Withdrawing or Modifying a Plea

Suppose you are involved in a crime, charged, and at your arraignment, and don’t have legal representation. You enter in a guilty plea, and then you find out that the sentencing is much harsher than what you previously thought. What can you do? Well, in California, defendants sometimes have the option to withdraw a prior plea, and with the help of a lawyer, this can help you fight those charges.

Motion to Withdraw a Plea

The motion to withdraw a plea can be done at the discretion of the judge. This motion can typically be filed before the sentencing hearing if you are able to obtain legal representation in time. If this does not happen, and you are detained, it is possible to use a writ of habeas corpus to make an effort to enter this motion. Good cause essentially means that your plea of “guilty” was not your best option, and you were not aware or unable to determine other options. This can come in one of many forms:

• You were not represented by an attorney: If you were not represented by an attorney at the time of your plea, then the judge must provide an opportunity for you to withdraw your prior plea. Not having an attorney is challenging, as the court of law is an intimidating place and legal knowledge is a necessity when dealing with any charges.
• Your attorney did not perform his/her duties properly: If you were represented by an attorney at the time of your plea, but you feel your attorney did not perform properly, or was ineffective in proceedings, you may withdraw your plea. If you feel your attorney has advised you improperly or has failed in his duty to provide efficient legal counsel, this may be good cause for your motion.
• Your sentencing carried penalties of which you were not aware: If your sentencing carried any unforeseen consequences, such as losing a professional license or mandatory jail time, and you entered a guilty plea without knowing this, you may be able to withdraw that plea. Your attorney will help you figure out what can actually stem from a guilty plea. An attorney can also help you either plea bargain or go to trial so you can avoid those consequences.
• The plea was not made of your own accord: If you, for whatever reason, are being forced, threatened, coerced, bribed, or any other manner of being interfered with at the time of your guilty plea, you may have a chance at withdrawing that plea.

Filing the motion yourself may not get the same results, contact an attorney before doing so, and he or she will help you withdraw your plea. If you intend on engaging the court further after motioning to change your plea, attorney representation is your best chance at fighting the charges.

The time has come to go to trial, and you and your lawyer are fully prepared to defend your case and fight the charges. A trial is supposed to be the ultimate form of judgment; a jury of one’s peers hearing out a case and passing a verdict. However, trials can have errors. Any number of things can affect how the case proceeds, and these may not always be fair to the defense. If something like this happens, you and your attorney may want to file a motion for a new trial. This will remove the current jury, who may have been affected by negatively influencing circumstances, and begin the trial anew.

Reasons to File a Motion for a New Trial

It may not always be necessary to have an entirely new trial, and the determination of this motion is at the discretion of the judge who is holding the trial. For there to be a new trial there must be a good reason for doing so, and on top of this, this reason must have either affected you negatively, or in some case, must have a positive influence on your trial. Some of these reasons include:

• Juror misconduct: One of the most common ways a trial can be affected is by the behavior of jurors. Members of the jury should not be subject to any inadmissible evidence, or any outside factors. If the jury has been influenced by some factor outside of what is permissible by the court, then you may be able to work with your attorney to file a motion for a new trial.
• Prosecutorial misconduct: The prosecutor is subject to a number of rules as to how he must conduct himself when prosecuting a case. Prosecutors cannot do things like subject the jury to inadmissible evidence, make an effort to bring forth an appeal to a prejudice, or engage in harmful or damaging cross-examinations of you or the witnesses you have called. If you believe the prosecutor for your case is behaving unfairly or predatorily, you may want to file a motion for a new trial.
• Legal error: While this is typically discussed during the appeals process, if your attorney believes that there is an error in the law, such as improper instructions being read to the jury, it may be possible to motion for a new trial. A skilled attorney will be able to point out errors and will know the right time to file the appropriate motion.
• Loss of court record: All happenings in the court must be recorded or transcribed. If these records are destroyed or misplaced, you may have an opportunity to motion for a new trial. The reason for this is because without official court records, there is no chance for a proper appeal.
• Insufficient evidence to convict: If the prosecution is essentially grasping at straws for a conviction, they may not have evidence that goes beyond reasonable doubt. If this happens, even if the jury finds you guilty, you may be able to motion for a new trial.
• New evidence: If new evidence comes to light at any point in time, during or even sometimes after the trial, it may be able to help your case. You can motion for a new trial if there is new evidence available that can help you.

Your attorney can assist you and alert you on opportunities to file a motion for a new trial. A new trial can present a new jury, and the increased opportunity for a “not guilty” verdict.

If you are convicted of a crime, you will be given a sentence to fulfill as punishment. This will most often be determined at a sentencing hearing, especially if there is jail or prison time involved. While the conviction will restrict you from certain activity, at the sentencing hearing you are still entitled to representation from an attorney. This is important, as the sentencing hearing exists to determine which punishment will fit the crime of which you have been convicted.

The Sentencing Hearing

The sentencing hearing is a separate hearing that takes place in front of the judge to determine what terms will be assigned to you. The prosecution may be present for this as well. At this hearing your attorney can accompany you and can also defend you against potentially harsh sentencing. You will have the right to offer sentencing alternatives and present arguments as to why these alternatives would be effective for your particular circumstances. While the hearing itself will be somewhat less formal than an actual trial, there are some rules for what is permissible activity and how attorneys should conduct themselves at the hearing. Before issuing a sentence, the judge overseeing the case must provide reasoning for their choice of that particular sentence.

What Your Lawyer Can Do For You

At the hearing your lawyer will have several measures they can exercise to try and reach for either a lower or better-fitting sentence. Your lawyer can present factually-relevant evidence in favor of you, or evidence to show good character to present to the judge. Your attorney can also suggest sentencing alternative to jail or prison time. These can include:

• Community Service: The judge can assign you to an organization to conduct community service. It is possible that you may be able to choose the organization, however the judge may also choose one for you if it is perhaps better-suited to the crime. Community service is often done in lieu of jail time, or in addition to it, if the judge deems it necessary.
• Volunteer Road Work: This is typically seen in DUI cases as a sentencing alternative. You will have to contact a volunteer center for CalTrans, and then an assignment will be given to you. This can be done in lieu or in addition to jail time.
• Reporting to a Parole Officer: You may be assigned a parole officer with whom you will have to check in with for a certain period of time. Conditions of parole depend on the judge’s discretion.
• Rehabilitation Center: Often seen in drug- or alcohol-related cases, you may be given a sentence of rehabilitation instead of incarceration. The judge will typically choose a center for you to either attend or stay at in order to aid you with substance or psychological problems.

If you must go to jail or prison, an attorney will help to avoid excessive sentencing, or to reduce total time spent incarcerated. Things like concurrent sentences, or sentences that can be served at the same time, can help reduce total time. An experienced criminal defense lawyer will know how to present the most effective argument for your case.