JERRY W. HAVENNER, APPELLANT,
v.
DEBORA HUTCHINSON, APPELLEE
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An incarcerated party appealed the denial of his motion to modify a repeat violence injunction after failing to appear at the hearing. The court held that an incarcerated party has a constitutional right to be heard in civil matters if he has requested telephonic appearance, and that the trial court must issue an order to the Department of Corrections to facilitate such appearance. The court reversed and remanded because the trial court failed to issue the required order.
An incarcerated party has a right to be heard in civil matters if the party has requested personal or telephonic appearance. When an incarcerated party cannot appear personally, the judge must allow telephonic participation. The trial court must issue an order to the Department of Corrections requiring the incarcerated party to appear telephonically at a specified time and date to facilitate such appearance.
[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 an incarcerated party cannot appear in person for a civil hearing, the court must still allow the hearing to proceed with the incarcerated party having telephonic ac…
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Join FLexlaw to unlock all legal intelligence“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 through telephonic means when they request it.
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Join FLexlaw to unlock all legal intelligenceHavenner, who is incarcerated in the Florida Department of Corrections, moved to modify a repeat violence injunction against him. He notified the lowe…
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Appellant Jerry W. Havenner, who is incarcerated, appeals the denial of his motion for modification of a repeat violence injunction issued against him. Havenner argues that his due process rights were violated when the lower court denied his motion after he, through no fault of his own, failed to appear at the hearing. We agree and reverse.
The record before us reflects that Havenner properly brought to the lower court’s attention his desire to appear tele-phonically for the hearing. The lower court, in turn, noted on Havenner’s notice of hearing that he was to appear telephoni-cally. However, on the date of the hearing, Havenner failed to appear 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 allow the hearing to be held with the incar*1114cerated party having telephonic access to the hearing. See Fla. R. Jud. Admin. 2.530.
Here, as in Butler, the party was incarcerated in the Florida Department of Corrections, which does not permit a party or anyone else to initiate a call — but requires that institutional staff initiate such phone calls. See Fla. Admin. Code R. 33-602.205(8)(b).
Because, as in Butler, the trial court here failed to issue an order directed to the Department of Corrections requiring Appellant to appear telephonically at a specified time and date, we reverse the order denying Mr. Havenner’s motion to dissolve the injunction against repeat violence and remand for further proceedings.
REVERSED and REMANDED.
CLARK and ROWE, JJ., concur; MAKAR, J., concurs, with opinion.
concurring.
I agree that reversal is proper, but note that doing so is necessary only because appellant filed a notice of appeal before the trial court had the opportunity to grant his motion for rehearing, an order that accorded him the full relief he seeks on appeal.
MAKAR, J.,
concurring.
I agree that reversal is proper, but note that doing so is necessary only because appellant filed a notice of appeal before the trial court had the opportunity to grant his motion for rehearing, an order that accorded him the full relief he seeks on appeal.
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Burdoo v. Plympton, 219 So. 3d 170 (Fla. 1st DCA 2017)…2 So. 2d at 401. A court reversibly errs when a prisoner requests to appear telephonically, and the court fails to issue an order directed to the Department of Corrections requiring the prisoner to appear telephoni-cally. See Havenner v. Hutchinson, 162 So. 3d 1113 (Fla. 1st DCA 2015). [*172] Because Burdoo properly notified the lower court that he wished to appear telephonically and he was denied the opportunity to appear, we reverse the order denying Burdoo’s motion to dissolve the injunction and remand for…
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Weston v. Weston, 307 So. 3d 975 (Fla. 1st DCA 2020)…clear.” Id. The appellant made clear his desire to appear at the final hearing telephonically. The Department 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 r…
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Golden v. Est. of Hans G. Tanzler, Jr., 257 So. 3d 652 (Fla. 1st DCA 2018)…risoner requests to appear telephonically[] and the court fails to issue an order directed to the Department of Corrections requiring the prisoner to appear telephonically.” 219 So. 3d 170, 171 (Fla. 1st DCA 2017); accord Havenner v. Hutchinson, 162 So. 3d 1113, 1114 (Fla. 1st DCA 2015). In this case, that is what happened. REVERSED. ROBERTS, RAY, and WINSOR, JJ., concur. 2 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. Ap…
Authorities Cited
- Johnson v. Shakira Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008)
- Garrett v. Pratt, 128 So. 3d 928 (Fla. 5th DCA 2013)
- Butler v. Shakeria Norton, 158 So. 3d 750 (Fla. 1st DCA 2015)