KENNETH ROGERS, APPELLANT,
v.
JENNIFER ROGERS, APPELLEE
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PER CURIAM.
Affirmed.
FARMER and GROSS, JJ., concur.
WARNER, J., concurs specially with opinion.
WARNER, J.,
concurring specially.
I concur and write to address appellant’s due process argument. Appellant appeals a final judgment of dissolution of marriage entered when he was in state prison. He claims that he was deprived of procedural due process, because he was not properly given notice of the final hearing, nor was he given the opportunity to be present by telephone at the final hearing. Although the order setting trial was sent to the wrong prison, a later filing by appellant shows that he actually received the order setting trial over two weeks prior to the trial date.
Thus, he received adequate notice of the trial. See Fla. Fam. L.R.P. 12.440(a) (“reasonable notice of not less than 10 days shall be given”). He did not attempt to contact the court regarding the trial date or file a motion to transport for trial or at least appear telephonically.
Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation (including family law cases) has the right to be heard but must take the initiative to secure the opportunity to appear and present his version of the facts. In other words,"the prisoner must bring to the court’s attention his desire to appear personally or telephonically at hearing or trial. See, e.g. Burch v. City of Lakeland, 891 So. 2d 654 (Fla. 2d DCA 2005); Waugh v. Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996).
Otherwise, the court will assume that the defendant does not desire to be present, just as it does with a non-incarcerated defendant who does not appear for trial in a civil matter. A court is not required to grant a request to appear but can do so, depending upon the circumstances. See Brown v. Sheriff of Broward County Jail, 502 So. 2d 88 (Fla. 4th DCA 1987).
However, the prisoner first must raise the issue with the trial court. Appellant did not apprise the court of his desire to be present or move to continue the proceedings until he could be prepared. As such, he has not preserved his procedural due process argument.
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Johnson v. Shakira Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008)…or telephonically, waived his right to argue on appeal that the trial court denied him the right to be present, at least where he apparently received all relief he requested). As Judge Warner observed, in her special concurrence in Rogers v. Rogers, 977 So. 2d 687, 687 (Fla. 4th DCA 2008): Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation (i…
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Nanci Hubsch v. Howell Creek Reserve Community, 155 So. 3d 474 (Fla. 5th DCA 2015)…ally. The trial court erred by conducting the hearing without giving her an opportunity to appear by telephone. See Johnson v. Johnson, 992 So. 2d 399, 401 (Fla. 1st DCA 2008). As Judge Warner observed in her special concurrence in Rogers v. Rogers, 977 So. 2d 687, 687 (Fla. 4th DCA 2008): Unlike the state’s obligation in criminal cases to ensure the defendant’s presence at critical stages of proceedings, in civil court no corresponding duty is imposed on the state. A prisoner involved in civil litigation ..…
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Burdoo v. Plympton, 219 So. 3d 170 (Fla. 1st DCA 2017)…tion has the right to be heard; however, “the prisoner must bring to the court’s attention his desire to appear personally or telephonically at hearing or trial.” Johnson v. Johnson, 992 So. 2d 399, 401 (Fla. 1st DCA 2008) (quoting Rogers v. Rogers, 977 So. 2d 687, 687 (Fla. 4th DCA 2008)). If a prisoner requests a telephonic hearing or asserts his desire to be. heard on the matter, “the right is clear.” Johnson, 992 So. 2d at 401. A court reversibly errs when a prisoner requests to appear telephonically, and…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dawson-Knapp v. State, 679 So. 2d 1 (Fla. 2d DCA 1995)
- Waugh v. Caren Waugh, 679 So. 2d 1 (Fla. 2d DCA 1996)
- Brown v. Sheriff OF Broward Cnty. Jail, 502 So. 2d 88 (Fla. 4th DCA 1987)
- Burch v. City OF Lakeland, 891 So. 2d 654 (Fla. 2d DCA 2005)