Tomlinson v. State
| Docket Number | SC2021-1204 |
| Decision Date | 24 August 2023 |
| Parties | KEVIN F. TOMLINSON, Petitioner, v. STATE OF FLORIDA, Respondent. |
| Court | Florida Supreme Court |
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal Direct Conflict of Decisions Third District - Case No. 3D18-1982 (Miami-Dade County)
John E. Bergendahl of Law Offices of John E. Bergendahl, Miami Florida; and Daniel Tibbitt of Daniel J. Tibbitt, P.A., North Miami, Florida, for Petitioner
Ashley Moody, Attorney General, Tallahassee, Florida, Michael W Mervine, Bureau Chief, Miami, Florida, and Kseniya Smychkouskaya, Assistant Attorney General, Miami, Florida for Respondent
Kevin Tomlinson threatened to ruin the reputation of two fellow real estate brokers unless they paid him. Must the State prove that Tomlinson made this threat with hatred for the complainants in seeking a conviction under Florida's extortion law, section 836.05, Florida Statutes (2015)? In the decision before us, the Third District Court of Appeal said no, holding that section 836.05 requires the State to prove that the defendant made a threat "intentionally and without a lawful justification." Tomlinson v. State, 322 So.3d 212, 216 (Fla. 3d DCA 2021). That expressly and directly conflicts with the Fifth District Court of Appeal's decision in Calamia v. State, 125 So.3d 1007 (Fla. 5th DCA 2013). There, citing our decision in Carricarte v. State, 384 So.2d 1261 (Fla. 1980), the Fifth District concluded that "maliciously" in section 836.05, Florida Statutes (2009), requires proof that the defendant acted with ill will, hatred, spite, or an evil intent. Id. at 1010. We agree with the Third District, and therefore approve its decision in Tomlinson and disapprove the Fifth District's decision in Calamia.[1]
In April 2015, Kevin Tomlinson filed a complaint with the Miami Association of Realtors (MAR) alleging that two brokers, Jill Hertzberg and Jill Eber, known in the market as "the Jills," were preventing other brokers from courting their clients by manipulating data in a listing service that MAR operated. In their response to the complaint, the Jills took responsibility for altering the data. Nonetheless, the grievance process continued. In July, Tomlinson contacted Hertzberg and asked to meet. At the meeting, Tomlinson told Hertzberg that he could "make [the MAR complaint] go away," but that Hertzberg and Eber each had to pay Tomlinson $250,000 for him to do so. Otherwise, Tomlinson was "going to ruin [Hertzberg's] career" and "ruin the Jills" by, among other things, "call[ing] the Wall Street Journal" and convincing the Florida Department of Business and Professional Regulation to take away the Jills' real estate licenses. Tomlinson made similar threats on a phone call with Eber while he was in Hertzberg's presence. On the way out of that meeting, Tomlinson lowered his total asking price to $400,000.
In the following days, Tomlinson continued to threaten the Jills. They eventually went to the police, who counseled Hertzberg to arrange recorded calls with Tomlinson. During these recorded calls, Tomlinson asked Hertzberg to contact his attorney to discuss a settlement so that he could stop the complaint he filed from going before MAR. He told her that her reputation was at risk, and that he did not want her "beautiful career to be marred." He also mentioned that other brokers were interested in filing similar complaints, but that he had no desire to "corral all these people who want to bring down the Jills."
On August 5, on a recorded line, Hertzberg told Tomlinson that they would pay him the asking price, $400,000. The next day, Tomlinson arrived at Hertzberg's home, but now he threatened a class action suit, which would "end[] [Hertzberg's] career." For Tomlinson to stop the suit from proceeding, he now needed $800,000 total, and refused a $400,000 check tendered by Hertzberg.
After that meeting, Tomlinson emailed Hertzberg and members of MAR. He wrote that he had reached a tentative settlement with the Jills and requested an expeditious close to their grievance case. But the next day, Tomlinson again threatened a class action and swore off any potential settlement, sending another email that asked MAR to "proceed with the grievance."
