       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          STATE OF FLORIDA,
                              Appellant,

                                    v.

                            CASEY HANSEN,
                               Appellee.

                              No. 4D18-261

                             [May 22, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case No. 15-11625 CF10A.

  Ashley B. Moody, Attorney General, Tallahassee, and Joseph D.
Coronato, Jr., Assistant Attorney General, West Palm Beach, for appellant.

    Kenneth David Padowitz of Kenneth D. Padowitz, P.A., Fort Lauderdale,
for appellee.

CONNER, J.

    The State of Florida appeals the trial court’s final orders withholding
adjudication of guilt with respect to defendant, Casey Hansen (“Hansen”).
Because the trial court misconstrued case law and did not follow the clear
language of the statute defining the crime and punishment for making a
false report of a bomb threat, we reverse the judgment and sentence
imposed for that crime and remand for the trial court to correct the final
orders withholding adjudication of guilt as to the charge of making a false
bomb threat.

                               Background

   Hansen was charged by information with one count of false report of a
bomb threat and one count of misuse of 911 or 911 system. Hansen
entered an open plea of no contest to the charges and moved for a
downward departure of his sentence, seeking a withhold of adjudication of
guilt as to the false report of a bomb charge. As grounds for departure,
Hansen relied on section 921.0026(2)(d), Florida Statutes, asserting he
required specialized treatment for a mental disorder unrelated to
substance abuse, addiction, or for a physical disability.

   Hansen presented testimony in support of the asserted grounds for
departure. In opposition, the State argued that section 790.163, Florida
Statutes, which criminalizes false reporting of a bomb threat, prohibits
withholding adjudication of guilt for the charge as part of a downward
departure. The State acknowledged that while the trial court may
generally withhold adjudication as to other crimes, in this case, the statute
Hansen violated specifically prohibited withholding adjudication of guilt,
and instead, contains within it a particular downward departure
consideration for a reduced or suspended sentence under certain
circumstances which did not apply to the facts of this case.

   The trial court discussed State v. Platt, 203 So. 3d 194 (Fla. 5th DCA
2016), which addressed a downward departure where the defendant was
charged with false report of a bomb threat. Id. The trial court interpreted
Platt to allow the trial court to withhold adjudication of guilt. Relying on
Platt, the trial court granted Hansen’s motion for downward departure over
the State’s objection, withheld adjudication, and sentenced Hansen to five
years of probation. The State gave notice of appeal.

                            Appellate Analysis

    Hansen was charged with false reporting of a bomb threat in violation
of section 790.163, Florida Statutes (2015). The State maintains, as it did
below, that the general statute authorizing downward departure did not
permit the trial court to withhold adjudication of guilt where section
790.163(2) expressly prohibits withholding of adjudication, and was more
recent and more specific than the downward departure statute.

   Section 790.163(1), Florida Statutes (2015) defines the crime of making
a false report “concerning the placing or planting of any bomb, dynamite,
other deadly explosive, or weapon of mass destruction as defined in s.
790.166[.]” § 790.163(1), Fla. Stat. (2015). Section 790.163(2) provides
as follows:

      Notwithstanding any other law, adjudication of guilt or
      imposition of sentence for a violation of this section may not be
      suspended, deferred, or withheld. However, the state attorney
      may move the sentencing court to reduce or suspend the
      sentence of any person who is convicted of a violation of this
      section and who provides substantial assistance in the
      identification, arrest, or conviction of any of his or her
      accomplices, accessories, coconspirators, or principals.

                                     2
§ 790.163(2), Fla. Stat. (emphases added).

    The State focuses on the phrase “notwithstanding any other law” as
reflecting the mandatory nature of the prohibition against withholding
adjudication in connection with imposing a sentence for a false report of a
bomb. The State maintains that section 790.163(2) represents an
exception to the law giving the trial court discretion to withhold
adjudication of guilt. See Fla. R. Crim P. 3.670 (allowing a judge to
withhold an adjudication of guilt if the judge places the defendant on
probation where allowed by law); see also § 775.08435, Fla. Stat. (2015)
(describing the felonies for which adjudication of guilt is prohibited).

   We agree with the State. As we have previously said:

      A specific statute “covering a particular subject matter is
      controlling over a general statutory provision covering the
      same and other subjects in general terms.” Adams v. Culver,
      111 So. 2d 665, 667 (Fla. 1959). “The more specific statute is
      considered to be an exception to the general terms of the more
      comprehensive statute.” Floyd v. Bentley, 496 So. 2d 862, 864
      (Fla. 2d DCA 1986). Next, “when two statutes are in conflict,
      the later promulgated statute should prevail as the last
      expression of legislative intent.” McKendry v. State, 641 So.
      2d 45, 46 (Fla. 1994) (citations omitted).

