Dunlap v. State, 70 So. 3d 1140

Dunlap pleaded guilty to three counts: possession with intent to sell cocaine, felon in possession of a firearm, and possession of marijuana, with habitual offender status on Counts I and II.
In 2007, he was sentenced to 25 years on Count I (15 to serve, 10 on post-release), 3 years on Count II to run concurrently, and Count III was remanded.
Shortly after, a search revealed drugs on Dunlap’s person, leading the State to seek resentencing on Count I for a harsher term.
The circuit court resentenced Dunlap by altering the time to serve on Count I to 25 years with 20 to serve and 5 years of post-release supervision.
Dunlap challenged the resentencing by post-conviction relief motion, asserting due-process and double-jeopardy violations, and claiming he was entitled to an evidentiary hearing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Double jeopardy and re-sentencing	Dunlap argues re-sentencing violated double jeopardy and due-process.	Court exercised inherent authority to amend sentence within same term; no double jeopardy.	Resentencing within the same term did not constitute double jeopardy.
Due-process and right to appeal/withdraw plea	Court did not advise of appeal rights or allow withdrawal of plea before harsher sentence.	No requirement to inform of appeal rights or to permit withdrawal in this context.	No due-process violation; no withdrawal or appeal rights required in this situation.
Evidentiary hearing on post-conviction relief	Dunlap was entitled to an evidentiary hearing before resentencing.	The court properly dismissed without an evidentiary hearing given the record.	No error in denying an evidentiary hearing; summary dismissal proper.
Ineffective assistance of counsel	Counsel failed to object to the re-sentencing on double jeopardy grounds.	No deficiency; the resentence was within the court’s inherent power, so no prejudice shown.	Ineffective assistance claim fails under Strickland; no merit.

Leverette v. State, 812 So. 2d 241 (Miss. Ct. App. 2002) (inherent authority to alter sentence within same term)
Ales v. State, 921 So. 2d 1284 (Miss. Ct. App. 2006) (amendment of sentence within term is permissible)
Pegues v. State, 840 So. 2d 721 (Miss. Ct. App. 2002) (affirming re-sentencing within the same term)
Cook v. State, 990 So. 2d 788 (Miss. Ct. App. 2008) (no obligation to inform guilty plea rights or withdrawal of plea)
Coleman v. State, 979 So. 2d 731 (Miss. Ct. App. 2008) (no requirement to inform defendant of appeal rights)
Miss. Comm'n on Judicial Performance v. Russell, 691 So. 2d 929 (Miss. 1997) (judicial authority over sentencing within term)
Vielee v. State, 653 So. 2d 920 (Miss. 1995) (post-conviction relief standards; evidentiary considerations)
Williams v. State, 872 So. 2d 711 (Miss. Ct. App. 2004) (standard of review for post-conviction relief)
Brown v. State, 731 So. 2d 595 (Miss. 1999) (de novo review for questions of law)
Burrough v. State, 9 So. 3d 368 (Miss. 2009) (summary dismissal of post-conviction relief when plainly lacking entitlement)