A defendant is at liberty to ask a Nevada court to withdraw his/her plea at any time. However, courts are more likely to consider the request if sentencing has not yet occurred. If sentencing has already happened, the judge may presume that the only reason the defendant wants to withdraw the plea is to try to get a lesser sentence by going to trial.
1. When will a Nevada judge grant a motion to withdraw a plea?
A motion to withdraw a plea, also referred to as a “motion to vacate conviction” or “motion to vacate judgment,” 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. A defendant brings the motion under NRS 176.165.
If a defendant files a motion to withdraw a plea before being sentenced, the court has “discretion” to grant it if withdrawing the plea would be fair and just.1
But if a defendant files a motion to withdraw a plea after sentencing, the court may not grant the motion unless doing so would “correct a manifest injustice.”
Therefore, the bar for withdrawing a plea becomes much higher after sentencing. (Also, read our article about post-conviction relief for non-citizens in Nevada.)
2. What factors do judges consider when ruling on a motion to withdraw?
There are various factors that Nevada courts consider when deliberating whether to withdraw a plea. Some of these include whether:
- the defendant delayed unnecessarily in seeking to withdraw the plea, and
- the prosecution would be prejudiced by withdrawing the plea.
Possible grounds for withdrawing a plea in Nevada include:
- ineffective assistance of counsel or an interpreter,
- the plea was not given knowingly, voluntarily, and intelligently
- the defendant was not informed that probation might be unavailable.
To learn more about how to withdraw a plea in Nevada, watch our information videos:
