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Sometimes we get “cold feet” about a big decision we just made. That shiny new car on the dealership’s lot seemed so nice at first but now that we have had the car for a few days we’re not sure made a good decision. Or we thought we saw ourselves spending our lives with that person we met at our friend’s party several months ago, but now that the “big day” is here we’re wondering if we’re ready to be married. So it should come as no surprise that some individuals have second thoughts or regrets regarding the plea agreement they just signed with the court. However, getting out of a plea agreement is not as simple as running from the altar or selling a new car back to the dealership.

Withdraws of Pleas are Left to the Discretion of the Court

You must first understand that in order to withdraw your plea agreement you must obtain permission to do so from the court. Courts are given discretion to decide whether to permit a plea withdraw in any given case but are also instructed to exercise that discretion liberally in permitting the withdraw of pleas.

Withdrawing your Plea Before Sentencing or Shortly After Sentencing

The most opportune times to withdraw your plea agreement are (1) before you formally enter a plea to criminal charges pursuant to the agreement; (2) before you are sentenced in your case but after you have entered a plea to criminal charges; or (3) shortly after sentencing. At the very least, most courts will require you to give a “good reason” why you should be permitted to withdraw your plea before granting your request. “Good reasons” might include:

  • The agreement you signed and submitted to the court is not the agreement you reached with the prosecutor;
  • You were impermissibly tricked or threatened to accept the plea agreement;
  • You have recently discovered or been made aware of new and exculpatory or exonerating evidence.

Withdrawing your Plea After Sentencing

If you wait weeks, months, or even years after your plea agreement has been accepted and entered into, you face a much more difficult challenge in having your plea withdrawn. At this point, you may need to show that the court must allow you to withdraw your plea in order to prevent “manifest injustice.” This is usually demonstrable only in cases where new and exculpatory evidence has only been recently discovered or it has been shown that the prosecutor deliberately hid exculpatory evidence from you and your attorney. It will not be considered manifest injustice – and hence you cannot withdraw your plea – because:

  • There were unintended collateral consequences of your plea (e., your employer terminated you because you pled to a felony charge);
  • You have now decided you want a trial on the charges;
  • You believe the prosecutor did not give you a fair offer or believe you can negotiate a new agreement.

One of a court’s chief concerns in deciding whether to allow you to withdraw your plea at this point is the availability of evidence and witnesses to the prosecutor. If several years have passed since you entered your plea agreement, important evidence or witnesses needed by the prosecutor to prove your guilt may have been irretrievably lost. Allowing you to withdraw a plea long after evidence has disappeared and witnesses vanished would be both patently unfair to the prosecutor and would lead to fewer plea agreements being made and/or accepted by the prosecution.

If you believe you do need to withdraw your plea, do so quickly. Hiring a criminal defense lawyer to assist you with your motion and hearing on your motion can also greatly increase your chances at succeeding on your motion.