Motion to Withdraw Plea (Before and After Sentencing)

withdraw plea

At the beginning of a criminal case, the court will expect you to enter a plea so your claim to innocence or guilt is on the record. Your statement of guilty or not guilty determines how the prosecutors will approach their efforts to get you convicted and how your attorney will build your defense. 

What happens if your attorney misinforms you of the consequences of your plea? Or what if new evidence surfaces that will have a significant impact on the outcome of your case? In certain circumstances, it is possible to withdraw your plea before or after the sentencing phase of your trial. Two major factors come into play when filing a motion to withdraw a plea: timing and the judge. Having an experienced criminal defense lawyer to help you create a successful action is critical because of these two important elements of your request.

Timing for Withdrawal of Plea Motions

If you need to file a motion to withdraw, timing is a vital factor that you need to consider first. Before or after sentencing are the only time frames when a defendant can take this type of action. If you can, try to file this motion prior to sentencing as standards for a favorable ruling are lower at this point in your case. 

Withdrawal of a plea after sentencing, while still protected under Florida Criminal Procedure, is much more difficult. The judge will likely need a lot more persuasion, and your chances for success are lower, but it isn’t impossible. If you haven’t retained a criminal defense lawyer to represent you yet, it’s imperative that you do so to learn more about the impact it will have on your sentencing. 

Motion to Withdraw Plea Before Sentencing

Under Florida Criminal Procedure 3.170(f), withdrawal requests at any point before sentencing are subject to the court’s discretion.  A judge may or may not have a favorable attitude about your decision, but the prosecution cannot use your motion as ammunition against you in future actions. The judge and the state cannot ask a jury to consider this motion as evidence against you either.  

If your supporting evidence to grant your request doesn’t demonstrate the court made an error of some kind, the judge may outright deny your withdrawal action. If the court’s record can’t show conclusive proof there weren’t any mistakes made, it may take one of two steps:

  • Hold an evidentiary hearing
  • Accept your premise and grant your motion

Situations where a judge could immediately side with your motion often involve you having made a plea involuntarily. Circumstances that make an individual’s plea invalid are:

  • Mental inability
  • Fear of retribution
  • Mistaken understanding or advice on your plea
  • An exchange for legal promises that aren’t possible
  • Rights violations
  • Poor legal representation

If you or your lawyer can establish you had your rights violated while making your plea, a judge will rule in your favor.

Having a defense attorney familiar with the court is one of the best routes to take. Not only do they have a rapport built with the clerks and prosecutors, but they may also have an easier time getting the judge’s approval. Another way to get a favorable ruling is if the judge naturally agrees with you and the case goes to trial.  

Motion to Withdraw Plea After Sentencing

To withdraw your guilty or no contest plea after sentencing, you must meet tougher standards of proof and only have 30 days to write and file your motion according to Florida Criminal Procedure 3.170(I). You have to show evidence that your plea violates your rights as a defendant and is unjust. Scenarios that may compel the judge to grant your motion include:

  • Inability to make an intelligent plea
  • Attorney fails to inform the defendant of ramifications of a plea
  • Entering of a plea by the defense attorney without the client’s permission or knowledge
  • A trial may likely result in the defendant’s favor
  • A violation of the defendant’s constitutional rights
  • Involuntarily made a plea
  • New evidence becomes available (not always a guaranteed situation)

The justice system tries to deliver rulings swiftly and justly to keep cases from backlogging. When the court reviews your withdrawal motion, the effect on the prosecution is also a factor which gets consideration. This is due to the necessity of recalling witnesses and gathering of evidence once again to retry your case. 

Consult with Experienced Orlando Lawyers

By having your guilty or no contest plea withdrawn, your case will roll back to your legal standing before you initially made the plea. This allows your defense attorney to begin negotiating another deal or prepare for trial. You should use caution when filing a motion to withdraw a plea as there are no guarantees you will receive the same sentencing. It’s possible you may receive a sentence even harsher than the first. 

The Umansky Law Firm has a seasoned legal team that can answer all your questions about this process, inform you of possible consequences, and provide you with knowledgeable representation. As former state prosecutors, we know what conditions Florida courts demand to get your plea withdrawn successfully and the risks you face for taking this action. As members of Florida’s Legal Elite, we have more than 100 years of combined experience in criminal defense law and trial. Contact our office today at (407) 228-3838 for a free case evaluation.