NOE NUNEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of the motion to suppress but struck certain probation conditions.
Appellant pleaded nolo contendere to possession of cocaine and burglary of a conveyance, reserving the right to appeal the denial of his motion to sup…
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THREADGILL, Judge.
Appellant, Noe Nunez, pleaded nolo con-tendere to one count of possession of cocaine and three counts of burglary of a conveyance, reserving his right to appeal the denial of his motion to suppress. We affirm the denial of this motion, but strike certain conditions of probation.
At sentencing the trial court withheld adjudication of guilt on all convictions and placed Nunez on probation for five years. Nunez challenges three of the probation conditions. We strike special conditions (4) and (6) because they were not orally pronounced at the sentencing hearing. See Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989).
Probation condition (9) was not orally pronounced either. That condition, however, which requires the appellant to submit to tests to determine the use of alcohol or controlled substances, is statutorily authorized by section 948.03(1)(j), Florida Statutes (1991). Thus the appellant had constructive notice of this condition. Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992).
Nevertheless, we are unable to uphold the requirement of alcohol testing. The mere use of alcohol is not related to any of the appellant’s offenses and nothing in this record indicates it would relate to future criminality. A condition of probation restricting the appellant’s use of alcohol could not be legally imposed under the circumstances of this case, Biller v. State, 618 So. 2d 734 (Fla.1993); Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993); therefore, testing for the use of alcohol is not warranted. But see Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA), rev. denied, 593 So. 2d 1052 (Fla.1991). Accordingly, we strike the portion of condition (9) requiring random testing for alcohol.
The convictions and sentences are otherwise affirmed.
CAMPBELL, A.C.J., and HALL, J., concur.
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Brock v. State, 688 So. 2d 909 (Fla. 1997)…PER CURIAM. We have for review the opinion in Brock v. State, 667 So. 2d 1014 (Fla. 1st DCA 1996), which certified conflict with the opinion in Nunez v. State, 633 So. 2d 1146 (Fla. 2d DCA 1994). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. In 1993, appellant Clifton Brock pled no contest to grand theft. The trial court withheld adjudication for the offense and placed Brock on probation for two years. While on pr…1 / 3
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Fernandez v. State, 677 So. 2d 332 (Fla. 4th DCA 1996)…of the question of whether it is a general condition immune from a Biller analysis or a special condition subject to a Biller relevancy analysis. On this issue we note the apparent conflict between the first and second districts. In Nunez v. State, 633 So. 2d 1146 (Fla. 2d DCA 1994), the defendant pled nolo conten-dere to possession of cocaine and burglary of a conveyance. Striking a condition of probation requiring alcohol testing, the second district stated: The mere use of alcohol is not related to any of…
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Brock v. State, 667 So. 2d 1014 (Fla. 1st DCA 1996)…riminality. We affirm as to this issue, on the authority of section 948.08(1)(k)(1), Florida Statutes (Supp.1994), and Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA), rev. den., 593 So. 2d 1052 (Fla.1991), but we certify conflict with Nunez v. State, 633 So. 2d 1146 (Fla. 2d DCA 1994). As to Issue II, we find reversible error in the imposition of a public defender’s lien where the appellant was denied adequate notice and an opportunity to contest the amount thereof. § 27.56(7), Fla.Stat. (1993); Fla.R.Crim.P. 3…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Biller v. State, 618 So. 2d 734 (Fla. 1993)
- Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA 1992)
- Hayes v. State, 585 So. 2d 397 (Fla. 1st DCA 1991)
- Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989)
- Oden v. State, 542 So. 2d 479 (Fla. 2d DCA 1989)
- Richardson v. State, 620 So. 2d 257 (Fla. 2d DCA 1993)