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Under California Penal Code Section 1018, a defendant is allowed to withdraw his or her guilty plea or no contest plea under certain circumstances. The defendant must demonstrate good cause and file a motion to withdraw a plea either before sentencing or within six months of being sentenced.
The defendant has a right to file a motion to withdraw a plea if he or she plead not guilty or no contest without an attorney. If the defendant had an attorney when pleading guilty or no contest, he or she may still be able to file a motion to withdraw a plea.
A defendant may file a motion to withdraw a plea if:
- The defendant discovers that he or she is going to incur an unexpected penalty;
- The defendant believes his or her attorney was incompetent; OR
- The defendant realizes that he or she may be able to get a more favorable outcome by entering a not guilty plea.
A motion to withdraw a plea must show good cause for withdrawing a defendant’s guilty or no contest plea. The defendant must show clear and convincing evidence that the initial plea was entered as a result of some sort of incompetence, mistake or ignorance. Good cause to file a motion to withdraw a plea may include:
- The defendant was not represented by an attorney entering the plea;
- The defendant was not aware of all of the consequences of the plea (i.e. mandatory prison sentence, deportation or professional license suspension/revocation);
- The defendant was coerced into making the plea;
- The defendant was represented by an incompetent attorney when entering the plea; or
- There was a language barrier or other hardship that caused the defendant to plead guilty or no contest.
Although I do not practice in California, in my experience, proving good cause is not easy. This is due to the fact that typically, when a defendant enters a plea, the court will go through a fairly lengthy/detailed series of questions to ensure that a defendant is not under the influence, that they realize they had the right to speak with a lawyer and consult with a lawyer, that they are making a plea voluntarily, that they understand what the plea means, and so forth.
As such, if you are considering filing a motion to withdraw your plea, I would strongly encourage you to consult with a lawyer first. Many lawyers offer free or low cost consultations and there is of course no obligation that you hire or be represented by a lawyer.
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