RAYMOND MCKAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's double jeopardy claim regarding convictions for third-degree murder and vehicular homicide for a single death should be considered, as the record did not demonstrate the sentences resulted from a negotiated plea agreement that would waive such a claim.
Raymond McKay appealed the denial of his postconviction motion, arguing his convictions for third-degree murder and vehicular homicide violated double…
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[*1134] 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.
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Santeris T. McKINNEY v. State, 51 So. 3d 645 (Fla. 1st DCA 2011)…t 1074-75. Appellant nevertheless argues that he cannot be convicted and sentenced for both third-degree murder and fleeing or eluding because the offenses are based upon a single death. In support of this claim, Appellant relies on McKay v. State, 925 So. 2d 1133 (Fla. 2d DCA 2006), Rodriguez v. State, 875 So. 2d 642 (Fla. 2d DCA 2004), and Houser v. State, 474 So. 2d 1193 (Fla.1985). In Houser, the Florida Supreme Court stated that “the legislature did not intend to punish a single homicide under two diffe…
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Tippy McCullough v. State, 230 So. 3d 586 (Fla. 2d DCA 2017)…ter and vehicular manslaughter for causing a single death. Id. at 1196-97. In so holding, the supreme court clarified that the single homicide rule applies regardless of whether two offenses satisfy the Blockburger test. Id. at 1197; McKay v. State, 925 So. 2d 1133, 1134 (Fla. 2d DCA 2006) (remanding to postconviction court because the single homicide rule was violated, even though “vehicular homicide and third-degree murder require different elements of proof’). Since Florida’s statutory codification of the…
Authorities Cited
- Novaton v. State, 634 So. 2d 607 (Fla. 1994)
- City OF Miami v. Juarez, 875 So. 2d 642 (Fla. 3d DCA 2004)
- Rodriguez v. State, 875 So. 2d 642 (Fla. 2d DCA 2004)
- Richardson v. State, 885 So. 2d 999 (Fla. 3d DCA 2004)