JOEL GINGERY

v.

STATE OF FLORIDA

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

JOEL GINGERY, Appellant,

v.

STATE OF FLORIDA, Appellee.

Case No. 5D2024-1550 LT Case No. 2022-303918-CFDB

On appeal from the Circuit Court for Volusia County. Elizabeth A. Blackburn, Judge.

Michael Ufferman, of Michael Ufferman Law Firm, P.A., Tallahassee, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Roberts J. Bradford, Jr., Senior Assistant Attorney General, Daytona Beach, for Appellee.

July 24, 2026

LAMBERT, J.

Appellant Joel Gingery appeals his convictions and sentence for two counts of sexual battery with force. We affirm on all issues but write to address Gingery's argument that the trial court reversibly erred in prohibiting him from consulting with his lawyer during a five-minute recess taken while Gingery was testifying in his own defense.

I

In 1980, one of our sister courts was tasked with deciding whether a trial court had the discretion to prohibit a defendant, who was in the midst of cross-examination, from consulting with his attorney during a fifteen-minute break. Bova v. State, 392 So. 2d 950, 953 (Fla. 4th DCA 1980). While being cross-examined, the defendant responded that he was confused by a question being asked; and he requested a ten-minute break. Id.

This prompted defense counsel to request a fifteen-minute recess, which the trial court granted. Id. The court then instructed the defendant not to talk with anyone about the case during the recess. Id. Defense counsel objected, citing to both his client's Sixth Amendment right under the United States Constitution to effective assistance of counsel “and his correlative rights under the Florida Constitution." Id. The trial court adhered to its prior ruling, stating, “I don't think at this time that you have a right to confer with your client until he has testified as to the rest of his cross examination.” Id.

The Fourth District Court of Appeal affirmed the defendant's first-degree murder conviction and sentence. Id. at 951. On the attorney-client consultation issue, the court wrote that it was specifically declining to hold that the fifteen-minute restraint imposed by the trial court constituted an abuse of discretion “or was an impermissible impairment of the defendant's Sixth Amendment right to assistance of counsel, or a violation of [the] defendant's correlative rights under Article I, Section 16 of the Florida Constitution." Id. at 953-54.1

In so holding, the court acknowledged the leading case of Geders v. United States, 425 U.S. 80 (1976), in which the United

States Supreme Court held that a defendant's Sixth Amendment rights were violated by the trial court's restriction against attorney-client consultation during a seventeen-hour overnight recess. Bova I, 392 So. 2d at 955. Crucial to the decision in Geders were the duration and the customary use of the overnight recess, with the Court observing that counsel may need to use the overnight recess to discuss tactical decisions and strategies with the defendant or to otherwise discuss the significance of the day's events. Id. (citing Geders, 425 U.S. at 88).

The Fourth District Court noted, in perhaps a bit of foreshadowing, that “all recesses are not the same," id., and emphasized the “narrow scope” of its holding as one that “embraces a brief recess in the midst of cross-examination which did not usurp time customarily available for planning and consultation.” Id. at 956.

II

Bova appealed the decision to the Florida Supreme Court, which accepted jurisdiction. The court framed the question for review as whether the constitutional right to counsel under the Sixth Amendment and Article I, Section 16 of the Florida Constitution prohibits any restrictions on attorney-client consultation during a trial recess. Bova v. State, 410 So. 2d 1343, 1344 & n.2 (Fla. 1982).

The court expressly rejected the district court's holding that the defendant's Sixth Amendment right to counsel or the defendant's correlative right under the Florida Constitution had not been violated by the trial court prohibiting the defendant from consulting with his counsel during the fifteen-minute break in his testimony. Id. at 1344–45. Instead, it held “that no matter how brief the recess, a defendant in a criminal proceeding must have access to his attorney.” Id. The court explained that the “right of a criminal defendant to have reasonably effective representation is absolute and is required at every essential step of the proceedings" and "to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel.” Id. at 1345 (citations omitted).

