Eduardo Galego was sent by his probation office to live under the Julia Tuttle Causeway after serving five years on a sexual assault charge. But the Miami-Dade Public Defender's Office claims that complications of his diabetes, not a willful intent to violate probation, landed him back in prison for another 20 years. Here's his appeal brief, filed May 29:
IN THE DISTRICT
COURT OF APPEAL OF FLORIDA
THIRD
DISTRICT
CASE
NO. DCA:08‑2011
EDUARDO
GALEGO,
Appellant,
-vs-
STATE
OF FLORIDA,
Appellee.
___________________________________________________
APPEAL FROM THE CIRCUIT COURT
OF THE
ELEVENTH JUDICIAL CIRCUIT OF
FLORIDA,
IN AND FOR
MIAMI-DADE COUNTY
___________________________________________________
INITIAL BRIEF
OF APPELLANT
INTRODUCTION
In
the trial court, the Appellant, Eduardo Galego, was the defendant, and the
Appellee, the State of Florida, was the prosecution. In this brief, the parties will be referred
to as they stood before the lower court. The symbols “R.” and “T.” refer to
portions of the record on appeal and transcripts of the lower court
proceedings, respectively. The symbol
“S.R” refers to the supplemental record filed in this case.
STATEMENT OF THE CASE
AND FACTS
Introduction
Mr. Galego was living under the Julia
Tuttle Causeway as a sex offender on probation.
He was violated for missing curfew one night. Substantial uncontroverted lay, medical and
documentary evidence established that he missed curfew because he had become
sick that day with acute complications of diabetes mellitus, leading to
emergency intervention at the hospital.
The State’s theory was that Mr. Galego missed curfew
because he was drunk, and tried to cover it up by pretending to be sick. The theory rested entirely upon speculation,
and was contradicted by laboratory and
clinical findings in the hospital records, by direct evidence that he had
consumed no alcohol that day, and by evidence that he had never been known to
be a drinker. The trial court
nevertheless adopted the State’s theory, revoked Mr. Galego’s probation and sentenced him to
twenty-five (25) years in prison.
* * * * *
In 2002, Mr. Galego was charged with
sexual battery. (R. 1-3). In 2006, he accepted a plea to five years in
prison, with credit for time served, followed by seven years’ probation as a sex offender. (R. 70-74).
A condition of his probation was a curfew from 10:00 p.m. to 6:00
a.m. (R. 79). Mr. Galego’s probation officer, Lorenzo Salazar, had
ordered him to reside at the sex offender encampment under the Julia Tuttle
Causeway. (R. 112-13).
On the first night of his probation,
Mr. Galego was unable to find his way to the encampment, which is located under
the eastern section of the western bridge of the Julia Tuttle Causeway, (R. 95,
101); he ended up under the wrong bridge.
(R. 119-21). He reported his
mistake to P.O. Salazar the following morning.
(R. 120). By that night, he had
located the encampment and remained there for six days, (R. 121-23), until
violated by P.O. Salazar for missing curfew the first night. (R. 133). After a hearing, the trial court determined
that Mr. Galego’s failure to make curfew that first night of
his probation was not a willful and substantial violation of probation. (R. 7).
The present case involves an alleged
curfew violation on January 24, 2008. A
hearing on the alleged violation took place on March 2, April 18, and July 2,
2008.
Mr. Galego has suffered for seventeen
years from diabetes mellitus, a disorder of insulin in the hormones which
raises the blood sugar level. (R.
274-76). Living under the causeway is
deleterious to diabetics’ health – insulin must be refrigerated, but there is
no electricity under the causeway; without electricity, it is difficult to
adhere to the prescribed regimen of small, frequent meals; and humidity
depletes volume, throwing off glucose, which raises the blood sugar
level. (R. 276-77). The wrong amount of
insulin or food, or excessive volume depletion can cause kidney failure,
amputation of the extremities, or blindness.
(R. 277-78).
