Liu v. Mandina

396 So. 2d 1155, 1981 Fla. App. LEXIS 19010

Opinion

PER CURIAM.

This is an appeal from a summary judgment in favor of the defendant on a complaint for malicious prosecution.

One of the six essential elements of malicious prosecution is the bona fide termination of a criminal procedure in plaintiff’s favor. Coleman v. Collins, 384 So.2d 229 (Fla. 5th DCA 1980).

Where the nolle prosequi is obtained by the accused upon a promise of restitution, it is not a bona fide termination in plaintiff’s favor. Gatto v. Publix Supermarket, Inc., 387 So.2d 377 (Fla. 3rd DCA 1980).

In this case it appears that there is still a genuine issue whether the nolle prosequi had been obtained as a result of a promise to pay. Assistant State Attorney Forman and Attorney Stone differ. It is defendant’s burden to establish that the decision to nolle prosequi was based solely on restitution.

There being a genuine issue of a material fact, we reverse.

REVERSED.

MOORE and HURLEY, JJ., and SHARP, G. KENDALL, Associate Judge, concur.