Seven years after Bova II, the United States Supreme Court decided Perry v. Leeke, 488 U.S. 272 (1989). In this case, the direct examination of the defendant had ended; but prior to the State beginning its cross-examination, the trial court granted a fifteenminute break. Id. at 274. The court ordered the defendant not to consult with anyone, including his attorney, during the break. Id. When the trial resumed, defense counsel moved for a mistrial, which the trial court denied, explaining that the defendant was not entitled to be assisted or helped prior to cross-examination. Id. The defendant was subsequently convicted of murder, kidnapping, and sexual assault. Id.

The case eventually made its way to the United States Supreme Court, which granted certiorari to address what it referred to as an important and frequently-arising question on the constitutionality of orders barring a criminal defendant's access to his or her attorney during a trial recess. Id. at 277 & n.2. The Court held that the defendant's Sixth Amendment right to the assistance of counsel had not been violated when the trial court directed the defendant not to consult with counsel during the fifteen-minute break, id. at 282–84, and contrasted its earlier decision in Geders because the seventeen-hour recess there had been of a different character. Id. at 284. The Court explained that a defendant does not have a constitutional right to discuss his or her testimony while it is in process, holding “that the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in progress if the judge decides that there is a good reason to interrupt the trial for a few minutes.” Id. at 284–85. But the Court also observed that “as a matter of law in some States, it may well be appropriate to permit such consultation [between a defendant and his counsel during such brief recesses].” Id. at 284.

IV

The next chronologically significant case to the present appeal was the Florida Supreme Court's decision in Amos v. State, 618 So. 2d 157 (Fla. 1993), released four years after Perry. The defendant was appealing “his convictions of two counts of first-degree murder, an attempted first-degree murder, four counts of robbery with a firearm, and one count of aggravated assault with a firearm, and his sentences, including a sentence of death for one of the murders." Id. at 158.

The first claim raised by the defendant on his direct appeal was that the trial court had improperly precluded him from consulting with his counsel during the one-hour lunch break. Id. at 161. The defendant had just concluded his direct testimony; and the trial court, over objection, instructed the defendant that he could not speak with his counsel during the lunch break. Id.

The Florida Supreme Court agreed with the defendant on this claim. Id. It noted that the trial court's ruling was contrary to the court's earlier decision in Bova II when it held that no matter how brief the recess, a defendant in a criminal case must have access to his attorney. Id. (citing Bova II, 410 So. 2d at 1344). The court reversed the defendant's convictions and sentences, holding that "it was clear error for the [trial] court to prohibit [the defendant] from speaking to his counsel during the [one-hour] recess period.” Id.2

Though the decision in Perry had been released by the United States Supreme Court only a few years earlier, Perry was not mentioned by the majority in Amos. Nor, for that matter, did the court cite to Geders, the Sixth Amendment, or to Article I, Section 16 of the Florida Constitution in its analysis. However, Justice Grimes, in a concurring, in part, and dissenting, in part, opinion, discussed as follows the significance of the United States Supreme Court precedents in Perry and Geders, and the Florida Supreme Court's decision in Bova II, on whether a trial court could prohibit a defendant from consulting with counsel during a break in the defendant's testimony:

Thus, the state of the law on the subject appears to be that where there is a long recess, any restriction on the defendant's right of access to his counsel violates the federal constitution without regard to a showing of prejudice. On the other hand, it is permissible and even appropriate to restrict a defendant's right to talk to counsel during a short recess. I believe that the one-hour luncheon recess in the instant case falls within the ‘short recess' principle of Perry rather than the long recess' rule of Geders.... There was no error under federal law.

Of course, under Bova [II] it is also impermissible to keep a testifying defendant away from counsel during a short recess, but its effect is evaluated on a harmless error basis. Even though the judge's admonition to [the defendant's] counsel was error under Florida law, I have no difficulty in concluding that it was harmless.

Id. at 164–65 (Grimes, J., concurring in part, dissenting in part).