The police subsequently arrested Tomlinson and the State charged him with two counts of extortion under section 836.05.
At the time of Tomlinson's arrest, section 836.05 provided:
Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such 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, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
§ 836.05, Fla. Stat. (2015) (emphasis added).[2]
The word "maliciously" is not defined in section 836.05 or chapter 836. The standard jury instruction acknowledges that Florida's district courts of appeal have adopted different definitions of the word. See Fla. Std. Jury Instr. (Crim.) 8.23. One district court has read the statute to require proof of ill will, hatred, spite, or an evil intent (what some courts have called "actual malice"). See Calamia, 125 So.3d at 1010. And other district courts have read the statute to require proof that the threat was made intentionally and without any lawful justification (or "legal malice"). See Dudley v. State, 634 So.2d 1093, 1094 (Fla. 2d DCA 1994); Alonso v. State, 447 So.2d 1029, 1030 (Fla. 4th DCA 1984); see also Sanchez-Torres v. State, 322 So.3d 15, 23 (Fla. 2020) () (quoting O'Flaherty-Lewis v. State, 230 So.3d 15, 18 (Fla. 4th DCA 2017)). The standard jury instruction thus gives trial courts the option to instruct on either definition. See Fla. Std. Jury Instr. (Crim.) 8.23.
Over Tomlinson's request that the jury be instructed on actual malice, the trial court instructed the jury on legal malice, specifically that "maliciously" meant "intentionally and without any lawful justification." The jury found Tomlinson guilty on both counts of extortion.
On appeal to the Third District, Tomlinson argued that the trial court erred by denying his request to instruct the jury on actual malice. The Third District disagreed, finding that "[t]he extortionist need not hate" the complainant, and" '[t]aking the text of section 836.05 as a whole, and considering its context and the discernable purposes of the legislature,' . . . the statutory term 'maliciously' means legal malice." Tomlinson, 322 So.3d at 215 ().
In reaching this holding, the Third District "reject[ed] the rationale employed by [the Fifth District] in Calamia." Id. In Calamia, the Fifth District concluded that this Court's decision in Carricarte, 384 So.2d at 1263, established that actual malice is the proper standard, even though the Fifth District thought that "legal malice is the more appropriate definition." 125 So.3d at 1010. Carricarte concerned a constitutional challenge to section 836.05, Florida Statutes (1977), based on vagueness and overbreadth. 384 So.2d at 1262. We rejected this challenge, and in addressing the defendant's vagueness argument we explained that we had "repeatedly upheld the terms 'malice' and 'malicious' against a vagueness challenge." Id. at 1263. In so stating, we cited as one example State v. Gaylord, where we had defined "malice" in the aggravated child abuse context to mean "ill will, hatred, spite, an evil intent." 356 So.2d 313, 314 (Fla. 1978).
In rejecting the Fifth District's analysis, the Third District in Tomlinson found that legal malice was the correct standard based on its interpretation of the statute and decisions from other district courts of appeal, which had continued to apply the legal malice standard even after the Fifth District in Calamia held that this Court's decision in Carricarte required application of the actual malice standard. See Tomlinson, 322 So.3d at 215. The Third District concluded that "the conduct the extortion statute intends to criminalize . . . 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" and affirmed the trial court's use of the legal malice jury instruction. Id. at 216. In doing so, the Third District aligned itself with the Fourth District Court of Appeal's decision in Alonso, 447 So.2d at 1030, and the Second District Court of Appeal's decision in Dudley, 634 So.2d at 1094.
We have exercised our discretionary jurisdiction to resolve the express and direct conflict as to what section 836.05 requires the State to prove with regard to malice.[3] Because "the merits of this case only concern statutory interpretation, our review is de novo." Alachua Cnty. v. Watson, 333 So.3d 162, 169 (Fla. 2022) (citing GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla. 2007)).
When in discerning what a statute requires, we encounter a word with more than one meaning, we look for the original meaning of the...
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