Can a guilty plea be taken back?
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Can a guilty plea be taken back?
My son’s father was arrested in mid-February for first degree armed robbery. This is his first offense. His public defender and the prosecuter cornered him and scared him into taking a 7-year plea. He isn’t very educated. He never attended high school. Can the plea be taken back?
Asked on April 20, 2009 under Criminal Law, New Jersey
Martin Matlaga / Martin D. Matlaga, Esq., LLC
Answered 11 years ago | Contributor
The answer is "yes," but under very strict circumstances related to things like his assertion of
innocence, undue influence, didn't know or understand what he was doing, etc. If your son's
father was charged with 1st degree Armed Robbery, don't forget that he's exposed to a maximum
of twenty (20) years in prison after an unfavorable verdict. And this charge comes under what is
known as the "No Early Release Act" or "85% rule." This means that, if your son's father goes to
trial and gets an unfavorable verdict, he must serve 85% of whatever sentence he is given by the
judge before he goes before the Parole Board for the first time. What's crucial are the facts in his
case. On the other hand, if your son's father is truly innocent, my advice is to FIGHT the charges all
the way! In the end, this decision must be made by him. It's his life. Call me at (732)932-7226
(office) or (732)710-0004 (cell).
R.C., Member, Connecticut Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
If your son's father is really convinced of his innocence, he can make a try at withdrawing his
guilty plea. This past February the New Jersey Supreme Court decided that under certain
an earlier guilty plea may be withdrawn (2-4-09 State v. Tony L. Slater (A-72-07)). The court listed
the following four factors to be considered:
1) whether the defendant has asserted a claim of innocence backed up with some evidence that the innocence claim has substance;
2) his reasons for withdrawal (once again, why does he want to change his plea--is it that he
feels he was unduly influenced, or that he really is innocent and can show it, or that he didn't understand what he was doing);
3) the existence of a plea bargain; (I'm assuming that your son's father didn't make a plea
bargain because if he did, that will definitely harm his chances);
4) whether withdrawal could result in unfair prejudice to the state or unfair advantage to the accused (this would be more relevant in a change from "not guilty" to "guilty" plea, because the state may have already done a great deal of pretrial preparation).
The Court said that not every one of the four factors needed to be met, but the substance of
the reasons and results of withdrawal must be must be balanced as a whole. Oh, and definitely, if
at all possible, you son's father needs to change his public defender. Also, the fact that your son's
father has little education and may really have not realized what he was
giving away may act in his favor.
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