Thus, two of the justices on the Amos court³ viewed the trial court's restriction on the defendant's right to consult with counsel, though not violative of the Sixth Amendment, as violating “Florida law." Id. at 163.

Our concurring colleague fairly submits that Perry has effectively overruled Bova II. Under Sixth Amendment jurisprudence, the holding in Bova II that no matter how brief the recess, a defendant in a criminal proceeding must have access to his or her counsel does not appear to square with the Supreme Court precedent in Perry that there is no Sixth Amendment violation when a trial court precludes the defendant, while still on the stand, from consulting with counsel during a fifteen-minute break. And as all Florida courts are bound by United States Supreme Court precedents that construe the United States Constitution, see Zack v. State, 371 So. 3d 335, 350 (Fla. 2023) (citations omitted), the trial court's ruling here appears to be in line with Perry.

V

The question then is how best is Amos explained or to be interpreted in light of the United States Supreme Court's decision in Perry. To the point, irrespective of the Sixth Amendment, did Gingery here have a separate right under the Florida Constitution to consult with his counsel during the five-minute break in his testimony that, under Amos and Bova II, was violated by the trial court?

In Bova II, which was reaffirmed in Amos, the court was tasked with deciding “whether the constitutional right to counsel” under the Sixth Amendment and under Article I, Section 16 of the Florida Constitution “prohibit[ed] any restrictions on attorneyclient consultation during a trial recess.” 410 So. 2d at 1344 & n.2. While the Fourth District Court held that there was no constitutional violation in prohibiting consultation with counsel during a fifteen-minute break in the defendant's testimony, Bova I, 392 So. 2d at 953–54, the Florida Supreme Court subsequently and explicitly rejected this holding. Bova II, 410 So. 2d at 1344–

45.

VI

Or is Amos better explained that the one-hour lunch break there may present different opportunities for strategic-type conversations between counsel and client such that, under Geders, the trial court in Amos prohibiting the defendant from consulting with counsel during the one-hour lunch break during his testimony would be error? Our concurring colleague posits as much. Fair point, though the majority opinion in Amos mentioned neither Geders or Perry; and Justice Grimes, in his concurring, in part, and dissenting, in part, opinion, viewed the one-hour lunch recess there being more akin to the "short recess" principle in Perry under which a trial court could constitutionally preclude consultation between the attorney and the defendant, and not the “long recess" scenario under Geders where such prohibition would violate the defendant's Sixth Amendment right to counsel. 618 So. 2d at 164– 65. Justice Grimes also thought there was no error “under federal law" in the trial court precluding the defendant from consulting with counsel during the one-hour lunch break, but “the judge's admonition to [defense] counsel was error under Florida law." Id. at 164.

Our colleague correctly points out that the Amos majority did not directly discuss the defendant's right to counsel under the Florida Constitution. But it did affirm Bova II where, again, the framed question was whether prohibiting the defendant from consulting with counsel during a fifteen-minute break in the defendant's testimony violated the Sixth Amendment and the correlative rights under the Florida Constitution to assistance of counsel. And two of our sister courts have later interpreted Amos as providing “Florida law afford[ing] greater protection of a defendant's right to counsel than federal authority requires." Mears v. State, 183 So. 3d 1230, 1232 (Fla. 4th DCA 2016) (quoting Leerdam v. State, 891 So. 2d 1046, 1049 (Fla. 2d DCA 2004)); see also Cadavid v. State, 257 So. 3d 1066, 1070 (Fla. 4th DCA 2018) (quoting Mears).

VII

Pursuant to our duty to follow United States Supreme Court precedent that construes the Federal Constitution, we find that consistent with Perry, no Sixth Amendment violation was committed by the trial court here in precluding Gingery from consulting with his counsel during a five-minute break in his testimony. We admittedly do this with some hesitation because in Amos, issued subsequently to Perry, the Florida Supreme Court reaffirmed its holding in Bova II that no matter how brief the recess, a defendant in a criminal proceeding must have access to his or her attorney, albeit that it did so without specifically delineating between the federal and state constitutional right to counsel. Amos, 618 So. 2d at 161.

