Motion to Vacate a Criminal Judgement in California

Updated July 16, 2021

A Motion to Vacate a Judgment is a legal document that defendants file in a criminal case after they have entered a plea of guilty or nolo contender or “no contest,”  or after they are found guilty at a court or jury trial. If a judge finds good cause to grant the order, then defendants are entitled to have their cases start over at the arraignment stage of their criminal proceedings. The motion is authorized per Penal Code 1018 PC and is also commonly referred to as a Motion to Withdraw a Plea or to Set Aside a Plea.

The language of Penal Code 1018 states: “On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”

Defendants can typically show good cause by demonstrating that they were:

1. the subject of duress, fraud, or coercion when they entered their plea,
2. not aware of the consequences of their plea,
3. not represented by an attorney at the time of their plea, or
4. the subject of ineffective assistance of counsel.

If a judge grants a Motion to Vacate Judgment, then the defendant’s plea is erased and the case begins again starting at the arraignment. If the defendant pleads innocent and no deal gets made, the accused would move to a new trial.

If a judge denies a defendant’s Motion to Withdraw a Plea, the defendant has two basic options. These include to either:

• appeal the case, or
• get the conviction expunged, per Penal Code 1203.4.

Our California criminal defense attorneys will highlight the following in this article:

• 1. What is a Motion to Vacate a Judgment?
• 2. When will a judge grant the motion?
  • 2.1 Duress, fraud, or coercion
  • 2.2 Defendant not aware of the consequences of a plea
  • 2.3 No attorney
  • 2.4 Ineffective assistance of counsel
• 3. What are the remedies if a judge grants the motion?
• 4. What happens if a defendant loses a Motion to Withdraw a Plea?
  • 4.1 Appeals process
  • 4.2 Expungement process

1. What is a Motion to Vacate a Judgment?

A Motion to Withdraw a Plea, or a Motion to Vacate Judgment, is a legal document that a defendant files with the trial court in a criminal case.

The accused files the motion to try and withdraw a plea of guilty or no contest and replace it with a not guilty plea.¹

The accused can also file the motion after having been found guilty at a court or jury trial.

There is a particular time limit associated with this type of motion. A defendant can submit it either:

• before he/she is sentenced, or
• within six months of a probationary sentence (as opposed to a sentence in county jail or state prison).²

Note that it may be possible for a defendant to withdraw a plea after he/she has been incarcerated. However, the defendant would not file a Motion to Vacate Judgment in order to do so. In these circumstances, the defendant’s attorney would file a Writ of Habeas Corpus (a petition that argues that the defendant was unlawfully imprisoned).

Note, too, that to file a Motion to Vacate Judgement, the defendant or his/her attorney files the motion (and usually a notice of motion and a memorandum of points) with the court clerk. The clerk then schedules a hearing date where the prosecutor and defense counsel (also known as the moving party) discuss the motion before the judge.

2. When will a judge grant the motion?

A judge will grant a Motion to Vacate Judgment upon a showing of good cause.

Defendants can show good cause by proving that they were:

1. the subject of duress, fraud, or coercion,
2. not aware of the consequences of their plea,
3. not represented by an attorney at the time of their plea, or
4. were represented by an incompetent attorney.

2.1. Duress, fraud, or coercion

Defendants will satisfy a good cause showing if they can prove that they entered a plea because of duress, fraud, or other force overreaching their free will.³

In addition, defendants can demonstrate good cause by showing that they were coerced, lured, or threatened into entering a plea.⁴

The latter may be the case if, for example,

• a judge improperly pressured a defendant to “take a deal”,
• a co-defendant threatened to harm the accused or a family member if he/she did not take responsibility for the offense, or
• an arresting officer told the defendant that if he/she did not plead guilty, the officer would retaliate against the defendant’s loved ones.⁵

2.2. Defendant not aware of the consequences of a plea

An accused can withdraw a guilty or no contest plea by showing that he/she was not fully aware of the consequences of the plea.

This is true provided that it is substantially more likely than not that the defendant would not have entered his/her plea had he/she known all the facts at the time the plea was entered.⁶

Examples of where a defendant may have not known all of the consequences of a plea include when:

• the accused did not know that a crime carried a mandatory jail or prison term,⁷
• the defendant was unaware that a guilty plea would result in a professional license suspension/revocation, and
• the defendant did not realize that a guilty plea would result in negative immigration consequences, such as removal or deportation.⁸

2.3. No attorney

If a defendant entered a guilty or no contest plea and was not represented by an attorney when he/she did so, a judge will grant a Motion to Withdraw a Plea provided that the accused did not enter the plea:

• knowingly,
• freely, and
• intelligently.

For example, a motion could get granted if an unrepresented defendant entered a plea and the judge accepted the plea without explaining the consequences of it to the defendant. It’s likely, though, that the motion would get denied if the same defendant entered a guilty plea and the judge fully explained all of the consequences of the plea.

2.4. Ineffective assistance of counsel

California courts will typically grant a defendant’s Motion to Vacate Judgment if the accused entered a plea while being represented by an incompetent attorney.

To prove ineffective assistance of counsel, though, an accused must demonstrate that his/her lawyer’s representation fell below an objective standard of reasonableness.

This could be done, for example, if defendants can show that their lawyer:

1. did not offer proper legal advice regarding all of the consequences of a plea,
2. did not properly investigate a case, and
3. encouraged defendants to take a plea that was not in their best interest.⁹

3. What are the remedies if a judge grants the motion?

If a judge grants a Motion to Withdraw a Plea, or executes an entry of judgment, then the criminal case basically starts over from the beginning.

The defendant’s plea, or finding of guilt, is stricken, and he/she begins the case again at an arraignment. If no deal gets made, then the accused would advance to a criminal jury trial.

Note that if a defendant entered a guilty plea as part of a plea deal, but then successfully brings a Motion to Vacate Judgement, the deal gets erased.

4. What happens if a defendant loses a Motion to Withdraw a Plea?

If there’s a denial of the Motion to Vacate Judgment, the defendant’s plea is accepted and he/she gets convicted of a crime. The defendant could then try to either:

• appeal the case, or
• get the conviction expunged.

4.1. Appeals process

The California appeals process allows a person to appeal the court’s denial of his/her Motion to Vacate Judgment.

If the judge denied a motion based on a legal error, or abused his/her discretion in doing so, the California Court of Appeal may reverse the decision and allow a defendant to withdraw his/her plea.¹⁰

4.2. Expungement process

If the court enters a guilty plea, and the defendant is subsequently convicted, a defendant can try to expunge the conviction.

A disadvantage to this approach, though, is that a defendant cannot try to expunge a crime until he/she successfully completes a jail term or probation.

If a judge grants an expungement, the conviction is removed from the defendant’s criminal record.

For additional help…

For additional guidance or to discuss your case with a criminal defense lawyer, we invite you to contact our law firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our lawyers also represent clients throughout California State, including those in Los Angeles, Los Angeles County, and San Diego.

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