FAROOQ HAYAT MALIK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Malik appeals the denial of his motion to dismiss a felony burglary charge on double jeopardy and collateral estoppel grounds after he pleaded guilty to a related misdemeanor malicious mischief charge. The court affirmed, holding that no double jeopardy violation occurred under the Blockburger test and that Malik was not entitled to collateral estoppel protection because he failed to condition his misdemeanor plea on dismissal of related charges as permitted by Florida criminal procedure rules.
The court held that no double jeopardy violation exists under the Blockburger test because the malicious mischief charge could have been filed as a companion charge in the felony action but was separately filed as a misdemeanor. Additionally, Malik was not entitled to collateral estoppel protection because he failed to condition his guilty plea on dismissal of related offenses as permitted by Florida Rule of Criminal Procedure 3.151(a), and he was aware he had been arrested on a felony affidavit and was on bond in a felony case.
[1] The Blockburger test applies to determine double jeopardy violations.
[2] A malicious mischief charge arising from damage during a burglary can be a companion charge to the burglary, but does not preclude separate prosecution if not consolidate…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“U.S. v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) has restored the Blockwrger test for determining the issue of double jeopardy. Under Block-burger, there is no double jeopardy violation in this case.”
Establishes the legal standard for double jeopardy analysis and its application to reject Malik's double jeopardy claim.
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Join FLexlaw to unlock all legal intelligenceMalik kicked in the door of his wife's home, entered without consent, and assaulted his wife and others. He was arrested under a charging affidavit fo…
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HARRIS, Chief Judge.
Farooq Hayat Malik kicked in the door of his wife’s home, entered without his wife’s consent and, once inside, committed an assault against his wife and others.
He was arrested under a charging affidavit alleging the felony of burglary of a dwelling with an assault therein. He appeared through counsel, pled not guilty to the felony charge and was released on a $7,500 bond.
While this case was pending, a misdemean-or charge of malicious mischief was filed in county court. This charge was based on the damage done by kicking down the door as set out in the preceding paragraph. Malik appeared in county court and pled guilty to that charge.
Shortly before this plea, an information was filed in the original felony case. Malik denies that he was aware of that filing when he pled guilty to the misdemeanor. He moved to dismiss the felony information on the basis of double jeopardy as well as on collateral estoppel grounds in that he was misled into pleading to the misdemeanor, reasonably believing that his plea would conclude the State’s entire action against him. The trial court denied his motion. He appeals. We affirm.
U.S. v. Dixon, — U.S. -, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) has restored the Blockbwrger test for determining the issue of double jeopardy. Under Block-burger, there is no double jeopardy violation in this case. The malicious mischief charge could have been filed as a companion charge in this felony action. Instead, it was separately filed as a misdemeanor in the county court.
The issue of collateral estoppel is controlled by Rule 3.151, Florida Rules of Criminal Procedure. Consolidation would have been proper under subsection (b) had Malik (or the State) requested it. Instead, Malik pled. He is, therefore, bound by subsection (d):
A defendant may plead guilty or nolo con-tendere to a charge of one offense on the condition that other charges on related offenses be dismissed or that no charges of other related offenses be instituted.... [emphasis added].
That was not done in this case. Even though Malik may not have been aware of the filing of the felony information, he was aware that he had been arrested on a felony affidavit and was on bond in a felony case. He cannot ignore this knowledge, seek no clarification, and then claim collateral estoppel. See State v. Feldman, 362 So. 2d 481 (Fla. 1st DCA 1978); State v. Harris, 357 So. 2d 758 (Fla. 4th DCA 1978).
AFFIRMED.
DAUKSCH and GRIFFIN, JJ., concur.
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State v. Rakran Amin Mateen, 678 So. 2d 449 (Fla. 2d DCA 1996)…. 2d 1160 (Fla. 5th DCA 1993). Applying rule 3.151 to the present case, we conclude that Mateen and Hill waived their right to consolidation of the charges because they failed to move for consolidation. See Fla. R.Crim. P. 3.151(b); Malik v. State, 640 So. 2d 224 (Fla. 5th DCA 1994). We do not find merit in Mateen’s argument that he was not aware of the possession of a firearm by a convicted felon charge, and therefore, he did not waive his right to consolidation. The record shows that Mateen and Hill were a…
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Grubbs v. State, 771 So. 2d 49 (Fla. 5th DCA 2000)…ere he pleads guilty or nolo contendere to charges, he is not entitled to a dismissal of subsequently filed charges. State v. Harris, 357 So. 2d 758 (Fla. 4th DCA 1978), approved; State v. Gibson, 682 So. 2d 545 (Fla.1996); see also, Malik v. State, 640 So. 2d 224 (Fla. 5th DCA 1994). AFFIRMED. W. SHARP, and HARRIS, JJ., concur. . Rule 3.151 (c) provides: (c) Dismissal of Related Offenses After Trial. When a defendant has been tried on a charge of 1 of 2 or more related offenses, the charge of every other…
Authorities Cited
- State v. Harris, 357 So. 2d 758 (Fla. 4th DCA 1978)
- State v. Feldman, 362 So. 2d 481 (Fla. 1st DCA 1978)