Lastly, if deciding the matter in the first instance, we would further hold that there was also no violation here under the Florida Constitution. However, we believe that in light of Amos, that is not our call. See State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976) (providing that "[w]here an issue has been decided in the Supreme Court of the state, the lower courts are bound to adhere to the Court's ruling when considering similar issues, even though the court might believe that the law should be otherwise"). Though our colleague makes a fair argument that neither Amos nor Bova

II should dictate our decision, in light of the concurring, in part, and dissenting, in part, opinion of Justice Grimes in Amos, joined by Justice McDonald,⁴ that a trial court's brief restriction on the defendant's consultation with counsel, though not violative of federal law, would still appear to be a violation of Florida law, (albeit harmless there), we submit that a legitimate question arises whether the holding in Amos, at least in part, was based on the defendant's right to counsel under the Florida Constitution having been violated.

Nevertheless, based on our thorough review of the record, we hold that any error committed by the trial court in precluding Gingery from consulting with his counsel during the five-minute break here was harmless beyond a reasonable doubt.⁵ LEEKE, 488

U.S. 272 (1989) (HOLDING THAT A TRIAL

COURT DOES NOT VIOLATE THE SIXTH

AMENDMENT WHEN IT ORDERS A

DEFENDANT NOT TO CONSULT WITH HIS

COUNSEL DURING A SHORT DAYTIME

RECESS TAKEN WHILE THE DEFENDANT IS

TESTIFYING), DOES A TRIAL COURT ERR

UNDER FLORIDA LAW BY BARRING A

DEFENDANT FROM CONSULTING WITH HIS

COUNSEL DURING A SHORT DAYTIME

RECESS TAKEN WHILE THE DEFENDANT IS

TESTIFYING?

AFFIRMED; QUESTION CERTIFIED.

HARRIS, J., concurs. SOUD, J., concurs in result with opinion.

SOUD, J., concurring in result.

Case No. 5D2024-1550 LT Case No. 2022-303918-CFDB

I agree with my distinguished colleagues in affirming Appellant Joel Gingery's convictions and sentence for two counts of sexual battery with force and certifying a question of great public importance—but for a very different reason. The majority concludes the trial court's error “under Florida law" of precluding Gingery to speak with his lawyer during a five-minute recess in the midst of his testimony was harmless; I conclude there simply was no error at all, under either federal or state constitutional principles securing Gingery's right to counsel.

I.

Gingery was charged via information with two counts of sexual battery with force likely to cause serious bodily injury and one count of false imprisonment. Ultimately, Gingery exercised his constitutional right to trial by jury.

During the presentation of his case at trial, Gingery chose to testify in his own defense. During direct examination, the trial court took a recess to address certain matters outside the presence of the jury. After doing so, the court afforded counsel and court personnel a brief comfort break “for about five more minutes.” At that time, and over defense counsel's objection, the trial judge instructed Gingery he was prohibited from talking to anyone, including his counsel, during that five-minute recess.

Ultimately, Gingery was convicted as charged of two counts of sexual battery with force and found not guilty of false imprisonment. Designated by the trial court as a sexual offender, Gingery was sentenced to a total of 20.188 years in prison followed by ten years of sex offender probation.

This appeal followed.

II.

Amongst several arguments of error, Gingery contends the trial court erred by prohibiting him from talking to his counsel during the five-minute recess taken during the presentation of his testimony. Doing so, Gingery insists, violated his right to counsel. His argument fails.

A.

Gingery cites the Fourth District's decision Cadavid v. State, which, based on Florida Supreme Court precedent, held that a testifying defendant has the right to consult with counsel, “no matter how brief the recess.” 257 So. 3d 1066, 1070 (Fla. 4th DCA 2018). Cadavid's conclusion is based on its view that “Florida law affords greater protection of a defendant's right to counsel than federal authority requires." Id. This flawed state constitutional notion appears to find its origin in the Second District's opinion in Leerdam v. State, 891 So. 2d 1046, 1049 (Fla. 2d DCA 2004) (“[W]e believe the [Florida Supreme Court] construed the right to counsel as provided by article I, section 16, of the Florida Constitution, thus establishing Florida law regarding a criminal defendant's right to counsel independent of the Sixth Amendment.").

