
    Charles Frederick BARR, Appellant, v. STATE of Florida, Appellee.
    No. 94-1152.
    District Court of Appeal of Florida, First District.
    May 12, 1995.
    
      Nancy A. Daniels, Public Defender, Cynthia L. Hain, Certified Legal Intern, and Kathleen Stover, Asst. Public Defender, Tallahassee, for appellant.
    Robert A. Butterworth, Atty. Gen., Sonya Roebuck Horbelt, Asst. Atty. Gen., Tallahassee, for appellee.
   WOLF, Judge.

Barr appeals from a judgment and sentence after a conviction for armed robbery of a motor vehicle. Appellant contends that his departure sentence was invalid because it was based on criminally punishable conduct for which he was not convicted. The record clearly shows that the departure was based on appellant’s conduct surrounding his apprehension for the armed robbery. Because this conduct endangered the lives of many innocent persons and demonstrated a flagrant disregard for the safety of others, it constituted a clear and convincing reason for departure.

Appellant was charged by information with the November 24, 1993, armed robbery of a motor vehicle from Patricia Maddox, and with possession of a firearm by a convicted felon. The charges were severed and the robbery charge proceeded to trial.

Evidence was presented at the March 22, 1994, trial that appellant approached the victim as she pulled into the parking lot at Southern Bell Tower in Jacksonville, and that he took her car after showing her a pistol he had hidden under his coat. The victim immediately reported the theft. A Jacksonville police officer spotted the stolen car, and when he attempted to pull the car over, appellant fled. The chase occurred when traffic was heavy — it was 8:00 a.m. rush-hour traffic, and speeds exceeded 125 miles per hour. Appellant made several illegal U-turns and almost caused several accidents during the chase. The jury convicted appellant on the robbery charge.

On March 23, 1994, the state filed a notice of intent to seek a departure above the recommended sentencing guidelines range as a result of the unreasonable risk to others created by the defendant.

On March 29, 1994, appellant was sentenced to 25 years in prison, which was an upward departure from the guidelines. (Appellant’s recommended guideline sentence was seven to nine years, and the permitted range was 5½ to 12 years). A three-year mandatory-minimum was imposed for use of a firearm. After hearing argument from the state and appellant, and testimony from the officer Smith about the car chase, the court entered a written departure order. The court’s reasoning for the departure was that appellant displayed a flagrant disregard for the safety of others. According to the court, appellant’s reckless driving during the course of the chase with the police exposed numerous innocent citizens to serious harm.

In Garcia v. State, 454 So.2d 714 (Fla.1st DCA 1984), this court specifically determined that a defendant who leads police on a high-speed chase, shoots at the police, and who is involved in a wreck during a high-speed chase, may receive a departure sentence based on his conduct during the chase. (In accord Ward v. State, 568 So.2d 452 (Fla. 3d DCA 1990), a defendant whose conduct puts many people at risk may receive a departure sentence). In Miller v. State, 549 So.2d 1106 (Fla. 2d DCA 1989), reversed on other grounds, 573 So.2d 337 (Fla.1991), the second district upheld a departure sentence based on the defendant knowingly creating a great risk of injury or death to a large number of persons. In that case, the police began pursuing the defendant on a tip that he was selling batteries from his car and a high-speed chase ensued. The defendant traveled south in a northbound lane of traffic at speeds between 50 and 80 miles per hour. Traffic was forced to swerve off the road, and the defendant’s car collided head-on with another car.

In Campos v. State, 515 So.2d 1358, 1360 (Fla. 4th DCA 1987), the fourth district acknowledged that the conduct of a defendant “who personally created an extreme risk to the physical safety of law enforcement officers and innocent citizens by firing several shots from a Uzi semi-automatic rifle at pursuing police officers during the high-speed chase in heavy traffic on 1-95 at speeds over 100 miles per hour setting the case apart from the ordinary robbery” would justify an upward departure from the sentencing guidelines.

Appellant urges us, however, to depart from this line of cases and hold that a high-speed chase which endangers the lives of a large number of people should not constitute a valid reason for a departure sentence because the defendant was not charged and convicted of reckless driving. Appellant, at least partially, relies on the case of Felts v. State, 537 So.2d 995 (Fla. 1st DCA 1988), decision approved, 549 So.2d 1373 (Fla.1989), for this proposition. Appellant’s position is not well taken for several reasons.

First, there is no indication in the Felts opinion that the defendant endangered anyone other than himself and his fellow passenger. The Felts opinion is silent about the nature of the area where the high-speed chase occurred, the time of day the chase occurred, and whether there were any other vehicles or people on the streets at the time the chase ensued. While the opinion stated that the reason given for the departure was the unnecessary danger to many persons, it cannot be determined if this allegation was supported by the record. Indeed, as the fifth district stated in Strawn v. State, 576 So.2d 877, 879 (Fla. 5th DCA 1991), while placement of a substantial number of bystanders at risk during the commission of a robbery constitutes a valid reason for departure, where the record fails to support such an allegation, a departure sentence could not be upheld.

In the instant case, the facts demonstrate that chase occurred on busy thoroughfares during rush hour, several accidents almost occurred, and appellant’s behavior posed a direct threat to a substantial number of people. In addition, in Felts, supra, the uncharged crimes would include not only reckless driving but also vehicular homicide based on the death of the passenger (who was the only person who can be shown to have been endangered from the facts recited in the opinion). Thus, all the factors justifying the departure in Felts were inherent in the uncharged offenses. In the instant case, the only charge that appellant argues which could have been brought as a result of the high-speed chase was reckless driving. Clearly, it is neither an element of the offense of reckless driving nor an inherent factor in a reckless driving charge that a large or numerous number of people be exposed to serious harm.

