Colonial Stores, Inc. v. Scarbrough

• Decision Date: 08 December 1977
• Docket Number: No. 50723,50723
• Citation: 355 So.2d 1181
• Parties: COLONIAL STORES, INC., a Foreign Corporation, doing business as Big Star Food Stores and Clyde D. Carter, Petitioners, v. Doyle Wayne SCARBROUGH, Respondent.
• Court: Florida Supreme Court

Page 1181

355 So.2d 1181

COLONIAL STORES, INC., a Foreign Corporation, doing business as Big Star Food Stores and Clyde D. Carter, Petitioners, v. Doyle Wayne SCARBROUGH, Respondent.

No. 50723.

Supreme Court of Florida.

Dec. 8, 1977.

As Corrected On Denial of Rehearing Feb. 27, 1978.

George L. Hudspeth and James A. Bledsoe, Jr. of Mahoney, Hadlow & Adams, Jacksonville, for petitioners.

Law Offices of Stephen H. Davis, and Richard G. Rumrell, Jacksonville, and Gerald B. Curington of Smathers & Thompson, Miami, for respondent.

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 believe that the criminal defendant was guilty of the offense charged. We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Respondent, Doyle Wayne Scarbrough, filed a two-count complaint against petitioners, Colonial Stores, Inc. and Clyde D. Carter, seeking damages for false imprisonment and malicious prosecution after he was arrested and jailed without bond for the robbery of a Big Star Food Store. Petitioner Clyde D. Carter, the store manager for Big Star Food Store, was one of the two witnesses present during the robbery and allegedly observed the physical characteristics of the robber. Carter had noticed the robber earlier that day when the bandit requested that Carter change a one-hundred-dollar bill for a nearby store, All Jax Auto Parts. Immediately after the robbery, Carter telephoned the police to report the crime. A patrolman arrived at the store in response to the call and, from his interview with the two eye witnesses, prepared a description report. The next morning the City of Jacksonville police received a telephone call from an unidentified caller who stated that the automobile and the individual involved in the robbery were traveling on a particular city street. Respondent asserts that this call was made by Carter. A "be on the look out" was issued for a suspect traveling in a 1955 Ford having a Texas license tag. Later that day the automobile was apprehended by officers of the Jacksonville Beach police department, and the occupant, respondent Scarbrough, was held. The respondent was later arrested without a warrant based upon the description report which described the armed robber in general terms, and the anonymous telephone call.

Earlier that day, Carter visited All Jax Auto Parts to ask whether an employee had been sent to Big Star Food Store to obtain change. Respondent asserts that during this episode Carter described the suspect to an All Jax Auto Parts employee. Carter's assistant manager was later informed that the description was that of one Joseph Tanner, a longtime friend of the All Jax Auto Parts owner. An affidavit was executed by the police and a lineup was thereafter held in which both eye witnesses identified respondent. Based on this affidavit, the state attorney filed a direct information against respondent. Approximately two months thereafter, Joseph Tanner confessed to the robbery. This confession led to a nolle prosequi of respondent's case. Scarbrough was incarcerated continuously from the time of his arrest until the charge was nolle prossed. Incarceration apparently contributed to respondent's unstable personality. He became severely depressed, lost touch with his family while in prison, and eventually tried to commit suicide after his release.

Respondent brought suit for false imprisonment and malicious prosecution. After the trial court's denial of petitioners' motion for a directed verdict with respect to both the false imprisonment and malicious prosecution counts the case went to the jury. The trial court instructed the jury that the filing of an information against respondent gave rise to a presumption of probable cause. The jury returned a general verdict in favor of respondent and a final judgment was entered by the court.

