A Florida appellate court has affirmed the convictions and 20-year prison sentence of Joel Gingery for two counts of sexual battery with force, while asking the state’s highest court to clarify whether judges can stop defendants from speaking with their lawyers during brief trial breaks.
The ruling, issued July 24, 2026, by the Fifth District Court of Appeal, centered on an incident during Gingery’s trial in Volusia County Circuit Court. While Gingery was on the witness stand testifying in his own defense, the trial judge called a five-minute recess and instructed him not to talk to anyone, including his attorney, during the pause.
On appeal, Gingery argued that the judge’s order violated his constitutional right to legal counsel.
In a unanimous decision affirming the guilty verdict, the three-judge appellate panel ruled that any error caused by the judge’s five-minute restriction was harmless beyond a reasonable doubt and did not alter the trial’s outcome.
However, the judges split on how Florida law handles short interruptions in defendant testimony.
Writing for the court, Judge Lambert noted a long-standing tension between federal and state legal precedents. In 1989, the U.S. Supreme Court ruled in Perry v. Leeke that judges do not violate the U.S. Constitution’s Sixth Amendment by barring defendants from consulting their attorneys during brief mid-testimony breaks.
However, earlier and subsequent decisions from the Florida Supreme Court, including a 1982 ruling in Bova v. State, established that criminal defendants in Florida must have access to their lawyers during any trial recess, no matter how short.
While holding that the trial judge’s order complied with federal standards, the appellate court acknowledged uncertainty over whether Florida’s state constitution provides broader protections than the federal constitution in these scenarios.
To resolve the issue, the panel certified a question of great public importance to the Florida Supreme Court, asking it to decide whether state law permits trial judges to prohibit defendants from speaking with counsel during short daytime breaks while they are actively testifying.
In a separate concurring opinion, Judge Soud argued that the trial court made no error at all, stating that federal constitutional standards should control the issue and that defendants have no right to pause ongoing testimony to consult with legal counsel.
Following the trial court’s original judgment, Gingery was sentenced to 20.188 years in state prison, followed by 10 years of sex offender probation. The Florida Supreme Court will now decide whether to accept the certified question for review.
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