## Facts

- Charles Frederick Barr took a car at gunpoint.
- When an officer later attempted to stop the stolen car, Barr fled.
- Barr led police on a high-speed chase in heavy traffic, nearly causing multiple accidents and endangering other motorists.
- The State charged Barr with armed robbery and possession of a firearm by a convicted felon.
- A jury convicted Barr of armed robbery.
- Under the sentencing guidelines, the recommended sentence was seven to nine years, with a permitted range of five and one-half to twelve years.
- The trial court imposed a 25-year upward departure sentence based solely on Barr’s reckless driving during the police pursuit.
- Barr was not separately charged or convicted of offenses based on the chase (such as reckless driving or fleeing and eluding).

## Issues

1. Whether an upward departure sentence may be based solely on conduct during the offense episode (reckless driving in a police chase) that could have been separately charged but did not result in a separate conviction under Florida Rule of Criminal Procedure 3.701(d)(11).

## Decision

- The Florida Supreme Court quashed the district court’s affirmance of the departure sentence.
- The Court held the departure sentence was invalid because the sole departure reason was conduct for which no conviction was obtained.
- The case was remanded for resentencing within the applicable guideline range.

## Legal Principles

- Florida Rule of Criminal Procedure 3.701(d)(11) prohibits guideline departure reasons based on factors relating to the instant offenses for which convictions have not been obtained.
- A sentencing court may not justify an upward departure by relying on uncharged or unconvicted conduct that could have been separately prosecuted, even if it occurred during the same criminal episode.
- District court decisions allowing departure based on such unconvicted conduct are disapproved to the extent they conflict with Florida Supreme Court precedent enforcing Rule 3.701(d)(11).

## Conclusion

The Florida Supreme Court required resentencing within the guidelines because the trial court’s only departure reason—dangerous driving during the police chase—was conduct that could have been separately charged but did not result in a conviction, making it an impermissible basis for an upward departure under Rule 3.701(d)(11).


Barr v. State, 674 So. 2d 628 (Fla. 1996)