Third District Court of Appeal
State of Florida
Opinion filed June 30, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D18-1982
Lower Tribunal No. F15-16354
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Kevin F. Tomlinson,
Appellant/Cross-Appellee,
vs.
The State of Florida,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Milton
Hirsch, Judge.
Law Offices of John E. Bergendahl, and John E. Bergendahl, for
appellant/cross-appellee.
Ashley Moody, Attorney General, and Brian H. Zack, Assistant
Attorney General, for appellee/cross-appellant.
Before FERNANDEZ, LINDSEY and GORDO, JJ.
GORDO, J.
Kevin Tomlinson appeals his conviction and sentence for extortion and
the State of Florida cross-appeals the imposition of a downward departure
sentence. We affirm the judgment and sentence in all respects and write
solely to address Tomlinson’s argument that the trial court committed
fundamental error in instructing the jury that the elements of extortion
required legal malice rather than actual malice.
FACTS AND PROCEDURAL HISTORY
In August 2015, Kevin Tomlinson was arrested and charged with two
counts of extorting fellow real estate brokers, Jill Hertzberg and Jill Eber (“the
Jills”). The criminal case arose after Tomlinson allegedly discovered that the
Jills were manipulating data in a shared listing service and filed a complaint
against the Jills with the Miami Association of Realtors (“MAR”). Tomlinson
later attempted to extort the Jills by threatening to ruin their careers and to
file a class action against their brokerage firm unless they paid him upwards
of $500,000.00. Between July 15, 2015, and August 7, 2015, Tomlinson
made repeated demands for payment and requested an increased sum of
$800,000.00 to make the MAR complaint “go away.” Following a controlled
call and in-person communications captured via police surveillance,
Tomlinson was arrested and charged. At trial, the jury was instructed on the
elements of extortion and furnished the definition of legal malice. Tomlinson
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was found guilty on both counts of extortion and received a downward
departure sentence.
LEGAL ANALYSIS
Tomlinson contends the trial court committed fundamental error by
denying the defense request to instruct the jury that actual malice was an
element of extortion under section 836.05, Florida Statutes (2020).
Section 836.05 provides:
Whoever, either verbally or by a written or printed
communication, . . . maliciously threatens an injury to
the person, property or reputation of another, or
maliciously threatens to expose another to disgrace,
or to expose any secret affecting another . . . with
intent thereby to extort money or any pecuniary
advantage whatsoever . . . shall be guilty of a felony
of the second degree . . . .
Although malice is an essential element of the crime, the statute does not
define the term.
In law the term malice and its adverbial form
maliciously have two meanings: “legal malice” (also
known as “malice in law”), and “actual malice” (also
known as “malice in fact”). Reed v. State, 837 So. 2d
366, 368 (Fla. 2002). Legal malice means
“wrongfully, intentionally, without legal justification or
excuse,” while actual malice means “ill will, hatred,
spite, an evil intent.” Id.
Seese v. State, 955 So. 2d 1145, 1149 (Fla. 4th DCA 2007). Florida courts
have long adopted the legal malice definition in extortion cases, reasoning:
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[Actual] malice is not contemplated by the crime of
extortion. The basic statutory ingredients are a threat
made maliciously with the intent to require another to
perform an act against his will. The malice
requirement is satisfied if the threat is made “willfully
and purposely to the prejudice and injury of another,
. . . .”
Alonso v. State, 447 So. 2d 1029, 1030 (Fla. 4th DCA 1984) (citing Black’s
Law Dictionary, 4th Ed.); see also Dudley v. State, 634 So. 2d 1093, 1094
(Fla. 2d DCA 1994).
In 2013, however, the Fifth District reluctantly 1 created a conflict with
Alonso and Dudley, holding that “[i]t is fundamental error to use the definition
of legal malice when that of actual malice is appropriate because it reduces
the State’s burden on an essential element of the offense charged.” Calamia
v. State,125 So. 3d 1007, 1011 (Fla. 5th DCA 2013). The court certified a
question of great public importance to the Florida Supreme Court, reading:
“IS THE STATE REQUIRED TO PROVE ACTUAL MALICE TO SUSTAIN A
CONVICTION FOR THE CRIME OF EXTORTION UNDER SECTION
836.05, FLORIDA STATUTES?” Id.