Two weeks before the alleged violation, during pre-dawn hours,
Mr. Galego was treated at Jackson Memorial Hospital: having run out of
medication, his blood sugar had spiked to 415, a “Critical High.” (R. 147).
The onset was abrupt; he had no history of similar symptoms. (R. 155).
Insulin was administered intravenously to lower his blood sugar, and he
was given oral medication to be taken twice a day, insulin for injection into
his thigh or stomach three times a day, and neurontin, for diabetic neuropathy
(numbness and tingling in the extremities), a complication characteristic of
long-term diabetics. (R. 331-32).
During the clinical history, Mr. Galego denied alcohol use. (R. 332-33).
Had any evidence of alcohol ingestion or impairment been detected by the
treatment personnel, they would “automatically” have noted this on the chart.
(R. 333). There was no such
notation. (R. 146-47, 154-56).
P.O. Salazar, the State’s only witness, testified that at 2:30
p.m. on January 24, 2008, Mr. Galego telephoned to report that he had just
applied for a job at a construction site, but had been turned down because he
had no work permit.[1] (R. 205-06). According to Salazar, there was “some music”
and a “lot of noise and other people in the background,” giving him “the
impression that [Mr. Galego] was “at some kind of get together,” and not really
looking for work. (R. 207, R.
350-54). He admitted that this was “just
a guess,” that Mr. Galego could have made the call from a lunch wagon at
the work site. (R. 377). Mr. Galego’s “speech was pretty much normal”
during this call. (R. 377-78).
At 3:00 p.m. that day, Mr. Galego went to the home of his
cousin, Ezmarelda Garcia. He went to her
home every day to bathe, to eat, and to inject himself with insulin, which he
stored in her refrigerator. (S.R. 7-9,
12, R. 275, 331). Ms. Garcia testified
that he was sick when he arrived – sneezing, sore throat, runny nose. (S.R. 11-12).
It was cold that day, so she gave him “two little cups” of Robitussin,
knowing he would be exposed to the elements under the causeway. (S.R. 12-13).
He ate spaghetti with red sauce and cheese. (S.R. 12-14).
He had ingested no alcohol while he was there – she had no alcohol in
the house, and in any case she had never known him to drink. (S.R. 20, 25).
At 7:45 p.m., Mr. Galego left his cousin’s house to catch the
first of the two buses that would take him to the causeway. He was still sick when he left her house, his
speech somewhat impaired. (S.R.
13). Worried, Ms. Garcia called him on
his cell phone several times during the first of his two bus rides. (S.R.
13-14, 22). He “was feeling really
sick,” “sweating profusely,” and “no longer seeing well.” (S.R. 14-15).
Ms. Garcia heard no partying in the background when she called him, only
bus noises. (S.R. 24).
At 10:00 p.m. and again at 10:05 p.m., Mr. Galego placed calls
to P.O. Salazar, as reflected in telephone records produced by the defense at
sentencing. (S.R. 37-41). Salazar said he never got the calls or any
messages, admitting that he might have missed them, or might have forgotten
about them. (R. 244-45, 256-57, 262-63,
T. 121-23). Salazar acknowledged that,
had he received a call or message from his probationer, it “might have”
affected his decision whether to violate him.
(T. 121-23).
Shortly after calling Salazar, Mr. Galego called two people who
live under the causeway to tell them that illness had delayed his return to the
causeway. (R. 203). These two people
conveyed the messages to P.O. Salazar at 10:45 p.m., when he arrived for curfew
check. Id. One of the declarants – “Luis Gonzalez or
something like that” – told Salazar that Galego said that he had “had a seizure
on the bus,” had “ended up in Aventura and was on his way back.” (R. 204).
The other declarant – Salazar did not know his name or anything else
about him – reported that Galego had said “that he had felt sick or having a
seizure after he cut his hand.” (R. 204,
355-56).
At 1:00 a.m. on January 25, 2008, Mr. Galego telephoned P.O.
Salazar to explain why he missed curfew.
