How do I take back a plea or sentence?

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How do I take back a plea or sentence?

Asked on October 29, 2013 under Criminal Law, California


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You should consult an experienced criminal defense attorney in your locality to assist you in your desire to withdraw a guilty plea to a crime. One in can be found. The answer to your question is as follows:

It’s not uncommon for those who’ve been accused of crime to plead guilty, only to later regret it. Whether it’s because of an unpredictably stiff sentence or “buyer’s remorse,” many defendants believe—rightly or wrongly—that they got a raw deal. The question is whether they can effectively rewind the proceedings by withdrawing their pleas.

Pre-Sentence: It Might Not Be Too Late

A defendant can withdraw a guilty plea that a judge hasn’t yet accepted. Also, defendants who have pleaded but not yet been sentenced can sometimes get out of their deals, particularly when the judge rejects the negotiated agreement pursuant to which the defendant pleaded. For example, if Clay pleads guilty to bribery in exchange for the prosecution’s agreement to a three-years-or-less sentence, but the judge indicates an intention to sentence him to five years, he can probably withdraw the plea.

Post-Sentence: A Tall Task

Some plea deals require the defendant to waive the right to appeal; not surprisingly, undoing a plea in these instances is particularly tough. But even without a waiver, once a judge has sentenced a defendant, the odds of getting out of a plea can be long.

After sentencing, the trial judge will typically set aside a conviction and allow plea withdrawal only if it’s necessary to avoid an obvious injustice. It’s not enough, say, that the prosecution agreed to and did recommend a certain sentence as part of a plea deal, but the judge imposed a longer one. After all, the judicial system prioritizes efficiency, and rehashing cases is no way to speed the docket along. In addition, judges entertaining plea withdrawals are supposed to consider their prospective effect on the prosecution. If, for instance, the prosecution lost contact with witnesses who were necessary for trial between the time of the plea and the attempted plea withdrawal, the judge might deny the defendant’s request.

Factors in Favor of Withdrawal

There are, however, instances in which judges can—and must—allow defendants to withdraw their pleas.

Indeed, they are required to set aside guilty pleas (even absent a defendant’s request) when they receive an indication that a defendant isn’t guilty or didn’t fully understand the charges or the effects of admitting guilt.

Likewise, certain factors support, but don’t mandate, a judge allowing withdrawal of a guilty plea. For example, judges are supposed to take into account the length of time between the plea and the attempt to withdraw; the quicker the attempt, the better for the defendant (unless it’s so prompt that it indicates haste). Another circumstance in a defendant’s favor is lack of counsel: Not having legal representation when pleading guilty is a fact tending to support subsequent withdrawal.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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