
    SCIENTIFIC PRODUCTS, A DIVISION OF AMERICAN HOSPITAL SUPPLY, INC., Appellant, v. Charles GARCIA and Evelyn Garcia, his wife, Appellees.
    No. 82-1633.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 1983.
    Rehearing Denied Jan. 16, 1984.
    Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman, Miami, for appellant.
    Horton Perse & Ginsberg, Brumer, Cohen, Logan & Kandell and Edward Perse, Miami, for appellees.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   NESBITT, Judge.

The Garcias issued several worthless cheeks to Scientific Products. After unsuccessfully attempting to collect on the checks, Scientific Products turned over the dishonored checks and all other relevant information to the state attorney. The state attorney’s office filed charges against Charles Garcia which were eventually dropped. Subsequently, the Garcias brought the present' action for malicious prosecution against Scientific Products. From a final judgment awarding the plaintiff compensatory and punitive damages, Scientific Products appeals. We reverse.

Section 832.07(l)(a), Florida Statutes (1979) provides a method by which one who receives a worthless check may attempt to collect payment. It states, in part:

Any party holding a worthless check and giving notice in a substantially similar form to that provided above shall be immune from civil liability for the giving of such notice and for proceeding under the forms of such notice.

Having followed the required procedure in the present case, the defendant must be immune from liability.

Even in the absence of statutory immunity, we find that the plaintiff has not shown that the defendant was responsible for instituting or instigating the criminal prosecution as is required in an action for malicious prosecution. Ward v. Allen, 152 Fla. 82, 11 So.2d 193 (1942). The defendant in accordance with section 832.07(l)(a) turned over the information to the state attorney. Having stated the facts as he understood them, and leaving the decision as to prosecution to the state attorney, the defendant is not liable for malicious prosecution. Florida East Coast Ry. v. Groves, 55 Fla. 436, 46 So. 294 (1908).

For the foregoing reasons, we reverse and remand with directions to enter judgment in favor of the defendant.

BASKIN, Judge

(concurring in part, dis- ■ senting in part).

The majority is correct in its determination that section 832.07(l)(a), Florida Statutes (1979), affords Scientific Products immunity from liability for malicious prosecution on worthless check charges and I concur in the result.

I am unable to join in the remainder of the opinion, however, because in my view it conveys an incorrect statement of the present law. The majority’s comment that a defendant who leaves “the decision as to prosecution to the state attorney, ... is not liable for malicious prosecution. Florida East Coast Ry. v. Groves, 55 Fla. 436, 46 So. 294 (1908)” overlooks the qualification of more recent authority. The presumption of probable cause that formerly served as a complete defense to a malicious prosecution action, McKinney v. Dade County, 341 So.2d 1061 (Fla. 3d DCA 1977), was rejected in Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla.1977). Thus, the supreme court held, the filing of an information “merely constitutes evidence of reasonable grounds for the prosecution” and does not conclusively refute the existence of malice. Malice is not legally synonymous with the absence of probable cause. Colonial Stores. See also Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973), cert. denied, 295 So.2d 301 (Fla.1974) (whether plaintiff instituted prosecution upon which action is based is question for the jury); Adler v. Segal, 108 So.2d 773 (Fla. 3d DCA), cert. denied, 113 So.2d 834 (Fla.1959) (question of whether there had been full and fair disclosure to prosecuting attorney is jury question).  