NELSON ALVAREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Nelson Alvarez appeals from a judgment finding him in violation of probation based upon his use of drugs. One of the conditions of Alvarez’s probation was that he “not use intoxicants to excess; nor ... visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, dispensed or used.” A random drug test, which was performed at the direction of Alvarez’s probation officer, disclosed the presence of cocaine in Alvarez’s bloodstream. We reverse because there was no condition in the probation order which required Alvarez to submit to random drug testing, Paterson v. State, 612 So. 2d 692 (Fla. 1st DCA 1993), and because only a court may impose conditions upon which probation can be revoked. Fogarty v. State, 465 So. 2d 625 (Fla. 2d DCA 1985). Furthermore, the trial court’s order finding Alvarez in violation of probation due to his possession and use of marijuana does not conform to the court’s previous oral pronouncement which granted a motion to dismiss as to that count. Paterson, 612 So. 2d at 694. Accordingly, we remand for reimposition of probation.
DELL, C.J., and STONE and KLEIN, JJ., concur.
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Lewis v. State, 874 So. 2d 18 (Fla. 4th DCA 2004)…s on this condition. Not only was this proven by the positive drug test which was not objected to at trial on this ground, but it was also proven by Lewis’s own admission. Therefore, no fundamental error is present. We distinguish Alvarez v. State, 635 So. 2d 1053, 1054 (Fla. 4th DCA 1994), in which this court held that the trial court erred in revoking probation based upon a positive drug test where there was no condition requiring testing in the probation order. That case neither involved fundamental error…
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Moment v. State, 785 So. 2d 717 (Fla. 4th DCA 2001)…e a condition requiring random urinalysis. We reject the state’s argument that the probation officer’s testimony supports the charged violation. Moment would have prevailed on appeal. Rutherford v. Moore, 774 So. 2d 637 (Fla.2000); Alvarez v. State, 635 So. 2d 1053 (Fla. 4th DCA 1994). The petition is granted and the conviction for violation of probation is reversed. FARMER, KLEIN and STEVENSON, JJ., concur.…
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- Paterson v. State, 612 So. 2d 692 (Fla. 1st DCA 1993)
- Fogarty v. State, 465 So. 2d 625 (Fla. 2d DCA 1985)