McKay v. State, 2D05-4229.
| Decision Date | 19 April 2006 |
| Docket Number | No. 2D05-4229.,2D05-4229. |
| Citation | 925 So.2d 1133 |
| Parties | Raymond McKAY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Raymond McKay appeals the postconviction 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) ().
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) (). 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 postconviction 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.
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