NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2015 CA 0377
DERRICK DAVIS
VERSUS
LOUISIANA DEPARTMENT OF PUBLIC SAFETY
AND CORRECTIONS
Judgment Rendered:
NOV 0 6 2015
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No.C634849
Honorable Timothy Kelley, Judge Presiding
Derrick Davis
Plaintiff/Appellant
Winnfield Correctional Center
In Proper Person
Winnfield, Louisiana
William L. Kline
Baton Rouge, Louisiana
Counsel for Defendant/ Appellee
Louisiana Department of Public
Safety and Corrections
BEFORE: McDONALD, McCLENDON, AND THERIOT, ll.
McCLENDON, J.
Derrick Davis, an inmate in the custody of the Louisiana Department of
Public Safety and Corrections ( the DPSC), appeals a judgment of the district court,
dismissing his petition for judicial review without prejudice.
For the following
reasons, we dismiss the appeal.
On November 5, 2014, Davis filed his petition for judicial review, naming
the DPSC as defendant and alleging that his sentence is illegal in that he was
ordered to serve his two ten-year sentences for sexual battery consecutively rather
than concurrently.
Davis maintains that each of the two counts should have had
its own docket number and separate trial because there were two alleged victims.
Therefore, he contends, because the two counts were in one bill of information
and tried together, the sentences imposed should have been ordered to run
concurrently. 1
Davis asked the district court to recalculate his sentence of
imprisonment and for damages for every day he is incarcerated over ten years.
The commissioner reviewing
Davis's petition recommended that it be
dismissed without prejudice for lack of subject matter jurisdiction based on a
failure
to
exhaust
Administrative
administrative
Remedy
remedies
Procedure ( CARP),
pursuant
LSA-R.S.
to
the
15:1177,
Corrections
et seq. 2
In
accordance with the commissioner's recommendation, the district court signed a
judgment on January 2, 2015, dismissing Davis's petition without prejudice, and
Davis appealed.
1
A motion for clarification of sentence, filed in Davis's criminal proceeding in the Ninth Judicial
District Court in Rapides Parish, was attached to his petition. The motion was denied on September
11, 2014. The order denying the motion provided, in pertinent part:
The diminution and computation of a sentence lay within the power of the
Department of Corrections exclusively. It is further provided that if [Davis] has a
problem with the calculation of his sentence he may seek relief for such grievance
by initiating a claim pursuant to the Corrections Administrative Remedy Procedure
CARP") as prescribed by La. R.S. 15:1171, et seq.
2
The offices of the commissioner of the Nineteenth Judicial District Court were created by LSA-
R.S. 13:711.
The commissioners hear and recommend the disposition of criminal and civil
proceedings arising out of the incarceration of inmates. LSA-R.S. 13:713. A commissioner's written
findings and recommendations are submitted to a district court judge who may accept, reject, or
modify them. LSA-R.S. 13:713.
2
A prisoner alleging an error in time computation must pursue his claim
through CARP, with appellate review first at the district court and then with this
court. See LSA-R.S. 15: 1171,
et seq.
Davis's petition for judicial review challenges
the DPSC's computation of sentence, which at first glance appears to raise a
question for disposition under CARP.
However, upon review, the only issue Davis
raised to the DPSC was that his sentence was illegal because the sentencing judge
ordered that his sentences run consecutively.
This is not a claim appropriate to
disposition through CARP, because the DPSC had no power to alter Davis's
sentence.
See Madison v. Ward, 00-2842 ( La.App. 1 Cir. 7 3
/ /02), 825 So. 2d
1245, 1255 (en bane). Instead, this claim should have been raised either through
timely motion for reconsideration of sentence directed to the sentencing court
LSA-C.Cr.P. art. 881.1), timely direct appeal of that sentence to the appropriate
court of appeal, or at any time by a motion to correct illegal sentence (LSA-C.Cr.P.
art. 882A) directed to the sentencing court. See Madison, 825 So.2d at 1255.
The record does not indicate whether Davis attempted to challenge his sentence
through any of the appropriate, available, procedural vehicles. We further observe
that, because Davis was sentenced in Rapides Parish, neither the Nineteenth
Judicial District Court nor this court would have had jurisdiction over such a
challenge. See Madison, 825 So.2d at 1255.
For the above and foregoing reasons, this appeal is dismissed.
associated with the appeal are assessed to Derrick Davis.
APPEAL DISMISSED.
3
All costs