He said he had fallen asleep on the bus, missing his stop at the
causeway. He said that, when he awoke,
he was in Aventura, where he threw up on the bus. (R. 211).
Corroborating this account were county records produced by the defense
reflecting that someone had vomited in the handicapped section of a northbound
bus at N.W. 180th Street on the night of the alleged violation. (R. 156-161, 392-94). Mr. Galego explained that he then had to
change buses and had just returned to the causeway after walking back from the
bus stop. (R. 211, 219, 221). Salazar told Galego to report to probation
the next morning: he was already planning to arrest him for a curfew
violation. (R. 221, 265).
Minutes later, Mr. Galego called Salazar back to say that he
felt “really sick” and wanted to go to the hospital. (R. 222).
According to Salazar, Mr. Galego “didn’t sound well” during this call,
“his speech was impaired somewhat.” (R.
224-25). Salazar had never heard Galego
speak like that before. (R. 225). Salazar told Galego “that it was fine” for
him to go to the hospital but to come straight to probation afterwards. (T. 91-92).
At 2:20 a.m. on January 25, Mr. Galego was examined at Mt. Sinai
Hospital for complaints of vomiting (three times), diarrhea (two times), and
stomach pain (7-8 out of 10).
(R.148-54). He was treated with a
“large ampule” of insulin,[2]
and given intravenous fluids for dehydration. (R. 289, 322).
Dr. Pedro Jose Greer testified about Mr. Galego’s condition on
the night of the alleged violation. Dr.
Greer is a board certified internist, gastroenterologist, and
hepatologist. He is Chief of
Gastroenterology at Mercy Hospital, and the Assistant Dean of Academic Affairs
at the College of Medicine at Florida International University. (R. 271).
In 1984, he founded Camillus House Health Clinic for the homeless. (R. 272).
Dr. Greer had testified only twice before this hearing, both times in
federal court, and not since the early 1990s.[3] (R. 310).
He received no compensation for his testimony at this hearing. (R. 273).
The trial court acknowledged the “impressive” qualifications of this
witness. Id.
Dr. Greer, who has treated hundreds of people for complications
from diabetes, (R. 279), reviewed the records from Mr. Galego’s treatment at
Jackson Memorial Hospital in early January, the records from his treatment at
Mt. Sinai hospital on January 25, and spoke briefly with Mr. Galego before the
hearing. (R. 274). Dr. Greer explained Mt. Sinai’s findings and
treatment as follows:
The blood sugar level of a healthy person is between 74 and
106. On the night of the alleged
violation, Mr. Galego’s blood sugar was 310 milligrams per decimeter, nearly
three times the normal level. (R.
285-86). There were 2,000 milligrams per
decimeter of glucose in his urine, (R. 280); normal urine has no glucose in
it. (R. 281). There were trace proteins, trace blood, and
bacteria with low WBCs in his urine, indicating a possible urinary tract
infection or stone. Id., (R.
292). His blood uriah nitrogen (B.U.N.)
level was elevated, indicating volume depletion, consistent with a stomach
virus. (R. 286, 289).
There were several possible explanations for the spike in Mr.
Galego’s blood sugar level. It could
have been caused by a cold, consistent with Ms. Garcia’s description of
Galego’s symptoms earlier in the day; or by a stomach virus, consistent with
his vomiting, diarrhea and abdominal pain; or by a “change in the metabolism of
the body,” consistent with the urinary tract infection suggested by the blood
work. (R. 279). Robitussin and pasta, such as Mr. Galego
ingested at his cousin’s house, can also spike the blood sugar level. (R. 304).
Furthermore, a spike can itself cause a digestive disorder. (R. 280).
Among the symptoms of a spike in blood sugar are altered mental status,
seizure, and impaired speech. Id.,
(R. 286).
Therefore, the documented spike in Galego’s sugar level and his
volume depletion were entirely consistent with his account to Salazar of having
fallen asleep and vomited on the bus, and with Salazar’s account of Galego’s
impaired speech. (R. 290).
