EDUARDO GALEGO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Eduardo Galego, a sex offender on probation, was found to have violated his curfew and sentenced to 25 years in prison. The court reversed, holding that the State failed to prove by a preponderance of the evidence that Galego willfully violated his probation, as unrebutted expert testimony demonstrated his missed curfew resulted from diabetes-related illness, not drinking as the State alleged.
The State failed to satisfy its burden of proof by a preponderance of the evidence. Based on unrebutted expert testimony from Dr. Greer showing that Galego's missed curfew resulted from diabetes-related illness complications rather than willful drinking, the probation violation finding was not supported by substantial and competent evidence.
[1] The State bears the burden to prove by the greater weight of the evidence that a probation violation is willful and substantial.
[2] A probation violation is not proven by sheer conjecture when the State relies on speculation rather than substantial and competent evidence.
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Join FLexlaw to unlock all legal intelligence“It is the State's burden to prove, by the greater weight of the evidence, that a probation violation is a willful and substantial one.”
Establishes the State's burden of proof in probation violation cases
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Join FLexlaw to unlock all legal intelligenceGalego, a probationer living under the Julia Tuttle Causeway, missed his 10 p.m. curfew by three hours on January 24, 2008. He attempted to call his p…
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Eduardo Galego was a sex offender on probation who was living under the Julia Tuttle Causeway. On the night of January 24, 2008, Galego missed his 10 p.m. curfew by three hours. Galego’s cell phone records show that he had attempted to call his probation officer, Lorenzo Salazar, twice, at 10:00 p.m. and 10:05 p.m., but did not leave a message. At 1:00 a.m., Galego spoke to Salazar and explained that he was ill, had fallen asleep on a bus, and had missed his bus stop. From 2:20 a.m. until 6:25 a.m., Galego was at the Mount Sinai Hospital emergency room being treated for his illness. Galego was found to have violated his probation and sentenced to twenty-five years in prison. We reverse.
*153The State offered evidence to support Salazar’s theory that Galego had missed curfew willfully because he had spent the afternoon drinking at a party. First, Salazar testified that when he had spoken with Galego that afternoon, he had heard “some music” and “a lot of noise and other people in the background,” which gave him the impression that Galego was at a party. On cross-examination, Salazar admitted that this was “just a guess.” Second, the reason Galego gave for missing his curfew was that he had fallen asleep on a bus. Third, Salazar stated that when Galego had said that he felt “really sick” and wanted to go to the hospital, he “didn’t sound well,” and “his speech was impaired somewhat.” Finally, when Salazar interrogated Galego the next morning, his answers “didn’t make any sense,” and a saliva screen for alcohol tested positive.1 Based on this evidence and the allegation that Galego had failed to call Salazar until three hours after his curfew, the very able trial judge concluded that Galego’s hospital visit was meant to cover up his drinking.
The court made this ruling despite referring to the testimony of Galego’s expert witness, Dr. Pedro Jose Greer, as “honest and fourth coming [sic].” Dr. Greer,2 a renowned physician in Miami, cited voluminous medical data completely antipodean to Salazar’s hypothesis that Galego had been drinking. Although Dr. Greer had never met Galego prior to the hearing at which he testified, he had reviewed the lab results from Galego’s emergency room visit the night in question.
Q [D]id you see anything in those medical records that indicated that Mr. Gallego [sic] had anything to drink or was it [sic] drunk that night?
A There was no documentation in the chart or anything of that nature.
Q And based on your experience as a doctor, there probably would be, right?
A One hundred percent. You would always document that....
To the contrary, Dr. Greer testified that results from tests of Galego’s liver showed that his “liver enzymes were completely normal,” whereas in someone who had been drinking, “[y]ou would expect A.S.T. That’s a very sensitive enzyme ... [that] would generally bump up with alcohol.” Dr. Greer noted that Galego’s records showed no documentation of elevated liver enzymes, nor did they show that he smelled like alcohol.
Dr. Greer testified that Galego’s impaired speech and odd behavior could be explained by the fact that he has suffered from diabetes for the past seventeen years: if a diabetic has a cold, a virus, or any other infection, such as the one that prompted Galego’s cousin to give him Robitussin, their blood sugar would become elevated, as was Galego’s,3 and they would suffer “a change in their mental status, a change in their normal behavior, maybe their speech is slurred, maybe they’re confused, maybe they can’t answer a question or stay concentrated.” This “[a]ltered mental status” would include seizures and *154not understanding what was going on. Additionally, Dr. Greer said that Galego “was a little mind depleted as you can tell by his B.U.N. or BUN [Blood Urea Nitrogen].” Furthermore, Dr. Greer testified that Galego’s elevated B.U.N. and “mildly elevated lite pace with abnormal hema-lades” showed that “he was a little volume depleted” and had a stomach virus, which explained why he fell asleep on the bus.4
Dr. Greer further testified that Galego’s urinalysis “showed some bacteria with low WBCs, [which] could mean he [had] a UTI or a stone” and that diabetics with a urinary tract infection “get a lot of a false positive readings” when their urine is tested for alcohol. He said that the test Salazar used is not a direct test of alcohol, and the correct procedure would have been to use “[a] pure blood alcohol [test]” to confirm it. No blood alcohol test was given to Galego.
In addition to Dr. Greer’s testimony, Galego’s cousin testified that Galego “doesn’t drink” and that she had not known him to drink anywhere. Salazar himself testified that he had never smelled alcohol on Galego’s breath and had always found him to be sober.
It is the State’s burden to prove, by the greater weight of the evidence, that a probation violation is a willful and substantial one. Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001). However, rather than provide substantial and competent evidence to prove its case, here the State relied upon sheer conjecture. See Dean v. State, 948 So.2d 1042, 1045 (Fla. 2d DCA 2007) (holding that where there was no direct evidence regarding probationer’s alcohol consumption, and “the only direct evidence presented was to the exact contrary,” the State failed to prove willful and substantial violation). Based on Dr. Greer’s unrebutted testimony, which showed that Galego missed his curfew because of issues with diabetes and not because he had been drinking, we hold that the State did not, as a matter of law, satisfy its burden to prove the probation violation by a preponderance of the evidence.
This opinion shall take effect immediately, notwithstanding any motions for rehearing.
Reversed and remanded.
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del Valle v. State, 80 So. 3d 999 (Fla. 2011)…ws of Fla. . In fact, all of the district courts, including those that hold that the State does not bear the burden to establish ability to pay, hold that the State must prove a willful violation of probation in other contexts. See Galego v. State, 27 So. 3d 152, 154 (Fla. 3d DCA 2010) (“It is the State's burden to prove, by the greater weight of the evidence, that a probation violation is a willful and substantial one.”); Jenkins v. State, 963 So. 2d 311, 313 (Fla. 4th DCA 2007) (“Probation may be revoked…
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Person v. State, 83 So. 3d 940 (Fla. 3d DCA 2012)…n of probation; see Garcia v. State, 73 So. 3d 823 (Fla. 5th DCA 2011); Wilson v. State, 506 So. 2d 1170 (Fla. 3d DCA 1987), and (b) there was insufficient evidence as to whether he had in fact failed to be “gainfully employed.” See Galego v. State, 27 So. 3d 152 (Fla. 3d DCA 2010); Mitchell v. State, 607 So. 2d 486 (Fla. 3d DCA 1992). Accordingly, violations 2, 3, and 5 are stricken from the order revoking probation. We do find that the remaining two violations, driving without a valid license and failing…
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- Hines v. State, 789 So. 2d 1085 (Fla. 2d DCA 2001)
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