After being charged with a crime, you’ve met with your attorney and he’s convinced you that it’s in your best interest to enter a plea of “guilty” to the charges in the complaint in exchange for a “more lenient sentence.”

Later you find out the full ramifications of entering a plea of guilty to the charges and wish you had never accepted the plea bargain. Now you want to know if it’s possible to withdraw your plea .

Although this is very hard to do, it CAN be done. Thanks to California Penal Code section 1018, you are allowed to file a motion to withdraw your guilty plea. The penal code states:

Unless otherwise provided by law, every plea shall be entered or withdrawn by the defendant himself or herself in open court. No plea of guilty of a felony for which the maximum punishment is death, or life imprisonment without the possibility of parole, shall be received from a defendant who does not appear with counsel, nor shall that plea be received without the consent of the defendant’s counsel. No plea of guilty of a felony for which the maximum punishment is not death or life imprisonment without the possibility of parole shall be accepted from any defendant who does not appear with counsel unless the court shall first fully inform him or her of the right to counsel and unless the court shall find that the defendant understands the right to counsel and freely waives it, and then only if the defendant has expressly stated in open court, to the court, that he or she does not wish to be represented by counsel. On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted. Upon indictment or information against a corporation a plea of guilty may be put in by counsel. This section shall be liberally construed to effect these objects and to promote justice.

So what is required, and how do you know if you meet the criteria? Well, first you need to determine whether you meet the time requirement. As suggested above, the time requirement is

1.  any time before judgment (sentencing);

                  or

2.  within six months after an order granting probation is made if entry of judgment is suspended.

Once you have determined that you meet the time requirement, you must show “good cause” to have your plea withdrawn. How is good cause determined? This is the difficult part, as “good cause” is much harder to prove to the court than to anyone else.

You must be able to show that:

1.  You were not represented by an attorney. If you chose to represent yourself, it is possible you did not fully understand your rights and the consequences of your plea.

2.  You were represented by an incompetent attorney. This is also commonly referred to as “ineffective assistance of counsel.” This defendant will have a reason why they believe their attorney did not do their job well enough. You must be able to show overwhelming proof of errors made by your attorney or that he was ill-prepared or did not thoroughly explain your rights as well as the potential consequences of entering the guilty plea.

3.  There was a language barrier. You will need to show that the interpreter may not have interpreted everything, or interpreted incorrectly, or perhaps no interpreter was provided.

4. You were coerced, pressured or threatened into taking this plea. This can be from anyone (Attorney, prisoners, etc…)

5. You weren’t aware of a professional licensing suspension/revocation. Some convictions can hinder you from obtaining or keeping certain licenses.

If you feel that you meet the criteria, the next step is to contact an experienced attorney to prepare the motion. Because of the degree of difficulty in having these motions granted, it is highly recommended that you hire an attorney who is well-versed in preparing motions to withdraw a plea. A good attorney is key to convincing the court that you do, in fact, meet the criteria.

If you have already been sentenced, or are beyond six months after the order granting probation, you are no longer eligible to file a motion and must take a different route. You would have to file a petition for post-conviction relief under Crim. P. 35(c) in which you are claiming that the guilty plea was entered as a result of coercion and/or ineffective assistance of counsel. If convicted of a felony, you have three years from the date of sentencing to file this petition. If you were convicted of a misdemeanor, you only have eighteen months to file. You might also be able to get your conviction overturned by filing a petition for a writ of Habeas Corpus which is a court order to test whether or not someone is being lawfully detained.

If your motion to withdraw is granted, it does not mean that the charges against you are dropped. Withdrawing the plea merely starts the case over again, at which point, you will be brought back to the arraignment stage. Also, any deals that the prosecution may have presented can be possibly revoked at their discretion.

If you lose this motion, the original judgment and sentence stand as entered. However, you can always file an appeal if you believe you have merit.

Overall, this is a difficult process, but if you believe that you were not adequately represented or fully informed prior to pleading guilty, feel free to call my office for a free 30-minute consultation.