          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-1842
                  _____________________________

MICHAEL JEROME LEE,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Baker County.
James M. Colaw, Judge.

                           May 16, 2019


PER CURIAM.

     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.




                                 2