Petitioners appealed to the District Court of Appeal, First District, arguing that the trial court erred in failing to direct a verdict in their favor with respect to the malicious prosecution count in that the state attorney's filing of an information against respondent created a presumption of probable cause to which the trial court failed to accord proper effect. The district court disagreed, holding that no presumption of probable cause arose from the filing of an information. The court accepted respondent's argument on cross-appeal, that the trial court erred in charging the jury that the filing of an information against him gave rise to a presumption of probable cause. However, the district court failed to find reversible error as to respondent on this ground. With respect to petitioners, the court held that as the jury charge was in petitioners' favor, it merely constituted harmless error.

Although the jury was charged separately as to the malicious prosecution and the false imprisonment counts, it returned a general verdict for respondent. Consequently, it was impossible to determine the count(s) upon which the judgment was based. Petitioners contended that under the circumstances if there were error as to either count the district court should overturn the judgment, as the jury may have based its verdict on the faulty count. The district court rejected this contention, holding that as the judgment could be sustained on sufficient evidence of malicious prosecution, it would affirm the judgment without deciding the sufficiency of evidence to sustain the false imprisonment count.

For the reasons hereinafter enunciated, we hereby approve the district court's decision.

In support of their argument on appeal that a presumption of probable cause should have arisen from the state attorney's decision to prosecute respondent Scarbrough, petitioners relied upon this Court's decision in Gallucci v. Milavic, 100 So.2d 375 (Fla.1958). In Gallucci, we held that in a malicious prosecution suit a presumption arises from a magistrate's finding of probable cause which is conclusive, absent fraud or other corrupt means employed by the person initiating the prosecution. However, the district court declined to accord the Gallucci presumption to a prosecutor's decision. In so doing, the district court distinguished Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942), and Meade v. Super Test Sales, Inc., 306 So.2d 211 (Fla. 2d DCA 1975). The Meade court merely found that there was reasonable cause for the state attorney's decision to prosecute. Similarly, Ward v. Allen held that the filing of an information constitutes evidence tending to show grounds for prosecution, but it did not give such evidence a presumptive effect.

Subsequent to rendition of the district court's opinion in the case at bar, the District Court of Appeal, Third District, decided the case of McKinney v. Dade County, supra, upon which conflict herein is based. There, the district court held that when a prosecuting attorney files an information against a defendant, he conclusively determines that the evidence is adequate to establish probable cause. Accordingly, the district court affirmed a trial court's entry of summary judgment in favor of the defendant in a malicious prosecution suit, on the issue of liability. The McKinney court relied upon this Court's decision in State ex rel. Hardy v. Blount, 261 So.2d 172 (Fla.1972), which held that the finding of probable cause by a state attorney, evinced by the filing of an information, has the same practical effect as an identical finding by a magistrate. This is so because in either case the determination has been made by a constitutional officer. Article V, Sections 5, 6, and 17, Florida Constitution. Hardy, however, fails to constitute a valid basis for petitioners' position in the present case for two reasons: First, in Gerstein v. Pugh, 420 U.S. 103, 106, 116-117, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the United States Supreme Court overturned Hardy, refusing to find the prosecutor's filing of an information to be the constitutional equivalent of a magistrate's finding of probable cause. Second, Hardy is factually distinguishable from the case at bar because it involved the right of a pre-trial detainee, arrested without a warrant and charged by information, to a judicial probable cause determination. For the policy reasons enunciated in Gerstein, we decline to accord to a prosecutor's decision the presumptive effect in a malicious prosecution action proposed by petitioners.

In Gerstein, the Supreme Court noted that "a prosecutor's responsibility to law enforcement is inconsistent with the constitutional role of a neutral and detached magistrate." Id. at 117, 95 S.Ct. at 865, citing Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Accord, Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972). The reason for this separation of functions was expressed by Mr. Justice Frankfurter:

Zeal in tracking down crime is not in itself assurance of soberness of judgment. . . . The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is . . . divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication.

McNabb v. United States, 318 U.S. 332, 343, 63 S.Ct. 608, 614, 87 L.Ed. 819 (1943).

Our holding today does not constitute a degradation of the role of the prosecutor, but rather is a recognition of the...