Russell v. State , 656 So. 2d 203 ( 1995 )

656 So.2d 203 (1995)

David RUSSELL, Appellant,
v.
STATE of Florida, Appellee.

No. 95-532.

District Court of Appeal of Florida, Fifth District.

May 19, 1995. Rehearing Denied June 29, 1995.

David Shirley Russell, Daytona Beach, pro se.

No appearance for appellee.

W. SHARP, Judge.

Russell appeals from the summary denial of his 3.800 motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence (twenty-five years in prison for two counts of attempted sexual battery).^[1] He argues his scoresheet was improperly calculated because victim injury points were assessed for "penetration," contrary to Karchesky v. State, 591 So.2d 930 (Fla. 1992). We affirm.

Even if Karchesky applies to this case, and we are not certain that it does, the record attached to the trial court's denial of relief shows that Russell and the state entered into a written plea agreement which called for a twenty-five year prison sentence. The agreement did not promise a guidelines sentence. Further, the plea hearing transcript indicates Russell agreed to a departure sentence. Thus any scoresheet error would be harmless since a sentencing court may depart from the guidelines, based on a plea bargain. See Quarterman v. State, 527 So.2d 1380 (Fla. 1988).

AFFIRMED.

DAUKSCH and PETERSON, JJ., concur.

NOTES

[1] See §§ 794.011(2)(a), 777.04, Fla. Stat. (1993).