While alcohol in large quantities can also cause a spike in the
blood sugar level, as well as vomiting and speech impairment, (R. 304), Dr.
Greer identified two compelling reasons for ruling out this hypothesis. First, while some of the laboratory results
were alarmingly abnormal, the liver enzymes were “completely normal.” Had Mr. Galego consumed just three or four
beers, his liver enzymes would have been elevated. (R. 288).
Second, the clinical findings were inconsistent with alcohol
consumption. Mr. Galego had been
examined by medical personnel for neurological status, respiratory condition,
breath status, integumentary status,
ears, eyes, nose and throat, psychosocial ability and general appearance (all
within normal limits), (R. 297-98, 311, 323, 325); but there was no suggestion
that he looked, smelled, sounded or acted as if he had consumed alcohol. Based on his extensive medical and hospital
experience, Dr. Greer was “[o]ne hundred percent” certain that had there been any
symptoms of drinking these would have been documented. That is because the possibility of alcohol
ingestion must be considered in deciding upon treatment. (R. 323).
At 6:25 a.m., Mr. Galego was discharged from Mt. Sinai Hospital
stabilized and free of pain. (R.
321). At 9:00 a.m., he reported as
ordered to the probation office, “look[ing] kind of tired,” carrying paperwork
reflecting his intake at Mt. Sinai hospital earlier that morning. (R. 226-227, 235). Mr. Galego explained to Salazar that he had
become sick from diabetes. (R.
220). But Salazar read the Mt. Sinai
records to reflect that Galego had been treated only for “nausea and
heartburn.” (R. 234-36). Had Salazar understood the records to reflect
“some type of serious illness,” then he would not have treated the hospital
trip as a curfew violation. (R. 385).
Salazar interrogated Galego about “the job that he supposedly
went to see” the previous day, but his answers “didn’t make any sense.” (R. 227, 228-29). Although Galego’s Probation Order did not
prohibit him from ingesting alcohol, and although Galego had always appeared
sober, (R. 225-26, 254-55), Salazar administered a drug and alcohol
screen. (R. 229). According to Salazar, the drug screen was
negative, and the urine screen for alcohol was negative, but the saliva screen
for alcohol was positive.[4]
“[F]or some reason,” Salazar mused, “the saliva test is more accurate than the
urine test” – “I have tested many people and the urine always tests negative,
but the saliva, you get them with the saliva one. That’s the one that always comes back
positive.” ( R. 401, 403).
Salazar theorized that alcohol must leave the urine before
leaving the saliva. (R. 401). He admitted that he had no scientific basis
for this theory, nor any empirical basis for his claim that he had been “proven right every single time” – not
one of Salazar’s saliva screens, including Mr. Galego’s, had ever been
submitted for confirmatory testing. (R.
400-05). In other words, Salazar’s
theory was nothing but a guess. Galego
himself denied having consumed any alcohol the night before. (R. 369).
In fact, as Dr. Greer established, Salazar’s alcohol screen was
not reliable. First, Dr. Greer had
reviewed the literature about the screen, which disclosed that it was “not a
direct test of alcohol,” but rather “a surrogate test” which should be
confirmed by a blood test. (R. 282,
284-85). Second, the scientific
literature specifically warns that alcohol screens of diabetics are prone to
false positives; it is the blood of a diabetic which should be tested for alcohol. (R. 290-92).
Nevertheless, Salazar arrested Mr. Galego after conducting his
on-site screen. It was Salazar’s theory
that Galego had gotten sick from drinking alcohol, rendering the violation
“willful.” (R. 247). The basis for this theory was the background
noise when Galego called him at 2:30 in the afternoon: it sounded like “some
type of party, so when he called me telling me that he is sick, I automatically
think if you go to party and at night you are sick, you must have. . .[been]
drinking. . .” (R. 251). The positive alcohol test confirmed Salazar’s
belief in his theory. Id.
The trial court made a finding that Mr. Galego had gotten drunk,
which “may have contributed to” his curfew violation. (R. 455-56).
