Georgia Criminal Law – How to Withdraw a Guilty Plea

The vast majority of criminal cases are resolved through guilty pleas. Some people take guilty pleas because they are guilty as a matter of fact and law, while others take pleas even though they are innocent. But why would an innocent person plead guilty to a criminal charge? Trials can be a risky proposition. A plea deal that involves no jail time, reduced charges, or other mitigated punishment may be an attractive offer when faced with the possibility of losing at trial and being hit with a “trial tax.” A trial tax is the idea that if you go to trial and lose you will be punished more harshly by the judge than if you had just taken a plea. Due to the large percentage of cases that result in guilty pleas, there are of course a percentage of those cases where the person, for whatever reason, decides they want to withdraw their guilty plea, either before or after sentencing. This article serves to explore whether a guilty plea can be withdrawn, and if so, under what circumstances. 

Before Sentencing

The person accused has an unlimited right to withdraw a guilty plea until a sentence is pronounced. O.C.G.A. § 17-7-93 (b). This means a person may withdraw a plea of guilty at any time before a judgment is announced (orally by the court) and then plead not guilty. But, once a judgment is announced, a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed on appeal unless there is a manifest abuse of discretion. 

After Sentencing

Because of the time and care taken by the court to ensure each plea of guilty is entered freely, knowingly, and voluntarily, it is very difficult to withdraw a guilty plea after a sentence is pronounced. There are, however, a few limited circumstances in which a guilty plea may be withdrawn after the sentence is announced. 

The first is within the context of a negotiated plea. A negotiated plea is one where the prosecutor and defense have come to an agreement on the charge plead to and the terms of punishment to that charge. If a person enters a negotiated plea and the judge, in their discretion, sentences the person to anything different than the terms agreed upon (for better or for worse), the person has the right to withdraw their plea. The opposite is true in a non-negotiated plea, where the person pleads guilty to the offense but is asking the judge for punishment different from what the State is asking for. In a non-negotiated plea the defendant is stuck with whatever sentence the judge imposes. 

After a sentence is imposed, a court may allow the withdrawal of a guilty plea only to correct a “manifest injustice.” Examples of manifest injustice include, but are not limited to, the person being misled about the terms of the sentence, the person being threatened or forced by another to enter a plea, the person not being competent to enter a plea, newly discovered evidence if: (1) the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness, or any other circumstance indicated the plea was not entered freely, knowingly, or voluntarily.

A motion to withdraw a guilty plea must be filed within the same term of court in which judgment of conviction was entered. After the term of court expires (about every three months), the trial court’s jurisdiction ends and the defendant’s only remedy is to file a petition for writ of habeas corpus. The terms of court can be found within O.C.G.A. § 15-6-3

If a motion to withdraw a guilty plea is timely filed the court may, but is not required to (unless there are issues of fact to be decided), hold a hearing to determine whether the guilty plea should be withdrawn. When a defendant challenges the validity of his guilty plea, the State bears the burden of showing the plea was entered voluntarily and intelligently and that defendant had an understanding of the nature of the charges and the consequences of the plea. 

Contact Us

If you or someone you know has been arrested, contact the law firm of W. Scott Smith at 404.581.0999 for a free case evaluation. You’ll a local Atlanta attorney ready to aggressively fight on your behalf.