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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23176
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was advised by my attorney to plead guilty to criminal

Customer Question

I was advised by my attorney to plead guilty to criminal trespassing. I now realize that I cannot get my record expunged. It was my first offense. Do I have any other options?
JA: You're dealing with a tough issue. But don't worry -- you're in good hands. Because laws vary from state to state, could you tell me what state is this in?
Customer: Texas. Tarrant county
JA: Have you consulted a lawyer yet?
Customer: I have not. My current attorney is not returning my calls and told me to contact him after I've completed probation
JA: Is there anything else the Criminal Lawyer should be aware of?
Customer: My ex girlfriend signed an affidavit that included many false statements
JA: OK. Got it. I'm sending you to a secure page on JustAnswer so you can place the $5 fully-refundable deposit now. While you're filling out that form, I'll tell the Criminal Lawyer about your situation and then connect you two.
Submitted: 4 months ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 months ago.


I'm Zoey and I'll be assisting you. I'm reviewing your question now. Are you online at this time?

Expert:  Zoey_ JD replied 4 months ago.

Have you already been sentenced to this offense? Was the original charge a trespass, was it reduced for purposes of this position?

Customer: replied 4 months ago.
Customer: replied 4 months ago.
The original charge was burglary but was reduced to criminal trespass, class b
Customer: replied 4 months ago.
Original charge was attempted burglary
Customer: replied 4 months ago.
I have been sentenced and given 6 months probation
Expert:  Zoey_ JD replied 4 months ago.

Thank you. Give me a few moments to type a response.

Customer: replied 4 months ago.
Ok. Thank you
Expert:  Zoey_ JD replied 4 months ago.

It is very difficult, almost impossible, to get a plea back after the sentencing, because at the time of a guilty plea, the judge does his best to make an in-court record to make the plea airtight in order to avoid just this situation.

Your own plea allocution would be used against you to show that you made a knowing and voluntary waiver of your rights in order to accept the deal. You also put on the record that you were actually guilty of the charge.

So you need a strong legal basis to succeed at a post conviction remedy. "Buyer's regret" is not a legal basis to take a plea back. You'd need to have a Constitutional argument or an argument that you were denied due process of law. I don't see that in your fact pattern.

Finally, there's also one more thing you'd have to consider. Let's assume for the moment, just for the sake of argument, that you can get your plea back. The case goes back to what it was before. You will have to go to trial because in my experience, the state won't offer you another deal. And the judge cannot reduce the charges. So, you will be going to trial on the attempted burglary rather than on the trespass, which is exactly what you most wanted to avoid.

Expert:  Zoey_ JD replied 4 months ago.

In short, you may be better off just completing your probation and then applying for a pardon which, if you get one, would then allow Texas to expunge your conviction. Or, you could try down the road to reopen your case and get it dismissed in the interest of justice.

Customer: replied 4 months ago.
How much time before I can apply for a pardon? It doesn't seem like pardons are granted much
Expert:  Zoey_ JD replied 4 months ago.

They are not granted often, but this is a low level crime, so granting it would not be as risky for the governor as for some others.

You would, of course, have to wait until you complete your entire sentence before you could apply for a pardon. But you could do this yourself without a lawyer and reapply later if it's not granted.

The other option I mentioned is a dismissal in the interest of justice. This would require an attorney and is, like all post conviction remedies, a long shot. But with a compelling reason, a judge has the power to dismiss a conviction, even when there's no basis in law. Although judges do not like doing this, they have in order to avoid an injustice.

You would need to talk to a local criminal trial lawyer to see whether this is a viable possibility for you. The DA would weigh in on this, and they would be very likely to object. So this is not something you can do without a lawyer. But again, once the conviction has been dismissed, you should be able to expunge it from your record.

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