Montero v. Live & Let Live Drug Store , 1999 Fla. App. LEXIS 9067 ( 1999 )

On Motion for Clarification Granted

PER CURIAM.

The opinion of this Court filed on May 19,1999, is vacated and this opinion is substituted in its stead.

In this action for malicious prosecution, we affirm the trial judge’s order granting defendant’s Motion for Directed Verdict and Judgment Notwithstanding the Verdict. The police officer called to the scene of the defendant drugstore interviewed store personnel. A store security guard told the officer that he found the bottle in the plaintiffs pocket. The plaintiff did not dispute this but maintained the bottle was his own property. After the officer’s independent investigation, the officer arrested the plaintiff for the suspected shoplifting. Where the defendant simply gives a statement of fact to the authorities, (assuming he does not know it to be false), and leaves the decision to prosecute solely in the hands of the authorities, who have the opportunity to conduct an independent evaluation, defendant is not regarded as having instigated the criminal action. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352 (Fla.1994).

Accordingly, the order under review is affirmed.