McKay v. State

District Court of Appeal of Florida

McKay v. State

925 So. 2d 1133, 2006 Fla. App. LEXIS 5619, 2006 WL 1098270

CourtDistrict Court of Appeal of Florida

DecidedApril 19, 2006

DocketNo. 2D05-4229

StatusPublished

Cited by3 cases

This text of 925 So. 2d 1133 (McKay v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McKay v. State, 925 So. 2d 1133, 2006 Fla. App. LEXIS 5619, 2006 WL 1098270 (Fla. Ct. App. 2006).

Pincite

Opinion

STRINGER, Judge.

Raymond McKay appeals the postcon-viction court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of claims two and three, without comment, and reverse the postconviction court’s denial of claim one.

In claim one of his rule 3.850 motion, McKay alleged his convictions for both third-degree murder and vehicular homicide violated double jeopardy because he caused a single death. The postconviction court denied this claim finding that the offenses did not violate double jeopardy because vehicular homicide and third-degree murder each contained elements that the other offense did not. Although it is true that vehicular homicide and third-degree murder require different elements of proof, the postconviction court’s finding was incorrect. See Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA 2004) (holding only one homicide conviction and sentence may be imposed for a single death).

In response to this court’s order, the State argued McKay was not entitled to relief because his sentences were the result of a negotiated plea agreement. See Novaton v. State, 634 So.2d 607 (Fla.1994) (holding a defendant’s acceptance of sentencing pursuant to a bargained for plea agreement waives any double jeopardy violations). While the State is correct, see Richardson v. State, 885 So.2d 999 (Fla. 3d DCA 2004), there is nothing in the record demonstrating McKay’s plea was the result of a negotiated agreement. Therefore, we reverse the order of the postcon-viction court and remand for either' an evidentiary hearing or attachment of those portions of the record conclusively refuting this claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.

Free access — add to your briefcase to read the full text and ask questions with AI

STRINGER, Judge.

Raymond McKay appeals the postcon-viction court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of claims two and three, without comment, and reverse the postconviction court’s denial of claim one.

In claim one of his rule 3.850 motion, McKay alleged his convictions for both third-degree murder and vehicular homicide violated double jeopardy because he caused a single death. The postconviction court denied this claim finding that the offenses did not violate double jeopardy because vehicular homicide and third-degree murder each contained elements that the other offense did not. Although it is true that vehicular homicide and third-degree murder require different elements of proof, the postconviction court’s finding was incorrect. See Rodriguez v. State, 875 So.2d 642 (Fla. 2d DCA 2004) (holding only one homicide conviction and sentence may be imposed for a single death).

In response to this court’s order, the State argued McKay was not entitled to relief because his sentences were the result of a negotiated plea agreement. See Novaton v. State, 634 So.2d 607 (Fla.1994) (holding a defendant’s acceptance of sentencing pursuant to a bargained for plea agreement waives any double jeopardy violations). While the State is correct, see Richardson v. State, 885 So.2d 999 (Fla. 3d DCA 2004), there is nothing in the record demonstrating McKay’s plea was the result of a negotiated agreement. Therefore, we reverse the order of the postcon-viction court and remand for either' an evidentiary hearing or attachment of those portions of the record conclusively refuting this claim.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.

Cite This Page — Counsel Stack

Bluebook (online)

925 So. 2d 1133, 2006 Fla. App. LEXIS 5619, 2006 WL 1098270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckay-v-state-fladistctapp-2006.

Opinion

Related

Cite This Page — Counsel Stack