final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; L.T. Case No. 13007022 CF10A Elizabeth
Jonathan Smulevich and Ronald S. Lowy of Lowy and Cook, P.A.,
Miami, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.
defendant raises several arguments following his open guilty
plea to multiple counts arising from his multimillion dollar
enterprise of trafficking contraband prescription drugs.
Based on the state's concession of error on two of the
defendant's arguments, we reverse the defendant's
conviction on one count, and remand for resentencing on
another count. On the defendant's remaining arguments
relating to his alleged lack of competency to enter the plea,
we affirm. We write primarily to address the competency
nine-count information charged the defendant and five others
with several crimes. The defendant was charged in eight of
the nine counts: trafficking in contraband drugs (count one),
conspiracy to traffic contraband prescription drugs (count
two), organized scheme to defraud (count three), and five
counts of money laundering (counts five through nine). The
defendant was not charged in count four.
The Plea Colloquy
defendant entered an open guilty plea to the eight counts
with which he was charged. During the circuit court's
plea colloquy, the following exchange occurred:
COURT: Are you currently under the influence of any alcohol,
drugs, or prescription medication?
COURT: Okay. What do you take, sir?
DEFENDANT: I'm taking a prescription for my mental health
for brain contusions. . . .
COURT: . . . Have you been diagnosed with a mental illness?
DEFENDANT: I have an accident in 2011 where I hit my head . .
. . After that, I was in a coma. And a lot of problems come
after that to me.
COURT: Okay. Has a doctor diagnosed you with something
DEFENDANT: . . . I have depression, I been having a lot of
problems. I been seeing a psychologist, a psychiatrist.
. . . .
COURT: How do you feel today?
. . . .
DEFENDANT: Since I have the accident, I have a lot of
problems. I get confused. I need to see my doctor about it. I
no see my doctor for three years, my neurologist.
. . . .
COURT: Okay. What I'm trying to figure out is if you can
make an intelligent and knowing waiver of your rights. And
based upon your answers, I can't make that finding
because I don't understand your answers. So the question
is how do you feel today?
DEFENDANT: Feel fine.
COURT: Okay. Are any symptoms of mental illness, any of your
depression or any of those ...