"Motions to Withdraw a Plea" in Nevada (NRS 176.165)
Explained by Las Vegas Criminal Defense Lawyers

Defendants who plead guilty to a crime in Nevada may later ask the court to withdraw their plea.  However judges are reluctant to grant these requests unless there's good reason.  An experienced Las Vegas criminal defense attorney knows the best arguments to persuade the court to grant a motion to withdraw a plea and allow the defendant to have a trial.

This article discusses "motions to withdraw a plea" in Nevada criminal cases.  Scroll down to read about common grounds for withdrawing pleas and the procedure for asking for a plea withdrawal.

What is a "motion to withdraw a plea" in Nevada criminal cases?

Like it sounds, a motion to withdraw a plea in Nevada is when a defendant in a criminal case asks the court to ignore his/her plea and resume the case as if the plea never happened.  Therefore, defendants having second thoughts about having entered a plea would file a motion to withdraw a plea in attempt to undo their actions.

If the court grants a motion to withdraw a plea, it's as if the defendant is starting the case over at the arraignment stage in Nevada (which is the very beginning).  If the court denies the motion to withdraw a plea, the defendant remains bound to the original sentence.

What kinds of pleas may defendants request to withdraw in Nevada criminal cases?

Under NRS 175.165, defendants may file motions to withdraw pleas of either:

  • guilty,
  • guilty but mentally ill, or
  • nolo contendere (This means "no contest."  The defendant isn't admitting guilt but is admitting that there's sufficient evidence to find him/her guilty.)
When may a defendant make a "motion to withdraw a plea" in Nevada criminal cases?

A defendant may file a motion to withdraw a plea any time prior to sentencing (which is when the judge imposes penalties on the defendant).  After sentencing, the defendant has one year to file a a statutory post-conviction habeas petition in Nevada, which takes the place of motions to withdraw a guilty plea. (Harris v. State, 130 Nev. Adv. Op. 47, 2014.)

How likely are Nevada courts to grant "motions to withdraw pleas" in criminal cases?

Predictably, courts are more likely to grant a motion to withdraw a plea if the defendant has a good reason.  Courts look at the entire court record (transcripts and paperwork) to determine whether the reason is valid.  But the timing of a motion to withdraw a plea also plays an important role . . .

Motions filed before sentencing

If a defendant files a motion to withdraw a plea prior to being sentenced, it's up to the court's "discretion" whether to grant it.  In other words, it's proper for a court to grant a motion to withdraw a plea if doing so would be fair and just. Courts consider the "totality of the circumstances" in determining whether withdrawing a plea would be "fair and just." (Stevenson v. State, 131 Nev. Adv. 61, 2015)

Motions filed after sentencing

If the defendant files a motion for plea withdrawal after being sentenced, the court will only grant the motion to "correct manifest injustice."  This means that that letting the plea stand would be grossly unfair and that the defendant would be robbed of his/her due process rights unless the court acts.

In determining whether to grant a motion to withdraw a plea following sentencing, courts consider various factors including:

  • whether there was an "inexcusable delay" in the defendant seeking relief,
  • whether an implied waiver has arisen from the defendant's knowing acceptance in existing conditions, and
  • whether circumstances exist that granting the motion to withdraw a plea would prejudice the prosecution

In short, courts will be more likely to deny a post-sentencing motion to withdraw a plea if the defendant waited a substantial amount of time for no good reason (such as illness or coercion).  Courts will also be wary of granting a plea withdrawal if so much time has passed that the state would be hindered in presenting an effective prosecution at trial.

On what grounds would a Nevada court grant a "motion to withdraw a plea"?

There are various legitimate grounds for a defendant to ask to withdraw a plea.  These include:

  • ineffective assistance of counsel
  • plea was not made knowingly, voluntarily, and intelligently
  • defendant wasn't informed that probation may be unavailable
  • ineffective assistance of an interpreter/translator

Ineffective assistance of counsel

A court may grant a defendant's motion to withdraw a plea if the court finds that the defendant suffered from "ineffective assistance of counsel."  This is when the defense attorney's representation fell below an objective standard of reasonableness under prevailing professional norms. Laughlin criminal defense attorney Michael Becker gives an example:

Brett has been charged with the Nevada crime of drug possession.  As part of a plea bargain, Brett pleads guilty to a misdemeanor Nevada drug crime.  The defense attorney tells Brett that the court may order a fine of up to $1,000, but he forgets to tell Brett that the court can also sentence him to six months in jail, which the judge does.  If Brett files a motion to withdraw his plea, the court would probably grant it.  Failing to tell Brett all the possible consequences of his plea qualifies as ineffective assistance of counsel.

