IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DRINEL JOSEPH,
Appellant,
v. Case No. 5D16-2442
STATE OF FLORIDA,
Appellee.
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Opinion filed March 17, 2017
3.850 Appeal from the Circuit
Court for Orange County,
Alan S. Apte, Judge.
Drinel Joseph, Indiantown, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Carmen F. Corrente,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Drinel Joseph appeals the summary denial of his amended motion for
postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850.
Appellant raised ten grounds in his motion for postconviction relief. We reverse as to
ground five because it is not conclusively refuted by the records attached to the order of
denial. We remand for the postconviction court to either attach records refuting the claims
set forth in ground five or to schedule an evidentiary hearing. We affirm, without further
discussion, the postconviction court’s rulings on the remaining grounds.
Appellant was convicted following a jury trial of two counts of first-degree murder
and sentenced to two concurrent life sentences. He initially presented a false alibi to
police: that he was in Homestead, Florida, where he lived, on the day that his former
girlfriend and her co-worker were murdered in Orlando. However, cell phone usage
evidence presented to the jury demonstrated that Appellant’s phone pinged towers as he
drove from Homestead to Orlando and back to Homestead on the day of the murders.
There was additional cell phone data evidence that placed him near the murder scene
around the time of the murders. At trial, witnesses testified that Appellant was a jealous,
possessive boyfriend who had twice threatened his former girlfriend with a gun. Although
Appellant’s former girlfriend continued to see him occasionally, she was sufficiently
scared of Appellant to kick him out of her apartment, change the locks, and repeatedly
change phone numbers. She also wrote notes, in which she stated that if anything ever
happened to her, Appellant would be the culprit.
In ground five, Appellant alleged that defense counsel was ineffective by
discouraging, and thereby interfering with, his right to testify. Appellant claims that his
counsel incorrectly advised him that the jury would hear the “specific nature” of his prior
convictions, instead of learning only the number of his prior convictions. Affirmative
misadvice regarding impeachment with prior convictions is a cognizable claim. See
Rodriguez v. State, 909 So. 2d 955, 956 (Fla. 3d DCA 2005). Appellant claims that but
for this misadvice, he would have testified, even though his testimony would have
included an admission that he lied to the police about his alibi because he was on
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probation and was not supposed to leave Dade County. He claims that he would have
told the jury that his sole reason for going to Orlando was to purchase half a kilo of cocaine
for resale, as he supplemented his income by selling drugs. Appellant alleges that he
would have testified that he made numerous calls to his cocaine connection as he drove
around Orlando, which would explain why his cell phone pinged towers near the murder
scene. Although he admits that all the other witnesses testified differently, he was
prepared to testify that his relationship with his former girlfriend was good and that she
was not afraid of him. Finally, Appellant claims he would have testified that he was not
near the murder scene at the time of the murders and did not kill the victims. He asserts
that his testimony would have led to an acquittal because, as he claims, the State’s case
was entirely circumstantial and was based on the bad relationship between him and his
former girlfriend.
While we agree with the postconviction court that this proposed testimony may not
have resulted in an acquittal, it was Appellant’s decision whether or not to testify in his
own defense. The trial court did not attach any records to its order of denial to refute
Appellant’s claim set forth in ground five, that his attorney affirmatively misadvised him
not to testify because the nature of his prior offenses, rather than only the number of the
prior offenses, would be made known to the jury. Appellant is entitled to a timely hearing
on ground five, unless portions of the record that conclusively refute this claim can be
attached to a supplemental order of denial.
AFFIRMED in part, REVERSED in part, REMANDED for further proceedings.
PALMER, TORPY, and EDWARDS, JJ., concur.
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