Gingery v. State
The Fifth DCA affirmed convictions for two counts of sexual battery with force where the trial court barred the testifying defendant from consulting counsel during a five-minute comfort recess. The majority held no Sixth Amendment violation occurred under Perry v. Leeke, questioned whether Bova II/Amos still supply an independent Florida-law right, found any error harmless beyond a reasonable doubt, and certified a question of great public importance to the Florida Supreme Court. Judge Soud concurred in result, concluding Perry effectively overruled Bova and there was no error at all.
Key facts
- Defendant was convicted of two counts of sexual battery with force in trial court.
- During defendant's testimony, the trial court prohibited him from consulting with his attorney during a five-minute comfort recess.
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Why it matters
This opinion directly challenges the long-settled Florida rule (Bova II/Amos, as read by Leerdam, Mears, and Cadavid) that Florida law affords a greater right to attorney consultation during brief mid-testimony recesses… — full analysis with a trial
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