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
CASE NO. DCA:08‑2011
STATE OF FLORIDA,
APPEAL FROM THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT OF FLORIDA,
IN AND FOR MIAMI-DADE COUNTY
INITIAL BRIEF OF APPELLANT
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
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. (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, 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. (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. “[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.
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).
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.
Based on the foregoing arguments and authorities, Mr. Galego requests that this Honorable Court reverse the revocation and reinstate him to probation.
 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).
Indeed, he was given too much insulin, initially dropping his blood sugar to the 40s, a potentially serious mistake. (R. 289).
 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.
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.
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).