In support of this finding, the trial court cited Salazar’s “description
of what sounded like a party” in the afternoon of January 24, Galego’s having
vomited later that evening on the bus, Galego’s impaired speech during his call
to Salazar at 1:00 a.m. on January 25, Galego’s failure to have called Salazar
earlier, and Salazar’s alcohol screen, to which it assigned a “small amount of
weight.” (R. 456). The trial court believed that the hospital
visit was just a “sham” to cover-up his drinking. (R. 457). Reminding Mr. Galego that it had previously
acquitted him of missing curfew, and had cautioned him not to miss another, (R.
450), the trial court ruled that this violation was willful and substantial,
and revoked probation. (R. 457).
At sentencing, defense counsel produced Mr. Galego’s cell phone
records, which proved that he had called P.O. Salazar at 10:00 p.m.and again at
10:05 p.m. on the night of the alleged violation. (S.R. 37-41).
Even though the trial court had originally relied upon its finding that
Mr. Galego had not called before 1:00 a.m. in deciding to revoke probation, (R.
456-57), it refused the defense request for a sentence to time served, (S.R.
41), and sentenced Mr. Galego to
twenty-five years in prison. (R. 264-65). This appeal followed. (R. 167).
SUMMARY OF THE ARGUMENT
The defense presented substantial and
uncontroverted expert and documentary evidence that Mr. Galego missed curfew
under the Julia Tuttle Causeway because he was sick with acute complications of
diabetes mellitus, a disease he had suffered for seventeen years.
Two weeks before the alleged violation,
he was treated in the hospital for acute complications; the afternoon of the
violation, he became sick; the night of the violation, he vomited on the bus on
his way to the causeway; later that night, he was treated at Mt. Sinai Hospital
for a dangerous spike in his blood sugar that was consistent with his
symptoms.
The State’s theory was that Mr. Galego missed curfew
because he got drunk, and that his hospitalization was a ruse to cover-up his
partying. The State’s theory rested on this ephemeral
foundation: in a telephone call with P.O. Salazar on the afternoon of the
alleged violation, loud music could be heard in the background; when he called
to report that he was going to the hospital, his speech sounded impaired; and
he tested positive on a notoriously-unreliable unconfirmed alcohol screen
administered eight hours after he went to the hospital.
Negating the State’s theory were the Mt. Sinai medical
records, which included laboratory results and clinical findings that were
inconsistent with alcohol intoxication; testimony from the probation officer
that he had never known Mr. Galego to
consume alcohol; and testimony from Mr. Galego’s cousin that he had consumed no alcohol that
day.
Given the substantial lay, expert and
documentary evidence of Mr. Galego’s sickness from complications of diabetes
mellitus; and the speculative basis for the inference of drinking; the State did
not establish by a preponderance of evidence that the curfew violation was
willful.
ARGUMENT
THE STATE FAILED
TO PROVE THE PROBATIONER’S WILLFULNESS IN MISSING CURFEW, GIVEN THE SUBSTANTIAL
EXPERT AND DOCUMENTARY EVIDENCE THAT THE PROBATIONER HAD BEEN SICK THAT NIGHT
WITH ACUTE COMPLICATIONS FROM DIABETES MELLITUS.
“Trial
courts are not without discretion in revoking probation, see Bernhardt v.
State, 288 So.2d 490, 495 (Fla. 1974),” Stewart v. State, 926 So.2d
413, 414; but may revoke probation “only if the State proves by the greater
weight of the evidence that the defendant willfully and substantially violated
a specific condition of the probation. . .”
Padelt v. State, 793 So.2d 30, 31 (Fla. 2d DCA 2001). While a probation revocation “is informal and
not like a regular trial,. . .there are definitive burdens and standards that
must be met.” Jackson v. State,
622 So.2d 1027, 1029 (Fla. 4th DCA 1993). The State must prove the willful character of
the alleged violation by competent and substantial evidence. Stewart v. State, 926 So.2d at 414. The appropriate standard of review is
whether the trial court abused its discretion in finding the violation to be
willful. Hurst v. State, 941
So.2d 1252, 1253 (Fla. 1st DCA 2006).
