LAWTON COHEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawton Cohen appeals his convictions for second-degree felony fleeing and reckless driving, arguing insufficient evidence and ineffective assistance of counsel. The Fourth District Court of Appeal affirms the convictions, finding competent, substantial evidence of wanton disregard and rejecting the ineffective assistance claim as not meeting the narrow exception for direct appeal review.
The court affirmed both convictions, finding competent, substantial evidence of wanton disregard to support both charges. The ineffective assistance of counsel claim does not meet the narrow exception permitting such claims on direct appeal because prejudice is disputable given the strength of the evidence.
[1] A defendant's actions during a police chase, including running a red light, driving over sidewalks, crossing medians, jumping curbs, and zigzagging across roads, can cons…
[2] Wanton disregard is defined as a conscious and intentional indifference to consequences with knowledge that damage is likely to be done to persons or property.
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Join FLexlaw to unlock all legal intelligence“Wanton disregard is a 'conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.'”
Establishes the legal standard for wanton disregard required for both second-degree fleeing and reckless driving charges
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Join FLexlaw to unlock all legal intelligenceCohen rammed his vehicle through a security gate at Port Everglades and engaged in a fifteen-minute police chase during which he ran red lights, drove…
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Appellant Lawton Cohen appeals his second-degree felony fleeing and misdemeanor reckless driving convictions. We address his insufficiency of the evidence and ineffective assistance of counsel arguments, and affirm for the reasons explained herein.
Background
Appellant rammed his vehicle through a security gate and entered Port Everglades. A fifteen-minute police chase ensued, during which Appellant ran a red light, drove over sidewalks, crossed over medians, jumped over curbs, and zigzagged across roads. At one point, Appellant crossed four lanes of traffic, nearly hitting two civilian vehicles. Appellant was eventually forced off the road by police, after which he backed into a police cruiser, injuring an officer.
Appellant was initially charged with third degree felony fleeing. The State elevated the charge to second degree before trial. Appellant’s attorney overlooked the amendment, only realizing the oversight when conferencing on the final jury instructions with the trial court and State. He argued that he did not defend on the added element of wanton disregard while fleeing. See § 316.1935(2)(a), Fla. Stat. (2016). When the State pointed out that the reckless driving charge had the same wanton disregard language, see § 316.192(l)(a), Fla. Stat. (2016), defense counsel stated he did not care about that charge and that he practically conceded wanton disregard. In an attempt to remedy the failure, the trial court instructed the jury on both second and third degree felony fleeing. The jury found Appellant guilty of second degree felony fleeing.
*20Analysis
Wanton disregard is a “conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.” Damoah v. State, 189 So.3d 316, 320 (Fla. 4th DCA 2016) (quoting Lewek v. State, 702 So.2d 527, 530-31 (Fla. 4th DCA 1997)). The evidence presented at trial, including a video of much of the chase, amounted to competent, substantial evidence to support the jury’s finding of wanton disregard for second degree fleeing and reckless driving.
Generally, ineffective assistance claims may not be raised on direct appeal. Monroe v. State, 191 So.3d 395, 403 (Fla. 2016). A rare exception exists when the ineffectiveness is obvious on the face of the record, the prejudice is indisputable, and tactical explanation is inconceivable. Lesovsky v. State, 198 So.3d 988, 990 (Fla. 4th DCA 2016). Prejudice is disputable on both charges in the .instant case because there was competent, substantial evidence of wanton disregard. Appellant’s ineffective assistance claim does not meet the narrow exception, and we affirm on this issue, as well as on all other issues raised in the appeal.
Conclusion
The trial court’s final judgment is affirmed in all respects, without prejudice to Appellant bringing an action for postcon-viction relief.1
Affirmed.
Damoorgian, Conner and Forst, JJ., concur.
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Canidate v. State, 238 So. 3d 412 (Fla. 4th DCA 2018)…gard for the safety of persons or property.” Id. We have explained that “[w]anton disregard is a ‘conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.’” Cohen v. State, 230 So. 3d 18, 20 (Fla. 4th DCA 2017) (quoting Damoah, 189 So. 3d at 320). The State failed to present evidence to show such a wanton disregard. We examined a similar situation in Steil v. State, 974 So. 2d 589 (Fla. 4th DCA 2008). In Steil, the defendant was…
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Jones v. State (Fla. 4th DCA 2021)…e premeditation. An ineffective assistance claim may be raised on direct appeal only “when the ineffectiveness is obvious on the face of the record, the prejudice is indisputable, and tactical explanation is inconceivable.” Cohen v. State, 230 So. 3d 18, 20 (Fla. 4th DCA 2017). “For example, failure to move for a judgment of acquittal when the State has not proved an essential element of its case, when it is clear that the State could not reopen its case to prove that essential element, amounts…
Authorities Cited
- Monroe v. State, 191 So. 3d 395 (Fla. 2016)
- Lewek v. State, 702 So. 2d 527 (Fla. 4th DCA 1997)
- Damoah v. State, 189 So. 3d 316 (Fla. 4th DCA 2016)
- Brigid Lesovsky v. State, 198 So. 3d 988 (Fla. 4th DCA 2016)