369 So.3d 1142
Fla.2023Background
- In 2015 Kevin Tomlinson filed a grievance with the Miami Association of Realtors against two brokers (“the Jills”) and then met with them demanding payment to make the complaint "go away," threatening to ruin their reputations and careers if they did not pay.
- Tomlinson repeatedly demanded escalating sums (initially $250,000 each, later $400,000, then $800,000), made threats in person and on recorded calls, and emailed MAR about a supposed settlement before again threatening litigation.
- Police recorded calls and Tomlinson was arrested and charged with two counts of extortion under § 836.05, Fla. Stat. (2015), which punishes one who "maliciously threatens" injury to reputation with intent to extort.
- At trial Tomlinson requested a jury instruction defining "maliciously" as requiring ill will/hatred (actual malice); the court instead instructed the jury that "maliciously" means "intentionally and without any lawful justification" (legal malice). The jury convicted on both counts.
- The Third District affirmed, rejecting the Fifth District’s contrary holding in Calamia that "maliciously" requires proof of ill will; the Florida Supreme Court granted review to resolve the conflict and upheld the Third District.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What must the State prove as to "maliciously" in § 836.05 — actual malice (ill will) or legal malice (intent + no lawful justification)? | State: "Maliciously" means intentionally and without lawful justification (legal malice). | Tomlinson: "Maliciously" requires proof of ill will, hatred, spite, or evil intent (actual malice). | Held: "Maliciously" means intentionally and without any lawful justification (legal malice). |
| Does Carricarte v. State require reading "maliciously" as actual malice? | State: Carricarte did not decide this definitional question and is not controlling here. | Tomlinson: Carricarte (and Gaylord citation therein) supports interpreting "maliciously" as ill will. | Held: Carricarte’s citation was dicta on this point; it does not control and does not require an actual-malice standard. |
Key Cases Cited
- Tomlinson v. State, 322 So. 3d 212 (Fla. 3d DCA 2021) (Third DCA adopted legal-malice definition for § 836.05)
- Calamia v. State, 125 So. 3d 1007 (Fla. 5th DCA 2013) (held "maliciously" requires proof of ill will/actual malice)
- Carricarte v. State, 384 So. 2d 1261 (Fla. 1980) (addressed vagueness of § 836.05; cited prior uses of "malice")
- Alonso v. State, 447 So. 2d 1029 (Fla. 4th DCA 1984) (adopted legal-malice definition)
- Dudley v. State, 634 So. 2d 1093 (Fla. 2d DCA 1994) (adopted legal-malice definition)
- State v. Gaylord, 356 So. 2d 313 (Fla. 1978) (used an ill-will definition of malice in a different statutory context)
- Wallace v. State, 26 So. 713 (Fla. 1899) (early extortion prosecution; jury instruction discussed legality of acts)