Where
a probationer violates a technical condition because of illness or incapacity,
the violation is “not substantial or willful because a mental or physical
illness can be debilitating to the point that a probationer cannot comply with
the terms of probation. Meade v.
State, 799 So.2d 430, 432 (Fla. 1st DCA 2001).[5]
There was substantial and uncontroverted lay, expert and
documentary evidence of non-willfulness.
There was evidence that Mr. Galego had suffered from diabetes for many
years. (R,
274-76). There was expert testimony that
the conditions under the Julia Tuttle Causeway are dangerous to diabetics. (R. 276-78).
There was expert and documentary evidence that, just two weeks before
the alleged curfew violation, Mr. Galego suffered acute complications from his
disease for which he was treated at Jackson Memorial Hospital. (R. 146-55, 331-32). There was evidence that he fell ill again on
the afternoon of the violation. (S.R.
11-25). There was evidence that he had
consumed no alcohol that day. (S.R. 20,
25). There was evidence that he
telephoned his probation officer twice, (S.R. 37-41), as well as two people
under the causeway, to report that he would be late because he had gotten sick
on a public bus. (R. 203-04,
355-56). Bus department records corroborate
his account of getting sick on the bus.
(R. 156-61, 392-94).
Hospital
records and expert testimony establish that he was treated that night at Mt.
Sinai Hospital for acute complications from diabetes mellitus. His blood sugar
was nearly three times that of a healthy person. (R. 285-86).
His urine was flooded with glucose.
(R. 280). Laboratory tests
revealed a possible urinary tract infection or stone as well as volume
depletion. (R. 284, 286, 292). These laboratory findings were entirely
consistent with Mr. Galego’s account of having fallen asleep and vomited on the
bus, and with Salazar’s account of Galego’s speech. (R. 286, 290).
The
State’s theory was that Mr. Galego had missed curfew because he had gotten
drunk. This theory rested on weak and
equivocal inferences from the following: loud music in the background during a
call from Galego earlier in the day; “impaired” speech just before the hospital
visit; and a positive unconfirmed alcohol screen given eight hours after the
hospital visit, a screen which the court acknowledged was unreliable and
deserved little weight. (R. 456).
More
significantly, the State’s theory was negated by the hospital records. Had Mr. Galego been drunk, this would have
been reflected in the clinical examination of his neurological status,
respiratory condition, breath status, ears, eyes, nose and throat, psychosocial
ability and general appearance; it was not.
(R. 297-98, 311, 323, 325). Had
Mr. Galego been drunk, this would have been reflected in the laboratory test of
his liver enzymes; it was not. (R.
258). Furthermore, as Dr. Greer
explained, alcohol screens of diabetics are notoriously unreliable. (R. 282, 284-85, 290-92). Finally, Galego’s cousin Ms. Garcia and
Salazar himself testified that Galego was not a drinker. (S.R. 20, 25, R. 225-26, 254-55). Ms. Garcia swore he had consumed no alcohol
the day he missed curfew. (S.R. 20,
25). And Mr. Galego denied consuming
alcohol. (R. 269).
Thus,
there was substantial and competent evidence that Mr. Galego missed curfew
because he was sick, and sheer guesswork that he was late due to drinking. Under these circumstances, the State has
failed to meet its burden to prove willfulness by the greater weight of the
evidence. See Dean v. State, 948
So.2d 1042 (Fla. 2d DCA 2007) (where there was no direct evidence regarding
probationer’s alcohol consumption, and “the only direct evidence presented was
to the exact contrary,” State failed to prove willful and substantial
violation); Pettus v. State, 836 So.2d 1070 (Fla. 5th DCA
2003) (“equivocal testimony is not sufficient to establish” violation); Stanley
v. State, 922 So.2d 411 (Fla. 5th DCA 2006)(where revocation was
based partly on finding that was contradicted by record, willfulness not established).
