MICHAEL JEROME LEE
v.
STATE OF FLORIDA
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Michael Jerome Lee appeals his conviction for aggravated assault on a law enforcement officer, claiming his trial counsel was ineffective for failing to request a jury instruction on reckless driving as a lesser included offense. The court affirmed the conviction, finding that Lee failed to satisfy the stringent requirements for demonstrating ineffective assistance of counsel on direct appeal.
The court affirmed Lee's conviction, holding that he failed to establish an inconceivable tactical explanation for counsel's action and failed to establish indisputable prejudice as required for an ineffective assistance claim on direct appeal.
[1] On direct appeal of an ineffective assistance of counsel claim, the appellant must demonstrate three elements: ineffectiveness on the face of the record, indisputable pre…
[2] The mere possibility of jury leniency or pardon cannot constitute indisputable prejudice for purposes of an ineffective assistance of counsel claim based on counsel's fai…
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Join FLexlaw to unlock all legal intelligence“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.”
Standard for addressing ineffective assistance claims on direct appeal
Michael Jerome Lee was convicted of aggravated assault on a law enforcement officer. At trial, his counsel did request a reckless driving instruction …
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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 (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.
B.L. THOMAS, C.J., and LEWIS and ROBERTS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________ Andy Thomas, Public Defender, and Greg Caracci, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
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Lee v. Sec'y, Fla. Dep't of Corr. (Baker County) (M.D. Fla. 2025)
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Sanders v. State, 946 So. 2d 953 (Fla. 2006)
- Elliott Barnett v. State, 181 So. 3d 534 (Fla. 1st DCA 2015)
- Johnson v. State, 247 So. 3d 689 (Fla. 1st DCA 2018)