LESTER BUTLER, APPELLANT,
v.
SHAKERIA NORTON, APPELLEE

Fla. 1st DCA | 2015-02-23
No. 1D13-3415
PADOVANO, CLARK and MARSTILLER, JJ., concur.
158 So. 3d 750 Florida District Court of Appeal, First District (2015) Positive Treatment
Cited by 4 cases

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Synopsis

An incarcerated defendant appealed the denial of his motion to dissolve a restraining order, arguing the trial court violated his right to participate in the hearing by failing to issue an order granting his telephonic appearance request before convening the hearing. The First District Court of Appeal reversed, holding that a trial court must issue an order granting an incarcerated party's request for telephonic participation before the hearing occurs.


Holding

The trial court reversibly erred by failing to issue an order granting Butler's request for telephonic participation before holding the hearing. An incarcerated party has a right to be heard in civil matters when the party has brought to the court's attention a desire to appear personally or telephonically, and the court must issue a specific order directing telephonic appearance before the hearing occurs.


Headnotes

[1] An incarcerated party has a right to be heard in civil matters when they have notified the court of their desire to appear personally or telephonically.

[2] When a party is incarcerated and cannot physically appear in a civil matter, a trial court should normally grant a request to hold necessary hearings by telephone as an a…

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Key Quotes

“An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically.”

Establishes the fundamental right of incarcerated parties to participate in civil proceedings

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Facts & Procedural History

Lester Butler, who is incarcerated at Desoto Correctional Institution, filed a motion to dissolve a restraining order on June 3, 2013. A hearing was s…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant Lester Butler appeals the denial of his motion to dissolve a restraining order against him. Butler, who is incarcerated, argues that the lower court reversibly erred by failing to give him an adequate opportunity to participate in the *751motion hearing telephonically. We agree and reverse.

The record before us reflects the following case chronology and court rulings: Butler filed his motion to dissolve the restraining order on June 3, 2013. The court issued an order on June 17, 2013,1 setting a hearing on the motion for 9:30 a.m. on June 25, 2013. Butler subsequently filed a Motion for Telephonic Hearing stating that he was unable to appear in person at the hearing because of his incarceration, and further that, “The court must fax a copy of the order [granting the telephonic hearing] to the Classification Department here at Desoto Correctional Institution — 13617 Southeast Highway 70 Arcadia, Florida 34266-7800 two days before the hearing is scheduled.” The prison stamp on Butler’s motion reflects he provided it for mailing on June 18, 2013. The motion also bears a stamp showing the judge received it on June 24, 2013. The judge did not rule on it, however, until 4:50 p.m. on June 25, 2013, after holding the 9:30 a.m. hearing on Butler’s motion to dissolve the restraining order and entering an order denying dissolution, which states, as grounds:

1. Mr. Butler did not appear, and could not be reached by telephone.
2. The sworn motion is insufficient to overcome the testimony of [Appellee]; Mr. Butler having failed to meet his burden, the motion is denied.

The Order Denying Motion for Telephonic Hearing states, in pertinent part:

1. The hearing took place as scheduled earlier today.
2. Court staff attempted to reach Mr. Butler, without success as no classification officer picked up the phone.
3. The sworn motion [to dissolve restraining order] showed no pertinent change in circumstances, leaving no choice but to deny the motion.

“An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.” Garrett v. Pratt, 128 So.3d 928, 928 (Fla. 5th DCA 2013) (citing Johnson v. Johnson, 992 So.2d 399, 401 (Fla. 1st DCA 2008)). “When a party is incarcerated and cannot physically appear in a civil matter, the trial court normally should grant a request to hold necessary hearings by telephone, pursuant to the procedure outlined in Florida Rule of Judicial Administration 2.071 [now 2.530], as an alternative to requiring that the inmate be transported to the hearing by the state.” Johnson v. Johnson, 783 So.2d 326, 327 (Fla. 1st DCA 2001). Importantly, the Department of Corrections requires institutional staff to initiate all such telephone calls. See Fla. Admin. Code. R. 33-602.205(8)(b). It is reasonable to infer from this directive that institutional staff must first receive an order from the court requiring an inmate to appear for a hearing by telephone on a specific date and at a specific time.

In Butler’s case, the trial court issued no such order. Instead, it convened the hearing, directed court staff to call the prison, and held the hearing without Butler when no one answered the phone. We conclude that, notwithstanding the attempt to contact Butler, the court’s failure to issue an order granting Butler’s request to appear by telephone resulted in his being precluded from participating in the hearing. See Johnson, 992 So.2d at 401-02 (reversing final judgment of dissolution of marriage where inmate notified trial court of his desire to participate in final dissolu*752tion hearing, but court held hearing and entered final judgment without giving inmate opportunity to appear, even tele-phonically). Accordingly, we reverse the order denying Butler’s motion to dissolve the restraining order against him, and remand for further proceedings to include permitting Butler to file another motion for telephonic hearing.

REVERSED and REMANDED.

PADOVANO, CLARK and MARSTILLER, JJ., concur.


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Citator

Cited By

  • Havenner v. Debora Hutchinson, 162 So. 3d 1113 (Fla. 1st DCA 2015)
    …telephoni-cally. The lower court then denied his motion. “An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.” Butler v. Norton, 158 So. 3d 750 (Fla. 1st DCA 2015) (citing Garrett v. Pratt, 128 So. 3d 928 (Fla. 5th DCA 2013); (Johnson v. Johnson, 992 So. 2d 399, 401 (Fla. 1st DCA 2008))). When the incarcerated party cannot make a personal appearance in a civil matter, the judge should still…
  • Weston v. Weston, 307 So. 3d 975 (Fla. 1st DCA 2020)
    …nt requires institutional staff to initiate the phone call for an inmate to participate in court proceedings. See Havenner v. Hutchinson, 162 So. 3d 1113, 1114 (Fla. 1st DCA 2015) (citing Fla. Admin. Code R. 33-602.205(8)(b)). In Butler v. Norton, 158 So. 3d 750, 751 (Fla. 1st DCA 2015), a panel of this Court construed the directive in rule 33-602.205(8)(b) to require institutional staff to “first receive an order from the court requiring an inmate to appear for a hearing by telephone on a specific date and…
  • Figueredo v. Cordero (Fla. 3d DCA 2020)
    …cation of probate based on Figueredo’s failure to appear. “An incarcerated party has a right to be heard in civil matters if the party has brought to the court’s attention his or her desire to appear personally or telephonically.” Butler v. Norton, 158 So. 3d 750, 751 (Fla. 1st DCA 2015) (quoting Garrett v. Pratt, 128 So. 3d 928, 928 (Fla. 5th DCA 2013)). “When a party is incarcerated and cannot physically appear in a civil matter, the trial court normally should grant a request to hold necessary hearings b…

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