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District Court of Appeal of Florida,Fifth District.

Kilpatrick HOLTON, Appellant, v. Donald HANDLEY and Gypsy Handley, Appellees.

No. 97-3007.

    Decided: October 30, 1998

Kilpatrick Holton, Lawtey, Pro se. Robert A. Kingsford and Edmund J. Sumnar of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees.

The ill-fated romance between Holton and Gypsy Handley cooled and their relationship became strained.   It is the vagueness of time at which Holton's efforts at reconciliation became unwelcome that brings us to this point.   Gypsy and her father, Donald, made complaints to the State Attorney's Office which resulted in Holton being charged with stalking Gypsy.   After Holton was arrested and while awaiting trial, the State Attorney reviewed letters from Gypsy to Holton and determined that the charges should be nol prossed.   Holton sued Gypsy and her father for malicious prosecution.   The court granted a summary judgment, apparently on the basis that since the State Attorney filed the charges, there must have been a determination of probable cause for the charges.

The only two elements of a cause of action for malicious prosecution not established in this case are that the defendants acted with malice (not before us because it was not the basis of the court's ruling) and that no probable cause for the charge existed.

It appears in the record that although Gypsy's parents had decided to terminate their daughter's relationship with Holton, Gypsy had not.   Her letters and other communications with Holton during the relevant period appear to show that she was encouraging his continued contact.   It is the unresolved issue of whether the Handleys intentionally withheld this and related information from the State Attorney's Office when the Handleys made their complaint to the State Attorney and when the filing decision was made that renders summary judgment inappropriate in this case.   Whether they acted with malice, of course, continues to be an issue.


HARRIS, Judge.

DAUKSCH and PETERSON, JJ., concur.

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