322 So.3d 212
Fla. Dist. Ct. App.2021Background:
- In 2015 Kevin Tomlinson, a real estate broker, was charged with two counts of extortion after threatening two other brokers (the "Jills") to pay large sums to avoid reputational harm and to stop a complaint to the Miami Association of Realtors.
- Tomlinson repeatedly demanded money (initially up to $500,000, later $800,000) and communications were recorded during a controlled call and police surveillance.
- At trial the jury was instructed on the elements of extortion under section 836.05 and given the definition of "maliciously" corresponding to legal malice ("intentionally and without lawful justification").
- Tomlinson requested an instruction defining malice as actual malice (ill will, hatred, spite); the court denied that request.
- The jury convicted Tomlinson on both counts; he received a downward departure sentence. The court of appeal affirmed the conviction and sentence.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether instructing the jury that "maliciously" means legal malice (not actual malice) was fundamental error | State: legal malice is the correct standard for extortion and the instruction was proper | Tomlinson: actual malice is required; using legal malice reduces State's burden and is fundamental error | Court: No fundamental error; "maliciously" in §836.05 means legal malice |
| Whether the State's cross-appeal challenging the downward departure sentence required reversal | State: downward departure was improper | Tomlinson: departure sentence was permissible | Court: Affirmed the downward departure sentence and the conviction |
Key Cases Cited
- Reed v. State, 837 So. 2d 366 (distinguishes legal and actual malice)
- Alonso v. State, 447 So. 2d 1029 (extortion requires legal malice)
- Dudley v. State, 634 So. 2d 1093 (adopts legal malice for extortion)
- Calamia v. State, 125 So. 3d 1007 (holds actual malice required; created district split)
- Carricarte v. State, 384 So. 2d 1261 (explains extortion elements and intent to extort)
- Seese v. State, 955 So. 2d 1145 (interprets "maliciously" as legal malice in related context)