Garcia-Rodriguez v. State, Case No. 2D19-2969

Decision Date11 December 2020
Docket NumberCase No. 2D19-2969
Citation313 So.3d 732
Parties Alfonso GARCIA-RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James J. Zonas, Naples, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Laurie Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.

VILLANTI, Judge.

Alfonso Garcia-Rodriguez (Garcia) appeals from an order revoking his probation and the resulting sentence. The trial court found Garcia to have willfully and substantially violated Conditions 32 and 26 of his probation. However, because the State failed to prove that he had violated Condition 32 by visiting a school and failed to prove a willful and substantial violation of Condition 26 by turning in an incomplete driving log, we reverse the order of revocation and remand for vacation of the sentence.

The facts pertinent to this appeal are as follows: Garcia was placed on probation in January 2019. As a condition of his probation, Garcia was required to wear a GPS ankle monitor. On or about April 26, 2019, Garcia's probation officer discovered during a review of the GPS data that Garcia had entered the parking lot of a small strip mall in Cape Coral, drove to the north end and stopped for about seven minutes, then drove to the south end and stopped for "maybe three-and-a-half minutes." Located in the mall near the south end was a small private elementary school. This formed the factual basis for the alleged violation of Condition 32, which prohibits, in pertinent part, "visiting a school."

On April 30, 2019, the probation officer called Garcia and directed him to report to the probation office the next day. This was not Garcia's normal reporting day. Garcia does not speak English and his probation officer does not speak Spanish, so the interview was conducted with the assistance of a fellow probation officer who reportedly speaks Spanish. Garcia brought his April driving log with him to the May 1 meeting and surrendered it to his probation officer. The log, which consisted of a photocopy of what appears to be one side of an approved form, contained entries for most of April 2019, but ended with an entry dated April 24, 2019. The absence of entries for the remaining five days of the month comprised the factual basis for the alleged violation of Condition 26, which requires that the probationer "maintain[ ] a driving log."

A. Violation of Condition 32

On appeal, Garcia argues that the State failed to prove he was "visiting" a school.1 We agree. The order of probation imposes "[a] prohibition on visiting schools, child[-]care facilities, parks, and playgrounds, without prior approval from the offender's supervising officer." The affidavit of violation states that Garcia violated Condition 32 "by visiting a school ... as evidenced by the offender's GPS electronic monitoring location points." At the violation hearing, Garcia's probation officer testified, "I showed him on my computer and he admitted to being parked there; and so then I asked him why were you parked there, and he said he was lost and he needed to ask for directions and he indicated there was a woman under a tree having lunch and was going to ask her for directions." This formed the factual basis for the violation of Condition 32.

As worded, Condition 32 prohibits visiting a school without permission. The order does not define "visiting." "Visiting" is commonly defined as "to go to see or spend time with (someone); call on socially: visit friends." Visit, The American Heritage Dictionary of the English Language (5th ed. 2020), https://www.ahdictionary.com/word/search.html?q=visit (last visited Oct. 16, 2020). To the extent the word "visit" might be subject to other interpretations, its use in this case renders Condition 32 ambiguous, and it is well established that probation may not be revoked based on a violation of a condition that is ambiguous or vague. See Johnson v. State, 701 So. 2d 367, 370 (Fla. 2d DCA 1997) ("[A]ny ambiguity in a condition imposed at sentencing will affect the state's ability at a later date to establish a willful violation of that condition."); Miller v. State, 679 So. 2d 1186, 1186 (Fla. 2d DCA 1996) (condition prohibiting loitering in high drug areas stricken as vague); Wilson v. State, 781 So. 2d 1185, 1187 (Fla. 5th DCA 2001) (condition prohibiting contact with victim was ambiguous as applied); People v. Barajas, 198 Cal.App.4th 748, 131 Cal. Rptr. 3d 412, 422 (2011) (condition prohibiting defendant from being "adjacent" to a school campus was impermissibly vague). In this case, we conclude that parking for three and one-half minutes in a strip mall parking lot near where a private school happens to be located is not, by any reasonable definition, "visiting" a school.

