Summary: A defendant who recently entered a plea of guilty or no contest may use a Motion to Withdraw Plea to ask the court to withdraw his plea and allow him to proceed to trial.
Attorney: If the defendant did not have an attorney at the time his plea was entered, an attorney is probably not needed to bring the actual Motion to Withdraw Plea. However, an attorney should be consulted to make sure that the plea should be withdrawn. Very often, it is a bad idea to withdraw a plea.
If the defendant did have an attorney at the time his plea was entered, he should definitely have an attorney for the Motion to Withdraw Plea.
Danger: If the motion is granted, the defendant will have to defend against the original charges, and the prosecution may try to add additional charges which could result in a worse plea bargain or a harsher sentence than the original deal.
Lead Statute: Penal Code §1018
Form: There is no form, but a sample motion can be found here. (Sample Motion to Withdraw Plea)
Where to File: In the Superior Court that took defendant’s plea.
Who to Serve: If the motion is written, which it usually is, the district attorney must be served a copy of the motion, and proof of service must be filed with the court. A courtesy copy should also be given to the probation department.
Appearance Required: Yes. 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: Before defendant has been sentenced or, if the defendant was sentenced to probation, within six months of sentencing.
Effect if Granted: The criminal conviction is overturned and the case is again set for trial or other pre-trial proceedings, such as preliminary hearing.
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 Motion to Withdraw Plea.
The motion will almost always be granted for a defendant who entered his plea without benefit of an attorney, but for a defendant who had an attorney at the time the plea was entered, a simple change of heart is not usually enough for a plea to be withdrawn. The court usually wants a good reason, such as:
- The defendant did not understand his rights.
- The defendant did not understand the consequences of his plea.
- A witness formerly missing is now available.
- Newly discovered evidence will help prove the defendant’s innocence.
- Defendant’s attorney made misrepresentations about the plea.