CAN I WITHDRAW MY GUILTY PLEA?

Around 98% of criminal cases get resolved in a guilty plea rather than a trial. This is because trials are risky, and often times, the state will negotiate a plea that is in your favor, resulting in no jail time and sometimes even no criminal charges. Pleas can be a life saver for a defendant. However, it is important that the defendant knows all of their important rights that they give up BEFORE taking a plea. For instance, they give up the right to confront witnesses, the right to confront evidence, the right to a jury trial, the right to make the state prove their guilt beyond a reasonable doubt, and much more.

The attorney and the judge are both supposed to ensure that you are freely and voluntarily entering a plea of guilty. When both do not ensure you are freely and voluntarily giving up your rights, a withdrawal of guilty plea should be considered.

How Can I Withdraw My Guilty Plea?

The motion to withdraw the plea of guilty is the most important step in effecting the withdrawal of the plea. The motion to withdraw the guilty plea in the Georgia courts, prior to sentencing, must first be made pursuant to OCGA 17-7-93 (b) which states, “If the person pleads “guilty,” the plea shall be immediately recorded on the minutes of the court by the clerk, together with the arraignment; and the court shall pronounce the judgment of the law upon the person in the same manner as if he or she had been convicted of the offense by the verdict of a jury.  At any time before judgment is pronounced, the accused person may withdraw the plea of “guilty” and plead “not guilty.”

This means that an accused may withdraw a guilty plea at any time before judgment is announced and may then plead not guilty, but once sentence is pronounced, a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed unless there is a manifest abuse of discretion. ?Craft v. State, 1998, 234 Ga.App. 305, 506 S.E.2d 663; ?Rowe v. State, 2000, 246 Ga.App. 855, 542 S.E.2d 578; ?Dalton v. State, 2000, 244 Ga.App. 203, 534 S.E.2d 523, reconsideration dismissed; ?Wilcox v. State, 1999, 236 Ga.App. 235, 511 S.E.2d 597; Kight v. State, 1981, 158 Ga.App. 698, 282 S.E.2d 176; Conlogue v. State, 1979, 243 Ga. 141, 253 S.E.2d 168.

However, after the sentence is pronounced, the judge should allow the defendant to withdraw a plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

When Can I Withdraw My Guilty Plea?

A motion to withdraw a guilty plea must be timely. “It is well settled that when the term of court has expired in which a defendant was sentenced pursuant to a guilty plea[,] the trial court lacks jurisdiction to allow the withdrawal of the plea.” Davis v. State, 274 Ga. 865, 865, 561 S.E.2d 119 (2002). “After the expiration of the term … the only remedy available to the defendant for withdrawing a plea is through habeas corpus proceedings.” Downs v. State, 270 Ga. 310, 310, 509 S.E.2d 40 (1998). The terms of the court can be found in OCGA § 15-6-3. If you miss the terms of the court, your motion would be considered untimely. At that point the only remedy you have to withdraw your guilty plea is through a habeas corpus proceeding.

Why Bixon Law?

Long story short, you don’t want to be late on a withdrawal plea AND you don’t want an attorney who doesn’t explain to you all the rights you give up when entering into a guilty plea. You do want a timely attorney who is concerned about your criminal record. Here at Bixon Law, we are the attorneys you need to help you with your plea! Give us a call today.