We also note that Condition 32 does not prohibit a probationer from knowingly being in the vicinity of a school or even being in a location from which the probationer can see children while they are attending school (or are in a park or a playground). Such a prohibition might seem reasonable, but we cannot read it into Condition 32. Even if we could, there was no evidence that Garcia was aware that a school existed in that strip mall. In fact, Garcia's probation officer stated that he could not see into the school "from the outside in the daytime," and that there was no outside area (such as a playground) adjacent to the school where children might go. There was simply nothing to look at there.

When considering whether to revoke a defendant's probation, "[t]he trial court must first determine whether the State proved by the greater weight of the evidence that the probationer willfully and substantially violated probation." Savage v. State, 120 So. 3d 619, 621 (Fla. 2d DCA 2013) (citing Del Valle v. State, 80 So. 3d 999, 1012 (Fla. 2011) ). This is also frequently described as a "preponderance" standard. See, e.g., Nieves v. State, 277 So. 3d 745, 747 (Fla. 2d DCA 2019). In this case, we need not examine whether the State proved the violation by the greater weight of the evidence because there was no evidence at all that could support a violation of Condition 32.

B. Violation of Condition 26

Garcia also argues that the State failed to prove that he willfully and substantially violated Condition 26. Again, we agree. The order of probation requires the probationer to "maintain[ ] ... a driving log." "Maintain" is not defined. At the violation hearing, Garcia's probation officer testified that he had instructed Garcia that

any time he is operating a motor vehicle, he must maintain the log by entering the date, time, who was with him, his place of destination, and all of his locations where he's driving and document it in writing on a log, a form that we provide the offenders to document all of the driving to and from every location that they're driving.

Except for "all of his locations where he's driving," this verbal instruction appears to align with the column titles on the approved form. The affidavit of violation states that Garcia violated his probation by failing to maintain a driving log as evidenced by the lack of entries from April 25, 2019, through April 30, 2019.

On appeal, Garcia presents several arguments. First, Garcia argues that he is suffering from significant cognitive decline resulting in confusion and an inability to fully understand how to follow instructions, in this case, with respect to the proper completion of the driving log. This is compounded, he argues, by his inability to read or write English. Second, prior to the date of the alleged violation, he had relied on his son's help to fill out the log. Third, he argues that he made reasonable efforts to comply with Condition 26 and believed he was doing so when he turned in the April log. Fourth, he argues that because he was ordered to report to the probation office on short notice and not on his normally scheduled day, he did not have time to obtain the help he needed to complete the log. All of these arguments have merit.

As to his mental state, Garcia presented unrebutted evidence via the testimony of his court-appointed psychotherapist, as well as Garcia's wife, son, and grandson, that Garcia had been experiencing symptoms of cognitive decline and confusion. In particular, the psychotherapist, who was the state-approved provider of Garcia's court-ordered sex offender treatment program, testified that Garcia had been exhibiting confusion and "cognitive issues in terms of understanding even the interpreter"; explaining by way of example that it had taken three months to get Garcia through the initial intake part of the program, and that she could not discharge him from the sex offender treatment program because of his cognitive issues and because she had been unable to find a Spanish-speaking provider to whom she could refer him for further treatment. The psychotherapist also opined that Garcia's cognitive issues would likely continue to interfere both with his treatment program and his probation.2 This evidence strongly supports Garcia's argument that the alleged violation of Condition 26 was not willful, see Williams v. State, 728 So. 2d 287, 288 (Fla. 2d DCA 1999) ("Either a mental or a physical illness can be debilitating to the point that a probationer cannot comply with the terms of his probation."); Copeland v. State, 864 So. 2d 1197, 1200 (Fla. 1st DCA 2004) (holding that the trial court abused its discretion by revoking a defendant's probation in the face of evidence that the violation was not willful because the defendant was suffering from a mental illness), and the trial court was not at liberty to ignore it, see Coday v. State, 946 So. 2d 988, 1005 (Fla. 2006) ("The expert testimony from the defense could be rejected only if it did not square with other evidence in the case. While we have given trial judges broad discretion in considering unrebutted expert testimony, we have always required...

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