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

[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, Attorney General, Tallahassee, and Heidi L. Bettendorf, 

Senior Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

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,
2

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). 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 victim 150 8-mg tablets of 

hydromorphone (1.2 grams).1 The information alleged that this occurred 

on February 27, 2009.

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.” 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 wherein 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 

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.

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 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.

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).
4

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 seconddegree 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).

“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.

* * *

Not final until disposition of timely filed motion for rehearing.