A negotiated plea is essentially a contract between the prosecution and the defense, but the judge does not have to accept a plea. Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead.
Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing. Therefore, the client had an absolute right to withdraw the plea before sentence was pronounced, but not after sentence was pronounced.
After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion until the end of that Term of Court. In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”.
Mere regret does not constitute manifest injustice. The client has to show that the plea was not a knowing, intelligent and voluntary plea. Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening.
It would not be advisable for the client to use the same attorney to withdraw the plea as the client used before. For example, one of the reasons the client may want to argue is that the lawyer misinformed the client. Obviously, the same lawyer cannot make that argument against himself, and certainly can’t cross-examine himself. That’s why I advise the client to speak with an attorney other than the original one about withdrawing the plea.
Clients are entitled to an attorney on a motion to withdraw a plea if the client cannot afford one and if the client is raising the issue of ineffective assistance of counsel in the client's motion, but if it was a public defender that got the client into a plea that the client now wants to withdraw, why would the client use a public defender again?
The client must also file the motion to withdraw a guilty plea in the same term of court as the plea. Visit my website to see the term of court for your particular county. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea.
Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to the client would be through habeas corpus proceedings. Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea via a Writ of Habeas Corpus.
To answer your specific questions: I do NOT think the attorney is obligated to file the motion unless the client alleges a valid basis for the motion. To file a motion without basis would be to file a frivolous motion, which attorneys are never obligated to do. "It's not fair" is not a valid basis. There must be a "manifest injustice."
If the motion is timely filed and it alleges a manifest injustice, I think the court must at least hear the motion before denying it, and I think it will be denied.
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Others may disagree, but since a defendant is entitled to counsel on a motion to withdraw a guilty plea I believe the attorney does have to file the motion. However, based on what you describe, there is no way a judge will grant such a motion simply because the defendant is dissatisfied with the sentence.
The Georgia code allows for a guilty plea to be withdrawn by the Defendant anytime before the Judge pronounces the sentence. If the Defendant has already pled guilty and the Judge has entered the sentence there must be a showing of "Manifest Injustice" in order to meet the requirements to set aside the Plea of Guilty. Simply not being happy with the plea after it has been entered should not be sufficient to meet the "Manifest Injustice" standard. I hope this gives you some insight into the process for withdrawing a guilty plea.
George McCranie www.mccranielawfirm.com
The information provided in this response to a question is not legal advise and is provided only for general information purposes. My response should not be taken as legal advise as no attorney / client representation exists. Additionally, the information given in this answer is specific to the State of Georgia only and should not be applied to any other state.