NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

PHILLIP JAY WHEELER, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-3954 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

________________________________ ) 

Opinion filed July 24, 2015. 

Appeal from the Circuit Court for 

Hillsborough County; Kimberly K. 

Fernandez, Judge. 

Howard L. Dimmig, II, Public Defender, 

and Robert D. Rosen, Assistant Public 

Defender, Bartow, for Appellant. 

Pamela Jo Bondi, Attorney General, 

Tallahassee, and Katherine Coombs 

Cline, Assistant Attorney General, 

Tampa, for Appellee. 

KELLY, Judge. 

Phillip Wheeler challenges the life sentence imposed upon him on 

resentencing for his 1997 sexual battery offense. He argues that, although the judge 

orally pronounced reasons for departure on the record at the resentencing hearing, the 

judge failed to file written reasons or sign the transcript containing the reasons for 
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departure as required by Florida Rule of Criminal Procedure 3.703(d)(30)(A).1 

Therefore, he claims he must be resentenced within the 1994 sentencing guidelines 

range of 11.2 to 18.7 years in prison. We agree that the sentence must be reversed 

because of the failure to comply with the rule; however, having articulated valid reasons 

for departure at the resentencing hearing, on remand the judge is not required to 

sentence Wheeler within the guidelines. 

At the hearing, the judge asked the court reporter to transcribe the stated 

departure reasons so that the transcript could be filed within seven days of sentencing 

as required by rule 3.703(d)(30)(A). The court reporter complied with the judge's 

request. Although the transcript was timely filed, the judge never signed the transcript 

or filed separate written reasons for departure. 

Accordingly, we reverse and remand with instructions that the judge either 

sign the transcript of the orally pronounced reasons for departure or resentence 

Wheeler within the sentencing guidelines range. See Esquivel v. State, 958 So. 2d 517, 

 1Rule 3.703(d)(30)(A) states as follows: 

If a sentencing judge imposes a sentence that departs from 

the recommended guidelines sentence, the reasons for 

departure shall be orally articulated at the time sentence is 

imposed. Any departure sentence must be accompanied by 

a written statement, signed by the sentencing judge, 

delineating the reasons for departure. The written statement 

shall be filed in the court file within 7 days after the date of 

sentencing. A written transcription of orally stated reasons 

for departure articulated at the time sentence was imposed 

is sufficient if it is signed by the sentencing judge and filed in 

the court file within 7 days after the date of sentencing. The

sentencing judge may also list the written reasons for 

departure in the space provided on the guidelines 

scoresheet and shall sign the scoresheet. 
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518-19 (Fla. 3d DCA 2007) (holding that the judge's failure to file a timely and properly 

signed transcript of orally stated reasons for departure was harmless error and that the 

remedy was to remand for the judge to either sign the transcript or resentence the 

appellant within the guidelines). 

Reversed and remanded with directions. 

NORTHCUTT and BLACK, JJ., Concur.