LEE v. STATE (2019)

Appellant, Michael Jerome Lee, appeals his conviction and sentence for aggravated assault on a law enforcement officer, arguing that his trial counsel was ineffective for failing to request a jury instruction on reckless driving as a lesser included offense. “Claims of ineffective assistance of counsel are rarely addressed on direct appeal because they normally turn on questions of fact and both sides are entitled to present relevant evidence at an evidentiary hearing.” Barnett v. State, 181 So. 3d 534, 536 (Fla. 1st DCA 2015). In order to prevail on an ineffectiveness claim on direct appeal, an appellant must demonstrate “ ‘ineffectiveness on the face of the record, indisputable prejudice, and an inconceivable tactical explanation for the conduct.’ ” Id. (citation omitted).

As the State argues, Appellant has failed to establish an inconceivable tactical explanation for trial counsel's action of not requesting the instruction at issue, especially in light of the fact that she sought a reckless driving instruction as a lesser included offense on another of Appellant's charged crimes. Indisputable prejudice has also not been established. See Sanders v. State, 946 So. 2d 953, 960 (Fla. 2006) (holding that “the possibility of a jury pardon cannot form the basis for a finding of prejudice” under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that “a claim alleging ineffective assistance of counsel for failure to request an instruction on a lesser-included offense may be summarily denied); see also Johnson v. State, 247 So. 3d 689, 697 (Fla. 1st DCA 2018) (citing Sanders for the proposition that as a matter of law, the possibility of a jury pardon cannot form the basis for a finding of prejudice under Strickland).

Accordingly, we affirm Appellant's judgment and sentence.

Affirmed.

Per Curiam.

B.L. Thomas, C.J., and Lewis and Roberts, JJ., concur.