NAN LIU, APPELLANT,
v.
PHILIP J. MANDINA, APPELLEE
Explore caselaw by topic → Browse Nolle Prosequi cases and more on FLexlaw
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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994)…in fact, a bona fide termination. In so ruling, the district court noted that the burden rests on the defendant “to establish that the decision to nolle prosequi was based solely on restitution.” Mancusi, 599 So. 2d at 1012 (quoting Liu v. Mandina, 396 So. 2d 1155, 1156 (Fla. 4th DCA 1981)) (emphasis added). The district court also stated that the jury should have been allowed to review the evidence regarding the nol pros and should have been allowed to hear the proffered testimony regarding the negotiations…1 / 2
-
Alamo Rent-A-Car, Inc. v. Mancusi, 599 So. 2d 1010 (Fla. 4th DCA 1992)…erse of that rule is that a favorable termination exists where a dismissal is of such a nature as to indicate the innocence of the accused. Union Oil v. Watson, 468 So. 2d 349, 353 (Fla. 3d DCA 1985) (citations omitted). Further, in Lui v. Mandina, 396 So. 2d 1155 (Fla. 4th DCA 1981), this court held that “[i]t is defendant’s burden to establish that the decision to nolle prosequi was based solely on restitution.” Id. at 1156. In the instant case, the trial court’s ruling1 was in error because a nolle prose-…1 / 2
Authorities Cited
- Gatto v. Publix Supermarket, Inc., 387 So. 2d 377 (Fla. 3d DCA 1980)
- Marwin S. Cassel v. I. R. E. Fin. Corp., 387 So. 2d 377 (Fla. 3d DCA 1980)
- Coleman v. Palmer W. Collins, 384 So. 2d 229 (Fla. 5th DCA 1980)