September 22, 2008 By Wallin & Klarich

Why hiring a skilled criminal defense attorney can help you avoid a criminal conviction

We often receive questions about how a person who has plead guilty to a crime can return to court and withdraw his guilty plea. The answer is that in some cases we will be able to accomplish this for our clients but in others we may not be able to do so.

The law states that after entry of a plea of guilty or nolo contendere and before sentence, the court should allow the defendant to withdraw the plea for any “fair and just reason”. To determine what is “fair and just”, the court should weigh any prejudice to the prosecution caused by reliance on the defendant’s plea.

After a defendant has been sentenced pursuant to a plea of guilty or nolo contendere, the court should allow the defendant to withdraw the plea whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a “manifest injustice”. Manifest injustice may result if the defendant was denied the effective assistance of a criminal defense lawyer; the plea was not entered or ratified by the defendant or a person authorized to act in the defendant’s behalf; the plea was not voluntary, or was entered without knowledge that the sentence actually imposed could be imposed; or if the defendant did not receive the sentence agreed to in the plea agreement and the prosecuting attorney failed to perform as promised in the plea agreement.

The court that accepted your guilty plea has great discretion in considering your motion. What this means is that unless you can show that the judge “abused his discretion” in denying your motion to withdraw your plea the courts ruling will stand. One thing the court considers is how long you have waited before attempting to withdraw your plea. If you wait too long the chances will drop dramatically of having your plea withdrawn.

In most courts, before the court accepted your guilty plea you were required to sign legal forms that stated you understood all your legal rights and were properly represented.

When you return to court you will have to have your lawyer explain to the judge why the form you signed should be set aside.

If you are considering withdrawing your guilty plea it is critical you seek the legal advise of a highly skilled California criminal defense law firm such as Wallin and Klarich so we can provide you with all of the legal advise you will need to make the best decision possible in your case. We will be there when you call. 888-749-0034 and visit our website

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