Opinion
CASE NO. 4:07cr61-SPM.
March 20, 2008
REPORT AND RECOMMENDATION
Defendant proposed to enter a guilty plea to Counts One and Two of this indictment. The district judge referred this matter to me for purposes of hearing Defendant's proposed change of plea pursuant to Fed.R.Crim.P. 11 and to enter a report and recommendation as to whether to accept the change of plea. All parties consented to this procedure, and the written consent has been entered. After hearing, it is found that:
1. I explained the elements of Counts I and II to the Defendant.
2. When I explored the factual basis for the plea with Defendant, as to Count I, Defendant said that he was authorized by his supervisor to use a code to void transactions where prescription drugs had been prepared but had not been picked up by the customer. As to that Count, he said the prescription drugs that had been prepared were not picked up, so he voided the transaction, cancelling the charge to the insurance company. The drugs were returned to the shelf. He said that this generated a credit that had to be placed on a gift card since the register did not have cash for the refund. He said he placed the gift card in a place authorized by Wal-Mart for storage, and he said that he did not personally use the gift card in any way. A guilty plea as to Count One cannot be accepted since Defendant does not admit the factual basis for the plea.
3. As to Count Two, Defendant said that no prescription drugs were returned as to that transaction, but he did, with authority from his supervisor, create a gift card in the amount of $249.99. He said he placed the gift card into the place authorized by Wal-Mart for storage of such gift cards. He said that after a time, when no one came to pick up the gift card, he took the gift card for his own personal use. He said that he was authorized by Wal-Mart to do this as to this gift card. A guilty plea as to Count Two cannot be accepted since Defendant does not admit the factual basis for the plea.
4. Defendant has voluntarily consented to go forward with this plea of guilty before me. Defendant knowingly and voluntarily has waived the ten day period for filing objections to this report and recommendation, and agrees that written objections, if any, must be filed within twenty-four hours from receipt of a copy of this report and recommendation. The United States also consents to this procedure, including the shorter period for objections.
Accordingly, it is RECOMMENDED that the court REJECT the plea agreement and defendant's plea of guilty as to Counts 1 and 2.
IN CHAMBERS at Tallahassee, Florida, on March 20, 2008.
NOTICE TO THE PARTIES
A party may file specific, written objections to the proposed findings and recommendations within 15 days after being served with a copy of this report and recommendation. A party may respond to another party's objections within 10 days after being served with a copy thereof. Failure to file specific objections limits the scope of review of proposed factual findings and recommendations.