Alvarez v. State

635 So. 2d 1053, 1994 WL 149709

Opinion

635 So.2d 1053 (1994)

Nelson ALVAREZ, Appellant,
v.
STATE of Florida, Appellee.

No. 93-1005.

District Court of Appeal of Florida, Fourth District.

April 27, 1994.

Richard L. Jorandby, Public Defender, and Susan D. Cline, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.

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.