 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, Attorn ey General, Tallahassee, and Heidi L. Bettendorf, Senior Assistant Attorney General, West Palm Beach, for appellee.

P ER C URIAM

.

Theodore Obermeyer appeals a trial court’s order denying his Florida

R ule of Criminal Procedure 3.850 motion . H e 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 stem med from his role as office manager of a p ain 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 c onspiracy to t raffic in h ydromorphone,2 pursuant to section s 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 s econd

- d egree f elony m urder,
pursuant to section 782.04( 3 ) , Florida Statutes (2009) . He was charged

for the death of a clinic patient who had died from a suspected overdose the day after a clinic doctor had prescribed the v ictim 150 8

- mg tablets of hydromorphone (1.2 grams)

. 1 The information alleged that this occurred on February 27, 2009.

As to felony murder, s ection 782.04(3) provides that the killing of a

person during the perpetration or attempt to perpetrate a n 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

mur der in the second degree .” 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

agreemen t with the State where in 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

cont inue to buy drugs. Appellant also testified that there was a shortage of oxycodone in early 2009. The second

- degree murder victim was a clinic patient , and a clinic doctor decided to prescribe Dilaudid (hydromorphone)

for him instead of oxycodone . The c linic 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.

1 150 tablets x 8 mg each = 1,200 mg of hydromorphone/1,000 to convert to grams = 1.2 grams of hydromorphone.3 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 eleme nt 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 f or 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 charg ing 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 encompass ed all prescriptions for hydromorphone written on that date for any patient . This argument is belied by the Bill of Particulars filed by the S tate that listed only the named

victim for th is 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. A lthough 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.

In short, because the indic tment 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 prov e 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 ).4 The record likewise does not conclusively refute ap pellant’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 off ense. 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 predi cate felony even if it

did have a factual basis

. See

, e.g. , Smith v. State

, 215 So. 3d 113 , 114 (Fla. 1 st DCA 2017) ( finding d efendant 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 wa s 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).

“ 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 bas is existed for the charges, appellant’s counsel’s advice to plead in this case may be considered

ineffective assistance.

As t he record does not conclusively refute appellant’s claims

, w e reverse and remand for an evidentiary hearing.

Reversed and remanded

.

W ARNER
, D AMOORGIAN and G ERBER , JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.