FL2: Direct contempt for refusing to provide passcode for cell phone search reversed; out-of-court evidence couldn’t be considered

Defendant was held in contempt and sentenced to five months and 29 days for refusing to provide the passcode for his cell phone so it could be searched under a warrant. “However, whether a finding of contempt could have been supported solely by the trial court’s credibility determination that Agosto was lying about his inability to unlock the phone—without the corroborating evidence of unobserved conduct such as his previous refusal to provide the passcode at the jail—is not a question before this court. To reach its finding of contempt, the trial court relied on evidence of conduct that occurred outside the presence of the court. Because that is not permissible in direct criminal contempt proceedings, we reverse and remand for the lower court to vacate Agosto’s conviction for direct criminal contempt.” Agosto v. State, 2020 Fla. App. LEXIS 3699 (Fla. 2d DCA Mar. 20, 2020).