IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JERRY W. HAVENNER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-3429
DEBORA HUTCHINSON,
Appellee.
_____________________________/
Opinion filed April 17, 2015.
An appeal from the Circuit Court for Clay County.
Dan Wilensky, Judge.
Jerry W. Havenner, pro so, Appellant.
No appearance for Appellee.
PER CURIAM.
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 telephonically for the hearing. The lower
court, in turn, noted on Havenner’s notice of hearing that he was to appear
telephonically. However, on the date of the hearing, Havenner failed to appear
telephonically. 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, 40 Fla. L. Weekly D493 (Fla. 1st DCA Feb. 24,
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 incarcerated 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
2
dissolve the injunction against repeat violence and remand for further proceedings.
REVERSED and REMANDED.
CLARK and ROWE, JJ., CONCUR; MAKAR, J., CONCURS, WITH OPINION.
3
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.
4