The Court Rule specifically provides that the Motion is to be filed before sentencing. If you have entered a plea, and after filing it decide that you want to take back your plea, you can file the Motion as of right by the permission given by the rule. This does not mean the Court will automatically grant your motion, it means you get to file it and have at least a preliminary hearing as to the basis for the Motion. The standard of review typically applied by the Court, weighs the policy considerations of finality of judicial proceedings against the considerations of whether you entered into the plea truthfully, voluntarily, and knowingly. For example, you will need to establish that you did not provide an adequate factual basis for the crimes to which you pled; that you did not understand the sentencing consequences; or, that the charging document was fatally defective. If you have entered a plea and want to withdraw it, discuss the possible basis with your lawyer before sentencing.
Motions to Withdraw the Plea After Sentencing
The Court Rule specifically provides that the Court may permit the Motion to be filed after sentencing, but imposes a condition precedent, (something that must precede the Court's decision to allow the Motion to be filed) by requiring that you establish that the reason the Court should permit the Motion to be filed is to correct a 'Manifest Injustice'. This is an additional requirement to the ones listed above under Motions Before Sentencing. In essence, this is not simply that you changed your mind, but that something which is 'obviously unfair' or 'shocking to the conscience' has occurred, either before or after the plea, that you were not aware of; and, if you had been, that you would not have entered the plea. A Manifest Injustice is an 'unfairness' that is direct, obvious, and observable; and, which you can place before the Court to establish why the Court should allow the Motion to be filed after you have been sentenced. Discuss this with your lawyer before filing the Motion.
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