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Can I withdraw my no contest or guilty plea ? When is it too late?

Santa Clara, CA |

I got in an argument with a girl she hit me and then she called police on me. I had a warrant for failing to complete community service on a driving with a suspended license charge so they took me to jail. When I was arraigned I talked to a public defender for less then 30 seconds on my case, and next thing you know I'm pleading no contest without really understanding how serious the charges against me were. Being in custody, and having only the advice given from the public defender, to plead no contest, I was afraid that if I said anything else might be kept in jail for months waiting for trial. This was a little over 30 days ago, and i really don't know what to do I don't want this on my record and although I did 5 days in jail for this now I have to go to a restitution hearing...

Attorney Answers 4


  1. You probably won't be able to withdraw your plea, but speak to your attorney. Also, you need to think about what the likelihood that a trial will give you a better result than the plea. People always think that the "other" option will be better just because they don't like the choice they've made. think twice.

    No legal advice is given here. My responses to questions on Avvo are never intended as legal advice and must NOT be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions & Answers forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. I am only licensed in the States of California and New York and the District of Columbia


  2. Mr. Solis is correct in his analysis. I would only add that withdrawing a guilty plea/no contest plea is an uphill battle. The court presumably put on the record that you understand all of the rights you are waiving by pleading no contest and most judges are very careful to have a complete waiver from you in this regard precisely so that you cannot later withdraw your plea.

    Also, it is unclear from your question whether you pleaded guilty to domestic violence or whether it was simply a probation violation stemming from your failure to complete your community service
    .
    As Mr. Solis suggests, first you should consider whether there is any real possibility that you would get a better result by going back to square one. If you honestly do, contact your attorney to discuss your options. If your attorney is non-responsive, then you can call a private attorney to consult with him or her regarding your options.

    Best of luck-

    Martin

    The information provided in this answer is for general information only – such information is NOT legal advice for any case, investigation, or any other legal matter. Reading, receiving, or conveying the information in this answer does not create an attorney-client relationship.


  3. You have 6 months to withdraw a plea under Penal Code section 1018:
    "
    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.

    After six months, your choices are a habeas corpus petition or a petition for a writ of error coram nobis, neither of which is likely to be granted except in extraordinary circumstances.
    You should contact an attorney.

    The opinions rendered herein are based on general principles of law. Laws vary from jurisdiction to jurisdiction and there are often numerous factors which can render advice or an opinion inapplicable. You should NOT make any decisions about the handling of a legal matter without first directly consulting with an attorney about the particulars of your case.


  4. I would like to add that Solis is right. Withdrawing your plea almost always means you will have to accuse your attorney that they gave you some kind of bad advice. It sounds more like you were in a hurry to get out and pleading guilty was the path. The judge will also second guess you in that they will look you in the eye and say, "Do you remember when I asked you if anyone forced you to plead guilty and whether you are pleading guilty out of your own free will?" If the court took your plea correctly, withdrawal is in fact an uphill battle.

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