“Motions to withdraw a plea” in Nevada are when defendants who plead guilty to a crime later ask the court to take it back. Defendants may not withdraw their pleas after they have been sentenced, and judges are reluctant to allow it at all unless there is a good reason.
Common grounds for motions to withdraw a plea in Nevada are (1) ineffective assistance of counsel, (2) the plea was not made voluntarily, (3) the defendant was not informed probation may be unavailable, and (4) ineffective assistance of a translator.
Below our Las Vegas criminal defense attorneys discuss “motions to withdraw a plea” in Nevada including the time frame for vacating judgments and the process for asking to vacate a conviction. Click on a topic to go directly to that section.
- 1. What is a “motion to withdraw a plea”?
- 2. What kinds of pleas can be withdrawn?
- 3. When can it happen?
- 4. What are the grounds?
- 5. What about a “habeas corpus petition”?
- 6. Will there be a hearing?
- 7. Can I appeal if the judge refuses to withdraw my plea?
- 8. May I request to withdraw a plea more than once in the same case?
For people who have been convicted at trial, see our article for motions for a new trial.
1. What is 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. Therefore, defendants having second thoughts about having entered a plea would file a motion to withdraw a plea in an attempt to undo their actions.
If the court grants a motion to withdraw a plea, it is as if the defendant is starting the case over at the arraignment stage (which is the very beginning of the criminal case). If the court denies the motion to vacate judgment, the defendant remains bound to the original plea deal.
Also see our article on how to commute a sentence.
2. What kinds of pleas can be withdrawn?
Defendants may file motions to withdraw pleas of either:
- guilty but mentally ill, or
- nolo contendere (“no contest”)
Note that when a defendant pleads “nolo contendere”, the defendant is not admitting guilt but is admitting that there is sufficient evidence to find him/her guilty.1
3. When can it happen?
A defendant may file a motion to vacate conviction any time prior to sentencing (which is when the judge imposes penalties on the defendant). After sentencing, the defendant may not file a motion to withdraw a plea (with some exceptions). A person can bring a motion to withdraw a plea post-sentencing when:
- The person has not filed a prior motion to withdraw the plea and has not filed a prior postconviction petition for a writ of habeas corpus;
- The motion is filed within 1 year after the date on which the person was convicted, unless the person pleads specific facts demonstrating that some impediment external to the defense precluded bringing the motion earlier;
- At the time the person files the motion to withdraw the plea, the person is not incarcerated for the charge for which the person entered the plea; and
- The motion is not barred by the doctrine of laches. A motion filed more than 5 years after the date on which the person was convicted creates a rebuttable presumption of prejudice to the State on the basis of laches.
Otherwise, after sentencing a person may not bring a motion to withdraw a plea. Instead, he/she has one year to file a statutory post-conviction habeas petition.2
4. What are the grounds?
If a defendant files a motion to vacate a conviction, it is up to the court’s “discretion” whether to grant it. In other words, it is proper for a court to grant a motion to vacate the judgment 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.”3
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 was not informed that probation may be unavailable
- ineffective assistance of an interpreter/translator
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.
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.
Example: Brett has been charged with drug possession. As part of a plea bargain, Brett pleads guilty to a misdemeanor 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 do not 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
- A defense attorney coerced the defendant 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.”4 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 plea5
Nevada courts look at a “totality of the circumstances” when determining whether a defendant entered a plea knowingly, intelligently, and voluntarily.6 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 is unlikely the court with grant a motion to withdraw the plea.
Note that it is not a valid ground for withdrawing a plea for a defendant to claim that he/she is actually innocent of the charges.
Defendant was not informed that probation may be unavailable
In order for a plea to be valid in Nevada, the defendant needs to have been informed of whether probation is a possibility in his/her case. Courts look at the entire record and consider the totality of the circumstances when deciding whether the defendant knew that his/her offense was nonprobational.7
Example: David enters a plea for 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 and had no way to know 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 could not reasonably know 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 do not have a conflict of interest with them.8 If the court can determine that an interpreter caused prejudice to the defendant, then his/her guilty plea may be invalid.
5. What about a “habeas corpus petition”?
Note that defendants may not file motions to withdraw a plea after sentencing. Instead, they may file habeas corpus petitions to contest their incarceration. There are nine conditions under which a court may grant a habeas corpus petition:
- When the jurisdiction of the court or officer has been exceeded.
- When the imprisonment was at first lawful, yet by some act, omission or event, which has taken place afterwards, the petitioner has become entitled to be discharged.
- When the process is defective in some matter of substance required by law, rendering it void.
- When the process, though proper in form, has been issued in a case not allowed by law.
- When the person having the custody of the petitioner is not the person allowed by law to detain the petitioner.
- Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.
- Where the petitioner has been committed or indicted on a criminal charge, including a misdemeanor [except misdemeanor violations of traffic laws] without reasonable or probable cause.
- Where the petitioner has been committed or indicted on any criminal charge under a statute or ordinance that is unconstitutional, or if constitutional on its face is unconstitutional in its application.
- Where the court finds that there has been a specific denial of the petitioner’s constitutional rights with respect to the petitioner’s conviction or sentence in a criminal case.9
A defendant may also file a petition for a writ of habeas corpus if he/she has been wrongfully denied bail before conviction.10
6. Will there be a hearing?
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.
7. Can I appeal if the judge refuses to withdraw my plea?
Yes. However, the Nevada Supreme Court will not reverse a lower court’s decision absent a “clear abuse of discretion.”11 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.
8. May I request to withdraw a plea more than once in the same case?
Yes. But if the defendant’s first motion to vacate a conviction did not 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 Nevada criminal defense attorney…
If you may have wrongfully entered a guilty plea in Nevada, call our Las Vegas criminal defense attorneys to talk 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.
In California? See our article on motions to withdraw a plea in California.
- NRS 176.165.
- Harris v. State, 329 P.3d 619 (2014); Nevada Assembly Bill 184 (2017).
- Stevenson v. State, 354 P.3d 1277 (2015).
- Little v Warden, 34 P.3d 540 (2001).
- See Rubio v. State, 194 P.3d 1224 (2008).
- NRS 34.530.
- NRS 34.500.
- Rubio v. State, 194 P.3d 1224 (2008).