I simply find no support for this conclusion in either the text of the Florida Constitution or Florida Supreme Court precedent. In reaching my view that the judge's order prohibiting Gingery from consulting with his lawyer during the five-minute recess taken during his testimony was constitutionally permissible, I am guided by what I respectfully believe to be a proper understanding of United States Supreme Court precedent, together with Florida Supreme Court cases, which are best viewed through the bifocal lens of the substance of the Florida high court's legal analysis and the timeline in which they were rendered.

B.

A defendant has a constitutional right to consult with counsel free from judicial constraint during a prosecution, both before and after he testifies. See Amend. VI, U.S. Const.; Art. I, § 16, Fla. Const. When a defendant chooses to become a witness in his defense, however, he has no right, constitutional or otherwise, to interrupt his testimony to consult with his lawyer. See Perry v. Leeke, 488 U.S. 272, 281 (1989). Rather, the defendant “is on his own" at that point and must be heard by the jury “in his own words.” Villarreal v. Texas, 607 U.S. 465, 482 (2026) (Alito, J., concurring).

This core constitutional right to counsel is not tested when a defendant's testimony is presented uninterrupted by any recess. But what is a trial court to do when a recess is taken during his testimony?

In Geders v. United States, the United States Supreme Court concluded the Sixth Amendment prohibits a trial court from denying to a defendant the opportunity to consult with his lawyer during an overnight recess taken while a defendant was testifying because he has a right to discuss matters with counsel “other than his own testimony.” 425 U.S. 80, 88 (1976). In reaching its decision, the Court recognized that a lengthy overnight recess, some seventeen hours in Geders, provides an opportunity for the “accused and counsel to discuss the events of the day's trial,” consider “strategies,” and make “tactical decisions." Id. Importantly, the Geders Court “carefully preserved” the question whether a testifying defendant had a constitutional right to confer with counsel during a routine minutes-long break in his testimony. See Perry, 488 U.S. at 280.

Years later, the Florida Supreme Court drew a broad and bright line on the matter. In Bova v. State, the defendant—during cross examination—asked for a ten-minute break because “he was confused." 410 So. 2d 1343, 1344 (Fla. 1982). The trial court granted the recess but ordered the defendant not to confer with counsel during that time. See id. In determining that the trial court erred, though the error was harmless, our Supreme Court held "that a criminal defendant must have access to his attorney during any trial recess, no matter how short the duration . . . .” Id. Finding a defendant's right to reasonably effective counsel "absolute," the Court found "that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel." Id. at 1345.

As noted by the majority, the Florida Supreme Court in Bova rejected the holding as phrased by the Fourth District opinion under review. In briefly explaining its conclusion, the Florida Supreme Court buried Bova's roots in the soil of the United States Supreme Court's Sixth Amendment jurisprudence. In "find[ing] that to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant's basic right to counsel[,]" the Bova court cited only one case—“Geders.” Id. Bova contains not one syllable's mention of the Florida Constitution. And while Bova noted other courts had reached similar conclusions, it cites no Florida caselaw on the point.

Again, in Thompson v. State, 507 So. 2d 1074, 1075 (Fla. 1987), the Florida Supreme Court relied entirely on Bova's holding and reiterated that a trial court errs when prohibiting a testifying defendant from consulting with his counsel during “any trial recess," including a thirty-minute recess taken during his testimony. Unlike Bova, however, the Florida Supreme Court reversed the defendant's conviction and remanded for a new trial. See id.

