Dunlap v. State
| Docket Number: | 2009-CP-01735-COA Linked Case(s): 2009-CP-01735-COA ; 2009-CT-01735-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-19-2011 Opinion Author: Griffis, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Resentencing - Double jeopardy - Ineffective assistance of counsel - Evidentiary hearing Judge(s) Concurring: Lee, C.J., Irving, P.J., Myers, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: PCR; Dismissal Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 09-23-2009 Appealed from: DeSoto County Circuit Court Judge: Robert P. Chamberlin Disposition: Motion for Post-Conviction Relief Dismissed Case Number: CV2009-00226 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Rico Kiwanis Dunlap |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Resentencing - Double jeopardy - Ineffective assistance of counsel - Evidentiary hearing |
| Summary of the Facts: | Rico Dunlap entered a plea of guilty to possession of cocaine with the intent to sell, felon in possession of a firearm, and possession of marijuana. Under Count I, he was sentenced to twenty-five years, with fifteen to serve followed by ten years of post-release supervision. On Count II, Dunlap was sentenced to three years to be served concurrently with the sentence in Count I. Count III was remanded to the file. Dunlap appeared before the circuit court again on the State’s motion to set aside the sentence while in term. The State presented evidence that, after Dunlap had entered his guilty plea and was sentenced, he was searched and the officer who conducted the search found a bag on Dunlap’s person containing cocaine, marijuana, and hydrocodone. Dunlap admitted that he was carrying the drugs. The State requested that Dunlap be resentenced due to the high probability that Dunlap possessed the drugs when he appeared in court to enter his guilty plea. The circuit judge modified Dunlap’s time to serve on Count I to a twenty-five-year sentence with twenty years to serve and five years of post-release supervision. Dunlap filed a motion for post-conviction relief which was dismissed. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Resentencing Dunlap argues that the re-sentencing constituted double jeopardy; his due-process rights were violated because the circuit court did not advise him that his sentence could be appealed to the supreme court and because he was not allowed to withdraw his guilty plea before a harsher sentence was imposed; and he was entitled to an evidentiary hearing before he was resentenced. What Dunlap fails to recognize is that the circuit judge did not sentence Dunlap a second time for the same crime; instead, the circuit judge exercised his inherent authority to alter a sentence until the regular term of court expires. Thus, the re-sentencing did not constitute double jeopardy. Further, a trial court is not required to inform a defendant who pleads guilty of his right to appeal the resultant sentence. In addition, Dunlap did not enter a separate guilty plea on Count I for which another hearing was necessary. The circuit judge had complete authority to modify Dunlap’s time to serve on the sentence in Count I. Issue 2: Ineffective assistance of counsel Dunlap argues that his counsel was ineffective because counsel failed to object to the re-sentencing based on double jeopardy. Dunlap has failed to prove any deficiency on the part of his counsel. His only claim is that his counsel did nothing while the circuit court changed his sentence. However, this alteration of his sentence was within the inherent power of the circuit court. Issue 3: Evidentiary hearing Dunlap argues that the circuit court erred in summarily dismissing his motion for post-conviction relief without first conducting an evidentiary hearing. However, the trial court may summarily dismiss a motion for post-conviction relief if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief. It was clear from the motion that Dunlap was not entitled to the relief requested; therefore, the circuit court properly dismissed the motion. |
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