LAWTON COHEN v. STATE OF FLORIDA ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LAWTON COHEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-1342
[November 8, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. 14-3395 CF10A.
Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
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 zig-zagged 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(1)(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.
Analysis
Wanton disregard is a “conscious and intentional indifference to
consequences and with knowledge that damage is likely to be done to
persons or property.” Domoah 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 postconviction relief. 1
Affirmed.
DAMOORGIAN, CONNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 We take no position on the merits of such a claim should one be made.
2