Withdrawing
a Guilty
Plea
Some clients
experience regret about pleading guilty and want to know whether it is possible
to withdraw their plea and go to trial instead.
Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time
before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’
and plead ‘not guilty.’” The phrase "at any time before judgment is
pronounced" means at any time before the judge orally pronounces sentencing.[1]
Therefore, you had an absolute right to withdraw your plea before sentence was
pronounced, but then sentence was pronounced from the bench while we stood at
the podium. After sentencing, the
decision whether to allow withdrawal lies within the trial court's discretion.[2]
In order to withdraw a guilty plea after
sentencing has been pronounced, you have to show that it is necessary to
correct a “manifest injustice.”[3]
Mere regret
does not constitute manifest injustice.
You have to show that your plea was not a knowing, intelligent and voluntary plea. You can argue that you were not in your right
mind, were misinformed, or for some other reason did not understand what was
happening. The trial court is the final word
of all factual issues, and after sentence is pronounced a guilty plea may be
withdrawn only to correct a manifest injustice.[4]
You
must also file your motion to withdraw a guilty plea in the same term in which you
were sentenced. After the expiration of
that term, the trial court lacks jurisdiction to allow the withdrawal of the
plea.[5]
Thus, after the expiration of that term
and of the time for filing an appeal, the only remedy available to you would be
through habeas corpus proceedings.[6]
Habeas
Corpus
Even if you do
not withdraw your plea in time, you
have four (4) years to challenge a
felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of
Habeas Corpus. But you have to have a
reason to challenge the legality of your plea.
Regret is not a valid reason.
Valid reasons include that your attorney misrepresented something to you
or that you were promised something in exchange for your plea that you did not
get. Most of these issues are covered in
the long list of questions you have to answer before a court accepts your plea,
so that it’s very difficult to later change your mind and take a position
opposite what you said when you took your plea.
(Which is precisely why they ask you the questions!)
[1] State v. Germany ,
246 Ga.
[2] Williams v. State, 279 Ga. App.
388, 631 S.E.2d 417 (2006); Griffin v. State,
12 Ga.
[3] U.S.C.R. 33.12 (B)
[4] Cazanas v. State, 270 Ga.
[5] Rubiani v. State, 279 Ga.
[6] Sherwood v. State, 188 Ga.
- John Steakley
