Sweeney v. State
| Decision Date | 16 February 1994 |
| Docket Number | No. 92-2245,92-2245 |
| Citation | 633 So.2d 66 |
| Parties | 19 Fla. L. Weekly D346 Patrick G. SWEENEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Dutko of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellant.
Robert M. Butterworth, Atty. Gen., Tallahassee, and Don M. Rogers, Asst. Atty. Gen., West Palm Beach, for appellee.
Patrick G. Sweeney timely appeals from a final judgment adjudicating him guilty of attempted first degree murder of a law enforcement officer, armed escape, resisting arrest with violence and carrying a concealed firearm. Sweeney raised six separate points on appeal. We affirm all six points, however Point I merits some additional discussion.
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, Weiman heard the sound of glass breaking and an alarm sounding across the street at Casa La Quinta Apartment Complex. He then saw a white male, who later became known to him as Patrick 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. Both parties agree that at this time Officer Weiman did not specifically identify himself as a police officer, tell Sweeney why he was stopped, nor tell him he was under arrest. Detective Weiman did testify that he told Sweeney various times to put his hands against the wall; and when Sweeney didn't, Weiman pushed his shoulder, attempting to spin him around against the wall. Sweeney then resisted, pushed away and retrieved a pistol from a holster hidden in his pants. Detective Weiman testified that Sweeney fired the first shot, and he then chased Sweeney returning fire. Sweeney finally collapsed from being shot.
As his first point on appeal, Sweeney argued that the charge of armed escape was not supported by the evidence, thereby vitiating the charge of attempted first degree felony murder of a law enforcement officer as well, since there would be no underlying felony. The statutory definition of escape is contained in section 944.40, Florida Statutes (1991), which provides in pertinent part:
Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(Emphasis added.) Section 944.02(5), Florida Statutes (1991), defines "prisoner" as:
Any person who is under arrest and in the lawful custody of any law enforcement official, or any person convicted and sentenced by any court and committed to any municipal county jail, or other state prison, prison farm, or penitentiary, or to the custody of the department as provided by law.
(Emphasis added.)
In Brown v. State, 623 So.2d 800 (Fla. 4th DCA 1993), this court held on rehearing that there was insufficient evidence to sustain a defendant's conviction for armed escape. In Brown, after receiving a complaint from two unidentified women, the officer repeatedly asked the defendant to "stop and come back." Id. at 801. Instead of stopping, the defendant kept running, pulled a gun, ignored any request to put the gun down, and fired a shot at the officer. This officer lost track of the defendant. However, another officer in the area located the defendant hiding in a garbage can, and directed him to exit the garbage can and lie down on the ground. When the defendant complied with the officer's direction to step out of the garbage can, he took off running again but was eventually caught. 1 Id.
Our determination in Brown that the evidence was insufficient to sustain a charge of escape rested on the supreme court's analysis in Kyser v. State, 533 So.2d 285, 287 (Fla.1988), of what constitutes an escape. In Kyser, the supreme court recognized that in order for there to be an escape,...
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...to arrest and detain him." Kyser, 533 So.2d at 287 (quoting Melton v. State, 75 So.2d 291, 294 (Fla.1954)); see also Sweeney v. State, 633 So.2d 66, 68 (Fla. 4th DCA 1994). Hebert cannot and does not claim that there was any insufficiency in the evidence regarding factors (1), (3), and (4).......
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