LEONARD SUSSMAN, APPELLANT,
v.
CITY OF DAYTONA BEACH, VICTOR HOCKENBERRY AND SERGEANT GALLAGHER, APPELLEES
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Leonard Sussman appealed from a directed verdict in his civil action against the City of Daytona Beach for false arrest, false imprisonment, and malicious prosecution arising from his arrest on drug charges that were subsequently dismissed. The appellate court affirmed the directed verdict, holding that absent evidence establishing the absence of probable cause, summary judgment was proper in a malicious prosecution action.
The court affirmed the directed verdict, holding that where no evidence is presented to establish that criminal charges lacked a probable foundation, directed verdict is appropriate. The fact of acquittal or dismissal of criminal charges does not by itself establish the absence of probable cause for malicious prosecution purposes, and the issue at trial was not the guilt or innocence of the defendant but whether the factual information reasonably relied upon by police provided probable cause.
[1] The existence of facts and circumstances sufficient to constitute probable cause is a question of law, while whether those facts and circumstances exist in a particular c…
[2] The dismissal or nolle prosequi of criminal charges does not, by itself, establish the absence of probable cause for purposes of a subsequent civil action for malicious p…
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Join FLexlaw to unlock all legal intelligence“What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact.”
Establishes the legal framework for analyzing probable cause claims in malicious prosecution actions
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Join FLexlaw to unlock all legal intelligenceSussman was arrested by Daytona Beach police officers and charged with unlawful sale of a controlled substance and two counts of unlawful possession o…
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COBB, Chief Judge.
The appellant, Leonard Sussman, appeals from a directed verdict at the conclusion of his action against the City of Daytona Beach1 claiming false arrest, false imprisonment, and malicious prosecu tion. The case arose from an incident which occurred within the City of Daytona Beach when two municipal police officers arrested Sussman and charged him with the unlawful sale of a controlled substance and two counts of unlawful possession of a prescription drug (diazepam and dextropro-poxyphene) in a container other than its original one.2 The state subsequently filed a nolle prosequi on these charges.
At trial Sussman took the stand and gave evidence asserting his innocence. There was no evidence as to the facts upon which the officers relied in making the arrest, since neither officer testified and no investigative file or report was introduced. Nor did the alleged purchaser of the drugs testify. In other words, the sole evidence before the court at the time of the directed verdict was that of the plaintiff, who could not testify as to the nature or extent of the evidence from which the police officers found probable cause to arrest him. Appellant contends that the inferences available from his own testimony entitled him to a jury determination on the issue of probable cause.
In Glass v. Parrish, 51 So. 2d 717, 722 (Fla.1951), the Florida Supreme Court approved the following quotation from an Indiana case:3
What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact.
This is an exposition of the majority view on this question. See 87 A.L.R.2d 183, 188-89. It was reaffirmed in the later Florida Supreme Court case of City of Pensacola v. Owens, 369 So. 2d 328 (Fla.1979).
In the case of Phelan v. City of Coral Gables, 415 So. 2d 1292 (Fla. 3d DCA 1982), it was pointed out that the fact of acquittal or dismissal of criminal charges does not by itself establish the absence of probable cause for purposes of a subsequent civil action for malicious prosecution. In affirming a summary judgment for the defendant city, the Third District stated:
Where no evidence is presented to establish that the criminal charges lacked a probable foundation, summary judgment is proper. Id. at 1294.
That holding is applicable to the instant case, wherein the issue was not the guilt or innocence of Sussman but whether or not the factual information reasonably relied upon by the police officers provided them probable cause to arrest Sussman. No evidence as to what those facts were was adduced at trial, and the judgment below, therefore, is
AFFIRMED.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur. . The two individual defendants shown in the caption were voluntarily dismissed by the plaintiff at the time of pretrial conference.
. The fact that these latter charges were predicated on a statute (§ 893.13(2)(a)7) subsequently determined to be unconstitutional by the Florida Supreme Court does not bear upon the issues of malice and probable cause raised by this appeal. See State v. Walker, 461 So. 2d 108, (Fla.1984).
. Cleveland, C., C. & S.L.R. Co. v. Dixon, 51 Ind.App. 658, 96 N.E. 815, 816 (1911).
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Lashley v. Bowman, 561 So. 2d 406 (Fla. 5th DCA 1990)…case, this determination depends on a disputed issue of fact, specifically whether the food served to appellant was inedible, as she contended, or whether there was “nothing wrong” with it, as appellee argued.2 See Sussman v. City of Daytona Beach, 462 So. 2d 595 (Fla. 5th DCA 1985). In this case, a jury could find that appel-lee did not have probable cause to believe that the appellant was committing fraud on an innkeeper; rather, that the true purpose and intent behind the appellee’s calling the police wa…
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Dorf v. Usher, 514 So. 2d 68 (Fla. 4th DCA 1987)…o. 2d 112 (Fla. 5th DCA 1985). The filing of the action by the state is evidence that there is a reasonable ground to prosecute, despite an acquittal. Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla.1977); Sussman v. City of Daytona Beach, 462 So. 2d 595 (Fla. 5th DCA 1985); Phelan v. City of Coral Gables, 415 So. 2d 1292 (Fla. 3d DCA 1982). See also Bell v. Anderson, 414 So. 2d 550 (Fla. 1st DCA), rev. denied, 424 So. 2d 760 (Fla.1982). In this case there was an investigation by the officer, and th…
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Nw. Fla. Home Health Agency & Susan Cope v. Merrill, 469 So. 2d 893 (Fla. 1st DCA 1985)…. The undisputed evidence of the obligation to report possible violations under the circumstances shown is a sufficiently strong objective manifestation of probable cause to make this decision one for the court. See Sussman v. City of Daytona Beach, 462 So. 2d 595 (Fla. 5th DCA 1985). We also agree with appellants that the evidence was legally insufficient to prove the essential element of malice. Ordinarily malice may be inferred from a finding of want of probable cause and generally is an issue for the jur…
Authorities Cited
- Glass v. Parrish, 51 So.2d 717 (Fla. 1951)
- City OF Pensacola v. Kiplan Carlyle Owens, 369 So. 2d 328 (Fla. 1979)
- State v. Walker, 461 So. 2d 108 (Fla. 1984)
- Phelan v. City OF Coral Gables, 415 So. 2d 1292 (Fla. 3d DCA 1982)