The judgment and sentence are, therefore, affirmed.

MINER, J., concurs.

ERVIN, J., dissenting with written opinion.

ERVIN, Judge,

dissenting.

Because I consider that the sole reason given for the upward departure sentence imposed on appellant is invalid under Florida Rule of Criminal Procedure 3.701(d)(ll), as it is a factor relating to the instant offense for which he was not convicted, i.e., reckless driving, I respectfully dissent.

Appellant was convicted of armed robbery of a motor vehicle. The recommended guideline sentence was seven to nine years and the permitted guideline sentence was 5½ to 12 years in prison. The court imposed an upward departure sentence of 25 years and gave as its sole reason for departure appellant’s “flagrant disregard for the safety of others,” as evidenced by his flight from the police to avoid capture and his reckless driving which exposed numerous citizens to serious harm. As the majority points out, evidence was presented disclosing that appellant led the police on a high speed chase on a busy interstate highway. Speeds exceeded 125 mph; appellant made several illegal U-turns and nearly caused several accidents during the pursuit.

I consider that reversal is required under Felts v. State, 537 So.2d 995, 997-98 & n. 7 (Fla. 1st DCA 1988), approved, 549 So.2d 1373 (Fla.1989). In Felts, the defendant was convicted of armed robbery, and a departure sentence was imposed, partly because he drove the victim’s car at excessive speeds in an attempt to elude the authorities, resulting in an accident which killed an accomplice. The state argued that the defendant’s high speed flight from the pursuing officers constituted an extreme risk to the physical safety of both citizens and law enforcement officers, that such conduct was not inherent in the offense of robbery, and that it could support departure as it was not factored in the scoresheet. Therefore, the state contended that the court could lawfully depart from the guidelines based on circumstances surrounding the offense, and it cited Garcia v. State, 454 So.2d 714 (Fla. 1st DCA 1984). This court, relying on Williams v. State, 500 So.2d 501 (Fla.1986), and State v. Tyner, 506 So.2d 405 (Fla.1987), held that the departure reason given was invalid, because it involved circumstances surrounding the offense for which a conviction was not obtained. Accord Bass v. State, 496 So.2d 880, 881-82 (Fla. 2d DCA 1986) (rejecting as a valid departure reason the fact that the defendant had endangered the lives of many people during a high speed chase, because such conduct constituted a charge arising from the same criminal episode which was not filed against the defendant, i.e., reckless driving).

Rather than follow the above case law, the majority chooses instead to follow Garcia. Garcia, however, was decided before the two supreme court decisions cited in Felts, namely, Williams and Tyner, both of which held that rule 3.701(d)(ll) prohibits departure sentences based on reasons relating to the instant offense for which convictions have not been obtained.

The other cases the majority cites, Campos v. State, 515 So.2d 1358 (Fla. 4th DCA 1987), and Miller v. State, 549 So.2d 1106 (Fla. 2d DCA 1989), rev’d on other grounds, 573 So.2d 337 (Fla.1991), merely cite Garcia or Scurry v. State, 489 So.2d 25 (Fla.1986) (finding that conduct evincing flagrant disregard for the safety of others may be a valid reason for departure). These cases do not mention the rule applied in Williams and Tyner.

Because Garcia was decided prior to Williams and Tyner, and because Campos and Miller do not refer to these two supreme court decisions, I consider the better course is to follow Felts, which clearly applied the precedent established in the two supreme court decisions. In so saying, I note that cases which have upheld departure sentences based on conduct evincing flagrant disregard of the safety of others involve situations where the conduct could not be separately charged as another crime. See, e.g., Burgess v. State, 524 So.2d 1132 (Fla. 1st DCA 1988) (upholding departure based on flagrant disregard for safety of others where defendant shot two victims who were standing in an alley while three bystanders stood nearby); Webster v. State, 500 So.2d 285 (Fla. 1st DCA 1986) (approving departure based on flagrant disregard for the safety of others where defendant shot the victim outside a nightclub in the presence of 30 to 40 witnesses, and there was evidence that one witness was within three feet of the victim).

In the case at bar, appellant clearly could have been charged with reckless driving, which is defined in section 316.192(1), Florida Statutes (1993), as driving a vehicle “in willful or wanton disregard for the safety of persons or property.” The statute makes no mention of the number of persons whose safety is threatened; consequently, whether a defendant threatens the safety of one or many, the charge of reckless driving applies. Departure based on criminal conduct for which appellant was neither charged nor convicted, in my judgment, amounts to the imposition of an additional 13-year sentence for conduct which would, at most, be punishable by six months of imprisonment for a second violation. § 316.192(2), Fla.Stat. (1993). This type of departure sentence is precisely that which Williams prohibits.

I would therefore reverse appellant’s departure sentence and remand for imposition of a guideline sentence. See Shull v. Dugger, 515 So.2d 748 (Fla.1987). 
      
      . Even if other charges could have been brought, we are unaware of any offense where it is an inherent factor of the offense that a large group of people’s lives were endangered.
     
      
      . In Williams, the trial court’s reason for departure was the defendant's failure to appear for sentencing. In determining the same to be invalid, the supreme court explained that failing to appear for sentencing in a criminal case is itself a criminal offense, yet the defendant was not charged or convicted of such crime. Permitting deviation from the guidelines for failure to appear would, in essence, be circumventing established legislative punishments by eliminating a trial. Moreover, a departure sentence based on such reason was violative of rule 3.701(d)(ll), which prohibits departures based on offenses for which the defendant was not convicted.
      In Tyner, the supreme court reversed an upward departure based in part upon the deaths of two persons during a burglary. The court explained that departure could not be grounded on the deaths, because the defendant was not convicted of them.
     