Two years later, in Perry v. Leeke, the United States Supreme Court "consider[ed] whether the Geders rule [forbidding an order directing a testifying defendant not to consult his attorney during an overnight recess] applies to a similar order entered at the beginning of a 15-minute afternoon recess." 488 U.S. at 274 (emphasis added). The Court granted certiorari review because the issue is “important [and] one that frequently arises.” Id. at 277. The Court identified numerous cases addressing orders precluding attorney consultation during a short recess. Among those cases was the Florida Supreme Court's decision in Bova, holding “denial of access to counsel during 15-minute break during crossexamination of defendant [was a] violation of Sixth Amendment, but harmless error.”¹ See id. at 277 n.2. In the end, the Supreme Court reached a squarely different conclusion than the Florida

Supreme Court in both Bova and Thompson, concluding a trial court does not violate the Sixth Amendment when it orders a defendant not to consult with his counsel during a short daytime recess taken while the defendant is testifying in his own defense. See id. at 283–84.

[J]ust as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony-or at any other point in the examination of a witness—we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony. As we have said, we do not believe the defendant has a constitutional right to discuss that testimony while it is in process.

Id. (emphasis added).

The Court recognized that the line between Geders and Perry was "a thin one." Id. at 280. But it is one of "constitutional dimension”—drawn to “serve the truth-seeking function of the trial.” Id. at 280, 282.

By its holding in Perry, the United States Supreme Court in effect overruled the Florida Supreme Court's decision in Bova. Apparently undeterred, four years later, in Amos v. State, the Florida Supreme Court again addressed a trial court's order prohibiting a testifying defendant from conferring with counsel, this time during a one-hour lunch recess taken at the end of defendant's direct examination. See 618 So. 2d 157 (Fla. 1993). In concluding that it was “clear error” to prohibit Amos from conferring with his counsel during the recess, the Florida Supreme Court again reaffirmed Bova's holding in reversing and remanding for a new trial. See id. at 161, 163. Here again, the Florida Supreme Court did not base its decision on any additional protection afforded by the Florida Constitution not found in its federal counterpart. Its analysis was purely founded upon the Sixth Amendment—an analysis and conclusion rejected by Perry. Curiously, the Florida Supreme Court wholly ignored the United

States Supreme Court's decision in Perry, a case undeniably known to it as it was discussed in Justice Grimes's opinion concurring in part and dissenting in part from the Amos majority. See id. at 163–65 (Grimes, J., concurring in part and dissenting in part).

In his opinion, Justice Grimes considered the “state of the law on the subject," concluding, “[I]t is permissible and even appropriate to restrict a defendant's right to talk to counsel during a short recess. . . . There was no error under federal law." Id. at 164. His analysis of Perry and Geders, together with his conclusion, seems to suggest that the Florida Supreme Court was considering the case under federal constitutional principles rather than like notions born of our State constitution.

III.

So, what are we to do in light of this precedent?

A.

I note that Gingery does not argue that the order barring his consultation with counsel during a five-minute recess in his testimony violates his Sixth Amendment right to counsel. And he is wise to refrain from such a claim, as that has been squarely rejected by the United States Supreme Court in Perry.² Though a defendant's right to testify has long been viewed as “fundamental," see United States v. Scott, 909 F. 2d 488, 490 (11th Cir. 1990), the Supreme Court has “made clear that the constitutional right to testify [is] subject to limitations designed to protect the truthseeking function of trial,” Villarreal, 607 U.S. at 481 (Alito, J.,

concurring) (citing Rock v. Arkansas, 483 U.S. 44, 55–56 and n.11 (1987)). “[T]he accused, as is required of the State, must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

B.

But what of the Florida Supreme Court's decisions in Bova, Thompson, and Amos? Gingery's argument that Florida law affords greater protection of the right to counsel than that secured by the Sixth Amendment has support in precedent from the Second and Fourth District Courts of Appeal. See Cadavid, 257 So. 3d at 1070; Leerdam, 891 So. 2d at 1049. But at bottom, these cases rest upon the loose constitutional soil of Bova, as do the later Florida Supreme Court cases of Thompson and Amos.