Carson v. Brookshire , 440 So. 2d 614 ( 1983 )

WENTWORTH, Judge.

Appellants seek review of a judgment whereby appellee was awarded damages for false arrest/false imprisonment, contending that the record conclusively establishes probable cause to arrest. We find that the record contains conflicting evidence and that the issue was properly submitted to the jury, and we therefore affirm the order appealed.

Appellee was arrested after a deputy sheriff responded to a complaint alleging that appellee had discharged a firearm into the complainant’s vehicle. Testimony presented at trial indicated that more than two hours had elapsed from the time of the alleged offense until the complaint was made, and that the deputy may have been aware that the complainant had made numerous prior complaints. Upon verifying the complaint, and prior to appellee’s arrest, the deputy inspected a shattered window, through which a bullet had allegedly passed, in the complainant’s vehicle. Various witnesses presented conflicting testimony as to whether observation of the window revealed a bullet hole, and a photograph thereof was admitted into evidence.

Probable cause to arrest may be a defense in a false imprisonment action. See Lee v. Geiger, 419 So.2d 717 (Fla. 1st DCA 1980). But the existence of probable cause is a “common-sense, practical question” dependent upon the totality of the circumstances involved. See Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The circumstances of the present case require the resolution of conflicting evidence, and the motion for directed verdict at the close of the evidence was therefore properly denied and the case submitted to the jury.

The order appealed is affirmed.

JOANOS, J., concurs. LARRY G. SMITH, J., specially concurs with opinion.