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Withdrawing a Plea Post-Conviction

In most cases, the courts are unwilling to allow defendants to withdraw a plea following a conviction. However, there are certain circumstances under which a court will allow a defendant to have a plea withdrawn from the record.

Typically, the time in which a defendant is allowed to change a plea of guilty, guilty but mentally ill or no contest is relegated to the period before sentencing is imposed. However, the courts maintain a special provision allowing defendants to withdraw their initial plea if they can establish “manifest injustice” in the entering of that plea. Essentially, this means a court can withdraw a plea if it is fair and just to do so. Establishing “manifest injustice” is a task best left to a knowledgeable criminal defense attorney, as it requires a detailed understanding of the law.

Situations in which the court is likely to accept a request for withdrawal include:

  • Bad or unreliable advice of previous counsel
  • Initial plea was made without the defendant’s knowledge, understanding or volition
  • Defendant was unaware of the possibility of probation
  • Defendant was unaware of the specific adverse immigration consequences associated with the plea or
  • Defendant’s counsel was unaware of the specific adverse immigration consequences of the plea or sentence
  • Lack of an effective translator or interpreter while entering plea

Having a plea of guilty, guilty but mentally ill or no contest can have a significant impact on your permanent record and the appeals process. A guilty plea will obviously have adverse immigration consequences that could lead to an arrest, being placed in immigration custody for an indefinite period of time, loss of lawful temporary or permanent residence and ineligibility for citizenship, and subsequent deportation from the United States.  All of these consequences have drastic emotional and financial effects on the person entering the guilty plea and the family.  Know your rights prior to and after taking a plea by speaking with a skilled and experienced immigration attorney who is familiar with the criminal process.


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