City of Sunrise v. Bradshaw, 84-408

• Citation: 10 Fla. L. Weekly 1455,470 So.2d 804
• Decision Date: 12 June 1985
• Docket Number: No. 84-408,84-408
• Parties: 10 Fla. L. Weekly 1455 CITY OF SUNRISE, Officer Alan Roberts and Officer DeCesare, Appellants, v. Michael Andrew BRADSHAW, Appellee.
• Court: Court of Appeal of Florida (US)

Page 804

470 So.2d 804

10 Fla. L. Weekly 1455

CITY OF SUNRISE, Officer Alan Roberts and Officer DeCesare, Appellants, v. Michael Andrew BRADSHAW, Appellee.

No. 84-408.

District Court of Appeal of Florida,

Fourth District.

June 12, 1985.

Randolph W. Adams and Earl Faircloth of Earl Faircloth, P.A., Fort Lauderdale, for appellants.

Robert L. Spector of Robert L. Spector, P.A., and Mitchell A. Chester, Fort Lauderdale, for appellee.

DOWNEY, Judge.

This case could be a classical example of the old saw that hard facts make bad law if we succumb to the temptation to approach this case from a result oriented point of view.

The facts, in a nutshell, are that appellant, Roberts, while on duty as a police officer in the City of Sunrise, arrested appellee, Bradshaw, who Roberts claimed was about to hit a third party in the head with a beer bottle during a ruckus outside a theater where a prize fight was being televised. Bradshaw claimed he had been struck by the third party without provocation. Thereafter, Roberts filed a probable cause affidavit with the State Attorney setting forth the facts surrounding the arrest. In due course, Bradshaw filed this suit charging Roberts with false arrest, assault and battery, false imprisonment, and malicious prosecution. The jury returned a verdict for Bradshaw on the malicious prosecution count only for $13,500.

Roberts has perfected this appeal, presenting only one point, i.e., contending that the trial court erred in omitting part of the jury instructions on malicious prosecution "which [sic] Court agreed to give at the charge conference." Our initial inclination was to affirm the trial court decision without opinion because, surprising as the result may be to some, a jury question was presented and the trial judge has placed his imprimatur on the verdict by denying the motion for directed verdict and for new trial (which, incidentally, never mentioned the alleged improper instruction as a ground therefor). However, the very poignant and telling dissent authored by our esteemed colleague compels us to write, lest it appear we have taken leave of our senses in view of what has been characterized as an appalling result.

We begin, as we must, by affording the trial court's actions a presumption of correctness. The record submitted contains a list of the Standard Jury Instructions requested by number only, viz, 1.1, 1.2, 2.1, etc. One of those listed is MI 5.1d. In addition, each party submitted each of his requested instructions, including the Standard Instructions, in writing. Among the written requests filed by plaintiff-appellee is the Standard MI 5.1d (absent the bracketed optional portion) which reads:

One is regarded as having instituted a criminal proceeding against another if the proceeding resulted directly and in natural and continuous sequence from his actions, so that it reasonably can be said that, but for his actions, the proceeding would not have been instituted.

The record reflects no written requested instruction MI 5.1d from defendant-appellant. An unreported charge conference was held at which the parties agreed on most of the instructions to be given. After the court finished instructing the jury, he asked counsel: "Is there anything that I omitted?" Each side answered: "No objection." The jury retired but eventually returned with a request for further instructions on the definitions of the malicious prosecution and false imprisonment. The court reinstructed on those matters as he had originally done without objection. Several hours after they had retired, the jury returned again with a question regarding the verdict form. During this colloquy, appellant for the first time asked the court to reinstruct the jury and give them the bracketed portion of MI 5.1d. The court refused to do so, saying appellant had agreed to the instruction he originally gave and twice failed to object.

On appeal, the sole assignment of error is:

Whether the trial court committed reversible error by omitting a part of the standard charge on the action of malicious prosecution which court agreed to give at the charge conference?

Florida Standard Jury Instruction MI 5.1d, as set forth in the manual, reads:

One is regarded as having [instituted] [continued] a [criminal] [civil] proceeding against another if the proceeding resulted directly and in natural and continuous sequence from his actions, so that it reasonably can be said that, but for his actions, the proceeding would not have been [instituted] [continued]. [One is not regarded as having [instituted] [continued] a criminal proceeding against another if in good faith he made a full and fair disclosure of what he knew to the proper authorities and left the decision to [institute] [continue] the prosecution entirely to the judgment of the authorities.]

The introduction to the Standard Jury Instruction, page xxi, explains the purpose of using brackets and parenthesis in jury instructions as follows:

Brackets within the body of a charge indicate that the matter enclosed is optional and should be given as a part of the charge only in certain circumstances, which if not self-evident, are indicated in a Note on use. Parentheses are used within the body of a charge to enclose words which are intended as directions or suggestions to the judge...