Summary: A defendant who entered a plea of guilty or no contest may bring a Petition for Writ of Error Coram Nobis to ask the court to withdraw his plea and allow him to proceed to trial.
Attorney: It is highly advisable to have an attorney for all aspects of a Petition for Writ of Error Coram Nobis.
Danger: If a petition is granted, the defendant will often have to defend against the original charges, and the prosecution may add additional charges.
Lead Statute: No specific statute. Coram Nobis is a Common Law remedy akin to Penal Code §1018, but with many more requirement and no specific time restrictions.
Criminal Conviction: Challenged
Form: There is no specific form, but a sample petition will be found here (sample Coram Nobis)
Where to File: In the Superior Court that took the defendant’s plea.
Who to Serve: The district attorney must be served a copy of the petition, and proof of service must be filed with the court.
Appearance Required: Maybe. Technically, a petition for Writ of Error Coram Nobis should be filed without a hearing date set, but some courts allow the defendant (more correctly called the petitioner) to choose a date for hearing and then appear on that date to argue in support of the petition. A Petition for Writ of Error Coram Nobis, therefore, may be filed with or without a set hearing date.
If it is filed without a set hearing date, no appearance is required.
If it is filed with a set hearing date, the defendant must appear. In misdemeanor cases, an attorney may be allowed to appear in place of the defendant if the defendant files a waiver of personal appearance.
Time Limit: There is no fixed time limit, but the defendant must show diligence.
Effect if Granted: The criminal conviction will be overturned. The court may immediately set the case for trial or other pre-trial proceedings, or the court may require the prosecution to file a new criminal complaint.
If a defendant enters a plea of guilty or no contest, but then decides he would rather take the case to trial, he can bring a Petition for Writ of Error Coram Nobis even after the time for bringing a Motion to Withdraw Plea has passed. The petition can also be brought after trial if the defendant is no longer legally able to file a Habeas Corpus Petition.
The defendant must generally meet four requirements before a Petition for Writ of Error Coram Nobis will be granted:
- The defendant must show that some fact existed which, without fault of his own, was not presented to the court as the time of conviction.
- If the fact had been presented, it would have prevented the court from entering the conviction.
- The fact does not go to the merits of the case.
- The defendant was diligent in learning the new fact and bringing it to the attention of the court.
Some examples of newly discovered facts that might warrant granting of a petition include:
- The defendant was misadvised of his rights, such as the right to a jury trial and right to ccross-examination
- The defendant did not understand the consequences of his plea.
- The defendant received an illegal sentence, such as being ordered to register as a sex offender when the conviction was not for a sex offense.
- The court told the defendant that sex offender registration would end in ten years, but the Department of Justice is now requiring lifetime registration.
Some examples of newly discovered facts that will most likely NOT warrant granting of a petition include:
- A witness formerly missing is now available (because it goes to the merits of the case)
- A video tape proving defendant’s alibi has been discovered (because it goes to the merits of the case)
- Defendant’s trial attorney was incompetent (because ineffective assistance of counsel cannot be raised in a Coram Nobis Petition)
If a Petition for Writ of Error Coram Nobis is denied, the defendant can file a Notice of Appeal to ask the Court of Appeals to reverse the denial.