Rochester v. State, 95 So. 3d 407, 409 (Fla. 4th DCA 2012) (holding that
the statutes which “are the legislature’s last expression of intent and
address the specific sentencing for the type of crime committed in this
case” control over “the general mitigating circumstances for sentencing
any felony (except a capital felony) contained in section 921.0026.”); see
also State v. Warner, 50 So. 3d 99, 100 (Fla. 4th DCA 2010) (the language
of the applicable aggravated fleeing and eluding statute clearly prohibited
a withhold of adjudication for the specific statutory violation and because
it was the later promulgated statute, such prevailed “as the last expression
of legislative intent” regarding sentencing on an aggravated fleeing and
eluding charge); State v. Scriber, 991 So. 2d 969, 970 (Fla. 4th DCA 2008)
(same).

   Here, like the cases above, section 790.163(2) addresses specific
parameters regarding withholding adjudication of guilt and reduced
sentences with regards to the crime of false report of a bomb threat. We
disagree with Hansen’s argument that the statutory authority to suspend
a sentence for the crime includes the authority to withhold adjudication of
guilt. Rule 3.670 makes clear that withholding adjudication of guilt is a


                                     3
function of rendering a judgment as to the commission of a crime by the
defendant. Fla. R. Crim. P. 3.670. The second sentence of section
790.163(2) does not state that adjudication of guilt can be withheld if the
defendant provides substantial assistance in the identification, arrest, or
conviction of any of his or her accomplices, accessories, coconspirators, or
principals; instead, it provides for a reduction or suspension of the
sentence, which pertains to the length of incarceration or supervision.
Additionally, although section 790.163 was initially enacted in 1959, as
compared to section 921.0026, the downward departure statute, which
went into effect in 1998, subsection 2 of section 790.163 was subsequently
added in 2002. 2002 Fla. Sess. Law Serv. Ch. 2002-28 § 1. Thus, section
790.163(2) containing the prohibition against withholding adjudication for
false report of a bomb threat was enacted after section 921.0026, the
downward departure statute. Accordingly, as in the cases cited above,
section 790.163(2) is both the more recent and more specific statutory
provision concerning the trial court’s authority to withhold adjudication of
guilt when presented with a motion for downward departure by a
defendant charged with making a false report of a bomb threat.

    Although the trial court considered Platt, at the sentencing hearing,
Platt does not discuss any interpretation of section 793.163(2) because
that statutory provision was apparently not argued by the state in that
case. Instead, the state’s argument in Platt was that the trial court erred
because (1) it withheld adjudication of guilt for the offense without a
written request from the state as required by sections 775.08435(1)(b)1.
and 2., Florida Statutes (2015), and (2) there was insufficient competent,
substantial evidence to support the grounds asserted for a downward
departure. Id. at 195. The Fifth District agreed with the state that the
grounds for downward departure articulated by the trial court (that the
offense was committed in unsophisticated manner and the defendant’s
cooperation with the state to resolve the offense) were not supported by
competent substantial evidence, reversed the portion of the judgment
withholding adjudication, and remanded for reconsideration. Id. at 197.
However, at the end of the opinion, the Fifth District added a footnote
which stated:

      Although not properly addressed by the State in this appeal,
      on remand, we direct the trial court to section 790.163(2),
      Florida Statutes (2015), “False Report About Planting Bomb,
      Explosive, or Weapon of Mass Destruction; Penalty,” which
      provides: “[n]otwithstanding any other law, adjudication of
      guilt or imposition of sentence for a violation of this section
      may not be suspended, deferred, or withheld.”


                                     4
Id. at 197, n.3.

    The record in this case reflects that, in reviewing Platt, the trial court
inferred that the Fifth District would not have remanded the sentencing
for reconsideration, if a withhold of adjudication were not even a
possibility. However, the Fifth District’s lack of discussion concerning the
merits of section 790.163(2) as precluding a withhold of adjudication does
not mean that the statute does not so preclude. Instead, in our view, the
Fifth District quoted the portion of section 790.163(2) in its footnote
presumably to alert the trial court about the prohibition against
withholding of guilt. As mentioned above, one of the arguments raised in
Platt involved noncompliance with section 775.08435(1)(b)1. and 2.,
Florida Statutes, which makes withholding adjudication of guilt for
second-degree felonies improper where the State has not requested a
withhold in writing. In any event, the Fifth District’s decision not to
discuss the application of section 790.163(2) does not preclude the
conclusion that 790.163(2) plainly prohibits the trial court from
withholding adjudication in such a case and serves as an exception to the
general rule.

    Having determined that the trial court erred by withholding
adjudication of guilt as a permissible downward departure, we reverse the
final orders withholding adjudication of guilt as to the charge of making a
false bomb threat and remand for the trial court to enter a corrected final
order. Because the corrections are ministerial, a resentencing hearing and
Hansen’s presence is not required. Obas v. State, 238 So. 3d 853 (Fla. 4th
DCA 2018) (defendant’s presence not required for correction of errors in
written judgment); Mulligan v. State, 688 So. 2d 984 (Fla. 4th DCA 1997)
(defendant’s presence not required for entry of written reasons for
imposing adult sanctions).

   Reversed and remanded with instructions.

GROSS and FORST, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                      5
