CHARLES MCKINNEY, APPELLANT,
v.
DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, ET AL., APPELLEES
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Charles McKinney appealed a partial summary judgment dismissing his malicious prosecution claim arising from arrests on September 5 and October 8, 1974. The court affirmed summary judgment for the October 8 arrest (where charges were based on an information filed by the state attorney) but reversed as to the September 5 arrest, finding genuine issues of material fact remained.
Summary judgment was properly granted as to the October 8 arrest because the state attorney's filing of an information conclusively established probable cause, eliminating the liability element of malicious prosecution. However, summary judgment was improper as to the September 5 arrest because the record did not support entry of final judgment on that claim.
[1] A prosecuting attorney's filing of an information against a defendant conclusively determines that the evidence is adequate to establish probable cause to put the defenda…
[2] Summary judgment on the issue of liability for malicious prosecution is appropriate when the prosecuting attorney has filed an information against the defendant.
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Join FLexlaw to unlock all legal intelligence“When a prosecuting attorney files an information against a defendant, he conclusively determines that the evidence is adequate to establish probable cause to put the defendant on trial.”
Establishes the legal rule that filing of an information by the state attorney constitutes conclusive determination of probable cause, barring malicious prosecution claims on that basis.
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Join FLexlaw to unlock all legal intelligenceMcKinney was arrested by Sgt. Ruth Cox on September 5 and October 8, 1974. Criminal charges were filed after each arrest and subsequently dismissed fo…
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PER CURIAM.
Plaintiff, Charles McKinney, appeals an adverse partial final summary judgment on the issue of liability with respect to his claim of malicious prosecution.
On September 5 and again on October 8, 1974 McKinney was arrested by defendant Sgt. Ruth Cox. Two sets of criminal charges were filed against him and on October 31, 1974 and April 30, 1975 the charges were dismissed for lack of prosecution. McKinney filed a suit for false arrest and malicious prosecution against Sgt. Cox, her employer, Dade County, and its liability insurer, Appalachian Insurance Company of Providence. Following pretrial discovery, defendants moved for summary judgment on the issue of liability as to McKinney’s claim of malicious prosecution. After hearing argument of counsel, the trial judge entered partial summary judgment for the defendants. McKinney appeals.
McKinney was taken into custody on October 8,1974 pursuant to a capias and information filed by the state attorney for possession and sale of heroin. When a prosecuting attorney files an information against a defendant, he conclusively determines that the evidence is adequate to establish probable cause to put the defendant on trial. See State ex rel. Hardy v. Blount, 261 So. 2d 172 (Fla.1972) and cases cited therein. We, therefore, conclude the trial judge was eminently correct in entering summary judgment on the issue of liability on McKinney’s claim of malicious prosecution with respect to the October 8 arrest.
Appellees candidly admit that the record does not support the entry of summary final judgment with regards to the prosecution resulting from the September 5, 1974 arrest and we reverse that portion of the summary judgment on McKinney’s malicious prosecution claim arising out of the September 5 arrest.
Affirmed in part, reversed in part.
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Colonial Stores, Inc. v. Doyle Wayne Scarbrough, 355 So. 2d 1181 (Fla. 1977)…183] SUNDBERG, Justice. This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, reported at 338 So. 2d 1119, which is alleged to be in conflict with McKinney v. Dade County, 341 So. 2d 1061 (Fla. 3d DCA 1977), on the issue of whether the filing of an information by the state attorney in a criminal prosecution raises, in a subsequent malicious prosecution action based upon that criminal proceeding, a presumption of probable cause to bel…
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S. Bell Tel. & Tel. Co. v. Roper, 438 So. 2d 1046 (Fla. 3d DCA 1983)…e information in this case by the state attorney conclusively determined that there was probable cause to prosecute the plaintiff Roper, thereby barring the malicious prosecution action, based on the controlling authority of McKinney v. Dade County, 341 So. 2d 1061 (Fla. 3d DCA 1977). No appeal was taken from this final judgment by the plaintiff Roper. Subsequently the Florida Supreme Court disapproved the McKinney decision and held that the filing of an information by a state attorney is not a conclusive find…
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Sci. Prods. v. Garcia, 442 So. 2d 1019 (Fla. 3d DCA 1983)…East Coast Ry. v. Groves, 55 Fla. 436, 46 So. 294 (1908)” overlooks the qualification of more recent authority. The presumption of probable cause that formerly served as a complete defense to a malicious prosecution action, McKinney v. Dade County, 341 So. 2d 1061 (Fla. 3d DCA 1977), was rejected in Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181 (Fla.1977). Thus, the supreme court held, the filing of an information “merely constitutes evidence of reasonable grounds for the prosecution” and does not conc…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State of Fla. ex rel. Inga Susan Hardy & Terry Neal Hardy v. Uriel Blount, Jr., 261 So. 2d 172 (Fla. 1972)