Thomas v. FLA. GAME & WATER COM'N , 627 So. 2d 541 ( 1993 )

627 So. 2d 541 (1993)

Edward Lee THOMAS, Jr., Appellant,
v.
FLORIDA GAME AND FRESH WATER COMMISSION, a subdivision of the State of Florida, and the City of Lake Alfred, a Florida municipality, Appellees.

No. 92-04669.

District Court of Appeal of Florida, Second District.

November 17, 1993.

R. Lee Dorough of Whitaker, Dorough & Petree, Orlando, for appellant.

Judith J. Flanders of Lane, Trohn, Clarke, Bertrand, Vreeland & Jacobsen, Lakeland, for appellee, Florida Game and Fresh Water Com'n.

Clifford J. Schott, Lakeland, for appellee, City of Lake Alfred.

BLUE, Judge.

Edward Lee Thomas, Jr., appeals the trial court's dismissal of his complaint on the basis of sovereign immunity. We agree and reverse.

Thomas was arrested by a Lake Alfred police officer who was accompanied by members of the Florida Game and Fresh Water Commission. The arrest warrant was issued by the Commission for Edward Sam Thomas, a white male, approximately 5'11", 196 pounds, born on January 17, 1966. Thomas alleged he is shorter, weighs 280 pounds, and produced identification at the time of arrest which listed his birth date as December 27, 1966. In his complaint, Thomas contended that probable cause did not exist for his arrest because of the discrepancies between his name, birth date and physical characteristics, and the name, birth date and physical description contained in the warrant. In addition, Thomas' complaint included allegations that a police officer present at the time of arrest knew he was not the person sought by the warrant.

Sovereign immunity does not bar an action for false arrest. Lester v. City of Tavares, 603 So. 2d 18 (Fla. 5th DCA 1992). Although the trial court relied on this court's ruling in Carpenter v. City of St. Petersburg, 547 So. 2d 339 (Fla. 2d DCA), review denied, 554 So. 2d 1167 (Fla. 1989), the present case is distinguishable. Thomas has stated a claim for false arrest or imprisonment while the complaint in Carpenter was founded "on a theory of negligent arrest." 547 So. 2d at 340. Because Thomas' complaint was dismissed on the ground of sovereign immunity, we hold the trial court erred.

We do not reach the City's arguments regarding defects in the service of process and failure to comply with the notice requirement of section 768.28, Florida Statutes (1991). These issues remain for the trial court's consideration on remand.

Reversed and remanded.

PARKER, A.C.J., and LUTEN, CLAIRE K., Associate Judge, concur.