Indeed,
courts have reversed revocations for technical violations where the evidence of
incapacity is far less compelling but is, as here, uncontroverted.
For
example, in Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992), a
probationer with “several serious sexually related charges” was required to
complete an MDSO program. 599 So.2d at
254. His probation officer had already
filed one affidavit of violation, which the trial court had dismissed, with a
warning that, in the future, even “minor deviations” could result in
revocation. Id. at 255, n.1. When the defendant nevertheless missed a
scheduled meeting of his MDSO group, he was violated.
At
the hearing, Stevens presented testimony that on the evening of the scheduled
meeting, “he made a series of quixotic and inept efforts to reach it, but was
unable to do so because of a sequence of untoward events which included the
breakdown of the car in which he was riding.”
Id. at 254. As this Court
observed, “[T]here was essentially no evidence that this comedy of errors had
not taken place.” Id.
But
the trial court found, “particularly in light of the previous admonitions,”
that the defendant should have worked harder to “insure his presence” at the
meeting, and revoked his probation. Id.
at 255. In reversing the revocation,
this Court found that: “However inept and negligent his conduct, the record
does not support the conclusion that Stevens willfully or deliberately missed
the meeting.” Id.
Unlike
in Stevens, the evidence of incapacity in this case was hardly a “comedy
of errors” – a chronically sick man suffered acute complications requiring
emergency medical intervention. Just as
in Stevens, the fact that the probationer had been earlier charged with
a curfew violation and warned against re-offense does not strengthen the
State’s present case on the element of willfulness. As in Stevens, while the trial court’s
pique may be “understandable,” its action “is not, however, supported by the
applicable law that probation may be revoked only upon a showing that the
probationer has deliberately and willfully violated its terms.” Id.
Thomas
v. State, 672 So.2d 587 (Fla. 4th DCA 1996),
relied upon Stevens in reversing revocation for discharge from a
residential treatment program for missing curfew. “The uncontroverted evidence” was that the
probationer missed curfew because of a flat tire while returning from an approved
job interview, and eventually walked most of the way back. Id. at 588. He did not call the program, having “spent
all his money on gas for the car,” but he called his parents collect and asked
them to call the program for him. Id. In an opinion by then-Judge Pariente, the
Court held that, “as in Stevens, while defendant’s attempts to comply
may have been inept or negligent, there is no evidence to support a conclusion
that defendant’s failure to return to [the program] on time was the product of
a knowing and willful act. . .Thus, there is no substantial competent evidence
to support a finding that defendant’s discharge from [the program] was due to
willful conduct on his part.” Id.
at 589.
As
in Thomas, there was substantial and uncontroverted evidence that Mr.
Galego attempted to comply with his curfew requirement and attempted to notify
his probation officer of his difficulties in doing so. Countering this evidence of efforts to comply
in spite of illness was only the faintest of inferences that Mr. Galego’s
curfew violation was due to willful conduct on his part. Where, as in this case, in Stevens and
in Thomas, the evidence of incapacity is not controverted by substantial
competent evidence of willfulness, the trial court errs in revoking probation.
CONCLUSION
Based
on the foregoing arguments and authorities, Mr. Galego requests that this
Honorable Court reverse the revocation and reinstate him to probation.
[1]
Salazar
was aware that Mr. Galego, a Cuban immigrant, had no work permit, and that it
would be illegal for him to work without one.
Although he instructs all probationers not to violate the law, he
nevertheless required Mr. Galego to call in daily to report his efforts to
secure employment. (T. 113-116).
[2]Indeed,
he was given too much insulin, initially dropping his blood sugar to the 40s, a
potentially serious mistake. (R. 289).
[3]
Dr. Greer’s testimony was relied upon extensively by the Honorable C. Clyde
Atkins, Southern District of Florida, in Pottinger v. City of Miami, 810
F.Supp. 1551, 1557-58, 1563, n.18 (S.D.Fla. 1992), for the proposition that
homelessness exacerbates physical illnesses of all kinds, specifically those
which require routine medication.
