Opinion
No. 80-1255.
March 25, 1981. Rehearing Denied May 5, 1981.
Appeal from the Circuit Court, Broward County, M. Daniel Futch, Jr., J.
Jerome F. Pollock, Hollywood, for appellant.
Richard A. Sherman of Wicker, Smith, Blomqvist, Davant, Tutan, O'Hara McCoy, Miami, for appellee.
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.