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Does an expungement have to be reversed before a defendant can bring a motion to withdraw a guilty plea?

Los Angeles, CA |
Attorney answers 4

Best Answer
Posted

First of all, a so-called "expungement" in California doesn't really expunge anything. It is a dismissal under Penal Code 1203.4, which adds a note to the court's records that you were allowed to withdraw your plea after completion of probation.

The conviction still counts as a "prior" to add time to the sentence for any future convictions, it does not have any effect on sex offender registration or firearm restrictions (if those apply to your offense), and the conviction must be disclosed when applying for government licenses or jobs.

If you want to withdraw the plea, and take yourself back to the situation you were in before you entered it, that's a different matter. You're probably well past the time to withdraw the plea, but it may be possible to make a motion to vacate the judgement under certain, limited circumstances -- for instance, if you are a non-citizen and you were not advised that your plea might get you deported.

You really need to discuss the specifics of your circumstances with a CALIFORNIA attorney.

The two answers from out-of-state lawyers, who practice in Illinois and Pennsylvania, are not correct statements of California law. Getting legal advice from an attorney who is not licensed in your state is like getting medical advice from a veterinarian; there are some similarities, but there are enough differences to make the advice unreliable, and possibly downright dangerous.

Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this site, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.

Asker

Posted

Wow, thanks! That was great. I've got the motion pending and the prosecutor has filed an opposition. His opposition keeps repeating that the misdemeanor has been expunged, plea withdrawn already. He's also claiming that I'm guilty of the original charges by showing hearsay evidence.

Michael Carter Lukehart

Michael Carter Lukehart

Posted

You might want to consider an extraordinary writ. Other than that, Mr. Marshall's comments are well taken.

Robert Lee Marshall

Robert Lee Marshall

Posted

I didn't mention the possibility of a writ petition because it's very unlikely, at this stage of the proceedings, that there would be grounds for the court to issue a writ. (A writ is a court order. The party seeking relief files a petition, asking the court to issue a writ telling someone to do -- our not to do -- something.) The most common writ in criminal cases is habeas corpus, but the petitioner has to be in custody. For purposes of a habeas petition, custody includes being on probation, because the court has placed limits on the defendant's liberty. Since this case was already dismissed under Penal Code §1203.4, the asker is off probation and habeas is unavailable. A petition for writ of coram nobis addresses legal errors, where everybody involves makes a mistake based on bad information AND the correct information couldn't have been known, with reasonable efforts, at the time. Your chances of filling a successful writ petition on your own are slim to none. I'd strongly suggest talking to an attorney in your area who is experienced in post-conviction relief

Posted

If the case has already been expunged, the time limit for seeking to withdraw a guilty plea is probably long gone.
Sincerely,

Attorney Mitchell S. Sexner
Mitchell S. Sexner & Associates LLC /o
Defending your rights since 1990
1 (800) 996 -4824
Email: : msslawoffices@sbcglobal.net
Website: Criminal and Traffic Attorneys

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Posted

I have to agree with Mr. Sexner. What you are trying to do seems very unusual. An expungement is performed after a sentence is completed. The withdraw of a guilty plea is typically shortly after the plea is entered. You should contact an attorney in your area to explain what you are trying to accomplish.

Michael L. Doyle
(215) 900-5565

Posted

Technically, once your case is expunged, your guilty plea has already been withdrawn. Some more information here would be helpful, as your question is a little confusing. If you could give us the reason you want to withdraw your plea (typically, when a client wants to expunge their case or withdraw their plea there is some motivating factor e.g. they are going through a background check at work) we may be able to give you some better direction.

SLG Criminal Law Group
515 South Flower Street
36th Floor
Los Angeles, CA 90071
213-236-3660