Note that "ineffective assistance of counsel" is a very high bar.  Attorney mistakes don't qualify as ineffective assistance unless they prejudice the defendant.  Other examples of ineffective assistance of counsel could include:

  • A defense lawyer telling a defendant that he/she can withdraw a guilty plea at will, and not telling the defendant that the court has the final say over whether a plea can be withdrawn
  • A defense attorney having a conflict of interest with the defendant
  • A defense attorney failing to adequately investigate a case
  • A defense attorney failing to present available mitigating evidence to try to obtain a less harsh sentence
  • A defense attorney failing to file appropriate motions the defendant was coerced into making the plea

Note that most communications between a defense attorney and his/her client are confidential.  However, a defendant who moves to withdraw a plea based on ineffective assistance of counsel may be forced to waive that privilege.  This is because the defense attorney may need to testify in court about the effectiveness of his/her representation.

Plea was not made knowingly, voluntarily, and intelligently

Pleading to a crime is valid only when the defendant enters the plea "knowingly, voluntarily, and intelligently."  In other words, it must be the defendant's choice to enter the plea, and he/she must be aware of the consequences of making the plea.  A plea is not valid in such circumstances as:

  • the defendant was insane at the time of the plea
  • the defendant was intoxicated at the time of the plea

Courts look at a "totality of the circumstances" when determining whether a defendant entered a plea knowingly, intelligently, and voluntarily.  If court records show that the defendant discussed the plea with his/her lawyer, understood the consequences of the plea, and signed the plea agreement voluntarily, then it's unlikely the court with grant a motion to withdraw the plea.

Note that it's not a valid ground for withdrawing a plea for a defendant to claim that he/she is actually innocent of the charges.

Defendant wasn't informed that probation may be unavailable

In order for a plea to be valid, the defendant needs to have been informed what he/she is possibly getting into penalty-wise. Mesquite criminal defense attorney Neil Shouse gives an illustration:

David enters a plea for the Nevada crime of burglary.  He already has one past burglary conviction.  The judge then orders David to Nevada state prison.  David was hoping to get probation, and he files a motion to withdraw the plea.  If the court determines that David was never informed that probation is unavailable for a second-time burglary offense, then the court should withdraw the plea.

Guilty pleas are fatally defective if the court record shows that the defendant wasn't told that probation may not be available in his/her case.

Ineffective assistance of an interpreter/translator

Non-English speaking defendants are entitled to competent interpreters who correctly translate for them and who don't have a conflict of interest with them.  If the court can determine that an interpreter caused prejudice to the defendant, then his/her guilty plea may be invalid.

Can courts hold hearings for "motions to withdraw a plea" in a Nevada criminal case?

Yes.  Nevada courts may hold an evidentiary hearing (like a mini-trial) to help determine whether to grant a defendant's motion to withdraw a plea.  At the hearing both the defense and prosecution may make arguments and present evidence.

Can a defendant appeal a court's denial to withdraw a plea in Nevada criminal courts?

Yes.  However, the Nevada Supreme Court will not reverse a lower court's decision absent a "clear abuse of discretion."  This means that if a court denies a defendant's motion to withdraw a plea, the denial will probably stand on appeal unless the Nevada Supreme Court finds that the district judge was obviously wrong.

May a defendant request to withdraw a plea more than once in the same case?

Yes.  But if the defendant's first motion to withdraw a plea didn't identify all the grounds for the plea being invalid, the court is less likely to grant any successive motions to withdraw a plea.

Call a us for help . . .

If you may have wrongfully entered a guilty plea in Nevada, call our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673) to talk for free about withdrawing the plea.  We may be able to get the plea thrown out and reinstate your right to a trial.

We represent client throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.

California laws for withdrawing a plea, see our article on motions to withdraw a plea in California.








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