1
“Although we think that the Fourth District’s analysis in Alonso is correct
and legal malice is the more appropriate definition, we are compelled to
follow the supreme court’s directive in Carricarte. Therefore, we hold actual
malice is the correct standard for extortion and certify conflict with Alonso
and Dudley.” Calamia v. State, 125 So. 3d 1007, 1010 (Fla. 5th DCA 2013).
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The Florida Supreme Court declined to exercise its discretionary
jurisdiction to review the case either as an express and direct conflict of
decisions or as a certified question of great public importance. As such, the
conflict remains unresolved. In 2014, the Florida Supreme Court Standard
Jury Instruction Committee amended Florida Standard Jury Instruction 8.23
for “Extortion” to provide alternative definitions for the term, recognizing:
The appellate courts are in conflict as to whether the
extortion statute requires actual malice or legal
malice. In the absence of clarification from the
legislature or the Florida Supreme Court, trial judges
must choose one of the following:
Dudley v. State, 634 So. 2d 1093 (Fla. 2d DCA
1994); Alonso v. State, 447 So. 2d 1029 (Fla. 4th
DCA 1984).
“Maliciously” means intentionally and without any
lawful justification.
Calamia v. State,125 So. 3d 1007 (Fla. 5th DCA
2013).
“Maliciously” means with ill will, hatred, spite, or an
evil intent.
We conclude that the trial court did not commit fundamental error by
instructing the jury on legal malice and, in fact, find that legal malice is the
more appropriate standard to be applied in extortion cases. As explained by
the Florida Supreme Court: “The extortion statute prohibits . . . utterances or
communications which constitute malicious threats to do injury to another’s
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person, reputation, or property. Furthermore, the threats must be made with
the intent to extort money or the intent to compel another to act or refrain
from acting against his will.” Carricarte v. State, 384 So. 2d 1261, 1263 (Fla.
1980) (citations omitted). The conduct that the statute criminalizes is a
malicious threat with the intent “to extort money or any pecuniary advantage”
or to compel the person to do an act against his or her will. § 836.05, Fla.
Stat. “[T]he extortionist need not hate his victim. That kind of malice is not
contemplated by the crime of extortion.” Alonso, 447 So. 2d at 1030. In an
extortion case, the defendant is driven by greed, not hatred. “Taking the text
of [section 836.05] as a whole, and considering its context and the
discernable purposes of the legislature,” we conclude that the statutory term
“maliciously” means legal malice. Seese, 955 So. 2d at 1149.
In so finding, we reject the rationale employed by our sister court in
Calamia. We observe that the court in Calamia itself reasoned that legal
malice is the more appropriate standard, and that post-Calamia, district
courts have continued to rely on Alonso and Dudley. See Dudziak v. State,
149 So. 3d 61 (Fla. 4th DCA 2014); O’Flaherty-Lewis v. State, 230 So. 3d
15 (Fla. 4th DCA 2017). Moreover, we are persuaded by the reasoning in
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Seese, 2 concluding that “the plain meaning of the statutory term maliciously
is legal malice: i.e. ‘wrongfully, intentionally, without legal justification’” in the
aggravated stalking context, where there is no statutory definition for the
term. “Malicious behavior goes beyond intent to cause injury to include
behavior that is ‘without just cause or excuse.’” Johnstone v. State, 298 So.
3d 660, 664 (Fla. 4th DCA 2020) (quoting Khan v. Deutschman, 282 So. 3d
965, 968 (Fla. 1st DCA 2019)).
We conclude that the conduct the extortion statute intends to
criminalize, pertinent in the instant case, is threatening an injury to the
reputation of another with the intent to extort money or compel another to
pay a sum of money against her will intentionally and without a lawful
justification.
Affirmed.
2
This Court has cited Seese with approval in Johnson v. State, 273 So. 3d
62 (Fla. 3d DCA 2018), and Fernandez v. State, 263 So. 3d 224 (Fla. 3d
DCA 2019), both of which are stalking cases.
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