You generally cannot appeal a conviction stemming from a plea of guilty or no contest. But you can make a motion to withdraw a guilty plea or no contest plea.
If a judge grants the motion, you are then given the chance to withdraw the prior plea and substitute it with a plea of not guilty. At that point, the prosecution proceeds forward and you can demand a jury trial as to the charges.
In filing a motion to withdraw a plea, you must typically show “good cause” for a judge to grant the motion. Examples of good cause include that you entered a plea because you:
- were represented by an incompetent attorney,
- were coerced into a plea, or
- did not understand the consequences of a plea.
You have the right to file a motion to withdraw a plea in both misdemeanor and felony cases.
Unlike with a plea, most jurisdictions say that you can appeal a criminal conviction. An appeal is when you ask a higher court, usually referred to as a court of appeals or an appellate court, to review your case.
You can generally file an appeal for a number of different reasons. Some include that:
- a jury trial was unfair (maybe insofar that it violated your constitutional rights),
- a judge made a legal error during the trial, or
- a sentence was excessive.
1. What is a motion to withdraw a plea?
The criminal laws of most states say that, under certain circumstances, defendants in criminal cases may have the right to withdraw a plea of:
- guilty, or
- no contest (or “nolo contendere”).1
You initiate the withdrawal of a plea by filing a motion with the trial court. Most states say that you must file this motion before you are sentenced.2
If a trial judge grants the motion, the defendant is given the opportunity to withdraw a prior plea and substitute it with a plea of not guilty.
Most criminal defendants file a motion to withdraw when they realize that pleading guilty or no contest to criminal charges is not in their best interest. This might be the case, for example, when they:
- discover they are going to incur an unexpected penalty,
- believe they were represented by an incompetent lawyer or the victim of ineffective assistance of counsel, or
- realize they made a mistake in accepting a plea agreement or plea bargain.3
Your criminal defense lawyer or defense counsel can provide legal advice as to when pleading guilty or no contest may not be in your best interests.
2. When does a judge grant the motion?
Most states say that a judge can only grant a motion to withdraw a plea if an accused shows “good cause” for withdrawal of the plea.4
“Good cause” generally means that you entered a plea as the result of:
- incompetence,
- mistake, or
- ignorance.
In practice, you can typically establish good cause if you can show that you were:
- not represented by an attorney at the time of the plea,
- not aware of the consequences of a plea,
- coerced into a plea,
- not represented by a competent lawyer, or
- prejudiced by a language barrier.5
3. Can you appeal a conviction for a crime?
Most often, yes. If you were convicted of a crime, most states say that you can file an appeal whereby you ask a higher court to review your case.6
You generally initiate the appeals process by filing a notice of appeal with the court clerk of the appropriate court, which is typically a court within a state’s appellate division or a state’s Supreme Court.
A defendant may appeal a criminal conviction for any number of reasons including that:
- a jury trial was unfair,
- a guilty verdict was wrong, or
- a sentence was excessive
If the appellate court determines that the trial court’s verdict was indeed wrong, they may “overturn” the judgment and acquit the defendant.
Or if they decide that the trial was unfair or that a sentence was excessive, the appellate court may order a new trial or a new sentencing hearing back in the district court or superior court.
But if the criminal appeals court finds that the trial court acted properly, the appellate court will “affirm” the judgment and the conviction stands.
Note that an appeal is not a new trial. The appellate court looks only at the records and the transcripts of what occurred in the trial court. Your criminal defense attorney cannot introduce new evidence or new testimony in oral arguments or in an appellate brief.
4. Can you still appeal if you plead guilty or no contest?
The specific answer depends on the facts of the case.
Sometimes you plead guilty or no contest as part of a plea bargain. A common term of these deals is that you waive your right to appeal. In practice, this means that once your plea is entered, there is usually no option for appellate review
But sometimes you can plead guilty or no contest and reserve your right to appeal. For example, you might plead guilty to a drug charge after the police conducted a search of your home and found certain narcotics. Here, though, offenders often plead guilty while reserving the right to appeal the legality of the police’s search.
If you plead guilty or no contest and do not waive or reserve a specific issue for appeal, you might still be able to appeal either:
- the legality of the plea (for instance, did you voluntarily plead guilty or were you coerced into a plea), or
- the trial court’s jurisdiction.7
However, some states say that you can only appeal these issues if the trial court first issues a certificate of probable cause.8
Legal References:
- See, for example, California Penal Code 1018 PC.
- See, for example, Ohio Criminal Rule 32.1.
- See, for example, People v. Caban (1983) 148 Cal.App.3d 706.
- See, for example, Florida. Rule. Crim. Procedure. 3.170.
- See Kirke D. Weaver, “A Change of Heart or a Change of Law? Withdrawing a Guilty Plea under Federal Rule of Criminal Procedure 32(e),” The Journal of Criminal Law and Criminology (1973-)Vol. 92, No. 1/2 (Autumn, 2001 – Winter, 2002), published by Northwestern University Pritzker School of Law.
- See, for example, Nevada Rev. Statutes Chapter 177.
- See, for example, In re Chavez (2003) 30 Cal.4th 643.
- See, for example, California Penal Code 1237.5 PC.
