Liu v. Mandina

District Court of Appeal of Florida

Decided March 25, 1981

District Court of Appeal of Florida · decided 1981-03-25

Cited by 2 later decisions — most recently January 1994

2 state decisions

Key passage — most relied on by later courts

“[i]t is defendant's burden to establish that the decision to nolle prosequi was based solely on restitution.”

quoted by 2 later decisions, including Alamo Rent-A-Car, Inc. v. Mancusi, Alamo Rent-A-Car, Inc. v. Mancusi

Relies on 387 So. 2d 377 - Cassel v. I. R. E. Financial Corp. · 384 So. 2d 229 - Coleman v. Collins

Good law ✅— No negative treatment on recordhow we know

Decided 1981-03-25

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PER CURIAM.

¶1This is an appeal from a summary judgment in favor of the defendant on a complaint for malicious prosecution.

¶2One 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).

¶3Where 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).

¶4In 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.

¶5There being a genuine issue of a material fact, we reverse.

¶6REVERSED.

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