Sweeney v. State, No. 98-1990

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM.
• Citation: 722 So.2d 928
• Parties: Patrick SWEENEY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 98-1990
• Decision Date: 16 December 1998

722 So.2d 928

Patrick SWEENEY, Appellant,
v.
STATE of Florida, Appellee

No. 98-1990

District Court of Appeal of Florida, Fourth District.

December 16, 1998.

Rehearing Denied January 15, 1999.

722 So.2d 929

Bruce Rogow and Beverly A. Pohl of Bruce S. Rogow, P.A., Fort Lauderedale, for appellant

Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Patrick G. Sweeney appeals from a trial court's order that denied his rule 3.850 motion. Sweeney's postconviction motion was prompted by the supreme court's decision in Thompson v. State, 695 So.2d 691 (Fla.1997), which resolved a conflict among two district courts of appeal¹ and held that the knowledge of the victim's status as a law enforcement officer is a necessary element of the offense of attempted murder of a law enforcement officer. Sweeney argues that Thompson requires retroactive application on collateral review. We disagree.

To reiterate the background facts of this case, on September 15, 1991, Officer Andrew Weiman, who was dressed in full police uniform, was working an off-duty detail as a security guard at the Sea Haven Apartment Complex in Pompano Beach. While patrolling the grounds of the Sea Haven, he heard the sound of glass breaking and an alarm sounding across the street at Casa La Quinta Apartment Complex. He then saw Sweeney running east on the fourth floor walkway of Casa La Quinta. Weiman subsequently ran across the street, where he encountered Sweeney in the alcove underneath the stairwell leading to the floors above.

Although Officer Weiman did not specifically identify himself as a police officer, his uniform consisted of a name tag, a badge, shoulder stripes, a police radio, a service revolver, a flashlight, a bullet proof vest. He did not tell Sweeney why he was stopped, nor tell him he was under arrest, but did tell him various times to put his hands against the wall. Sweeney resisted, retrieved a pistol from a holster hidden in his pants, and fired at Officer Weiman. Officer Weiman shot back, hitting Sweeney, who finally collapsed.

In October 1991, Sweeney was charged with attempted first degree murder of a law enforcement officer, armed escape, attempted burglary, resisting arrest with violence, armed trespassing on property other than a structure or conveyance, and carrying a concealed firearm. At trial, the court refused to instruct the jury, per Sweeney's request, that the state had to prove beyond a reasonable doubt that the victim was an officer and that Sweeney knew of same. He was convicted of attempted first degree felony murder of a law enforcement officer with a firearm, and

722 So.2d 930

sentenced under sections 784.07(3)² and 775.0825, Florida Statutes (1991) to a total of twenty-five years imprisonment, with a twenty-five year minimum mandatory. Sweeney appealed from his conviction, and this court affirmed. See Sweeney v. State, 633 So.2d 66 (Fla. 4th DCA 1994)

The issue raised in the instant motion is whether Thompson is retroactive. Hence, the three-prong test of Witt v. State, 387 So.2d 922 (Fla.1980) applies. Under Witt, for a case to apply retroactively, it must (1) emanate from the United States Supreme Court or the Florida Supreme Court, (2) be constitutional in nature, and (3)...