[4]Defense counsel objected to the admission of the saliva screen
result as a discovery violation. (R.
367, 370-71, 372-73). Defense counsel
asserted, and the State did not controvert, that she had previously been “told
it was a urine test,” not a saliva test that was positive for alcohol.
(R. 370-71). Furthermore, the defense
was prejudiced because Dr. Greer’s testimony about the unreliability of on-site
screens in testing diabetics for alcohol concerned urine screens, not saliva
screens. (R. 371, 373). The trial court made the assumption that Dr.
Greer would have provided the same testimony about false positives for saliva
screens of diabetics as he had about urine screens. (R. 452).
During
cross-examination, Salazar revealed for the first time that he had input the
alleged on-site saliva test into his computer, and that the result could be
printed out, although he said no print-out had been provided the prosecution. (R. 397-98). Defense counsel renewed her objection to the
discovery violation: she had been told that “there was no print out as to the
results,” and “that it would be impossible for [her] to get any results.” (R. 399-400).
Once again, the prosecutor did not controvert counsel’s assertions.
[5]See Copeland v. State, 864 So.2d 1197, 1200 (Fla. 1st
DCA 2004) (where paranoid schizophrenic probationer stopped taking his
medication and abandoned his residence, while in the throes of delusion,
revocation reversed as abuse of discretion); Williams v. State, 728
So.2d 287, 288 (Fla. 2d DCA 1999) (failure to file reports and submit to
urinalysis not willful where probationer was “crippled” by severe depression); Johnson v. State, 668 So.2d 240,
241 (Fla. 1st DCA 1996) (revocation based on absence from home
revoked where probationer was in hospital, followed by short stay with mother);
Gibson v. State, 747 So.2d 420, 421 (Fla. 2d DCA 1999) (sick probationer’s decision to move in with mother,
without notifying officer, not willful violation); Jackson v. State, 785
So.2d 524, 526 (Fla. 4th DCA 2000) (insufficient evidence of
willfulness where mentally-ill and pregnant probationer with no air
conditioning in residence believed she was permitted to stand outside); Rainer
v. State, 657 So.2d 1230 (Fla. 4th DCA 1995) (probationer’s failure to complete rehabilitation
due to disciplinary problems attributable to Crohns disease not willful); Meade
v. State, 799 So.2d at 433 (where defendant’s failure to attend two MDSO classes was
partly due to rheumatoid arthritis, revocation reversed); Jacobsen v. State,
536 So.2d 373 (Fla. 2d DCA 1988) (no willful violation that defendant leave
county by specific time when he made reasonable efforts to comply by purchasing
bus ticket, but was unable to depart because he was hospitalized for injuries
received when robbed).
I am curious Mr. Grimm? Why dont you ever spend any research or writing on stories of Victims?
Crawl out from the Julia Tuttle and your new best friends and go talk to the victims of these bridgerats...
Go ahead and talk to their families who are just get up in the morning trying to get by and ask how they feel about what was done to their families??? I think that would call for too much journalism integrety on your part.
Posted by: Valigator | August 30, 2009 at 08:07 AM
while your at it did it ever occur to you to ask Eduardo Galego where he was born? His original conviction was it a deportable offense? You seem to have left out those details... I thought not.
Posted by: Valigator | August 30, 2009 at 08:11 AM
Hi Vag,
When you read a story about an ex-offender who has gotten a raw deal, why do you always allude to "write about the victims"? I mean, seriously, if this were a news article crucifying an offender for an actual crime, you'ld applaud it, but since it's in favor of an offender, well then it's "not good news", huh? Biased-much? Come on Val, how about you conceed that the system isn't always fair and just, and that not all offenders are monsters. Then maybe, you'll here more about the victims. As it stands, it's hard for us offenders to care about much else besides staying out of jail/prison. Jeezus, even when a guys trying to do right he can't catch a break!
Posted by: Damian | March 25, 2011 at 08:43 PM