Penal Code 1018 Motion

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Penal Code 1018 Motion

“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appeared without counsel at the time of the plea the court shall, for good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted.”

This basically means that if you establish good cause and file the motion either before you are sentenced or within six months of a probationary hearing, then:


1) The court must allow you to withdraw your plea and exchange it for a not guilty plea if at the time of your plea you were not represented by an attorney, or
2) Allow you to exchange your plea for a not guilty plea even if you were represented by counsel, but the court believes that it would be in the best interest of justice to allow you to do so.

We will discuss the grounds upon which you can enter the motion to vacate a criminal judgment.

Defendant was not aware of all of the Consequences of his/her Plea This is probably the most common reason to file a motion to vacate a criminal judgment.

When you enter a not guilty plea or a no contest plea (nolo contendere) assuming that you know the consequences of the plea and later learn that you are going to suffer an unexpected penalty, Penal Code 1018 will allow you to withdraw that plea, if, and only if, you can prove that you would not have entered that plea had you known all of the facts at the time.

Below are some examples where the defendant did not know of the consequences of their plea:


• The defendant did not know that the plea carried a mandatory prison term.
• The defendant did not know or was not informed that his/her professional license could be revoked.
• The defendant did not know that the plea could result in immigration consequences, such as deportation.

Defendant was not represented by an Attorney at the Time of his/her Plea

If you entered a not guilty or no contest plea and you were not represented by an attorney, the court will grant your motion if you can prove that you entered the plea without knowing freely and intelligently what you were doing.

So, just the fact that you weren't represented by an attorney is not good enough. You must prove that you did not enter your plea freely, knowingly and intelligently.

Let's say for instance that the judge clearly told you at the time of your plea that you had the right to an attorney and could be unequivocally damaged by entering your plea without one, and you did so anyway and stated that you wished to proceed, then the judge would not be required to grant your motion.

If, however, you clearly could not afford an attorney, but the judge did not explain to you your right to an attorney, the court would then grant your motion. And, if the judge did not fully explain the consequences of your plea, the court would then also grant the motion. Defendant was represented by an Incompetent Attorney

You are entitled to have your motion granted if you had an attorney who:
• Didn't represent you properly by not properly advising you of the consequences of your plea
• Didn't represent you properly by not adequately investigating your case
• May have encouraged you to take a plea that was not in your best interest.
In order to prevail on your motion to vacate criminal judgment, you must prove that your counsel was ineffective and that it fell below the standard of reasonableness under prevailing professional norms.


However, this can be difficult because:
1) The court will not usually second guess an attorney's decisions.
2) As long as the court believes you entered your plea voluntarily and knowingly, they tend to believe that the decision to plea a certain way is your decision to make, regardless of your attorney's influence.


If you can, however, prove that your attorney truly did not provide a judicious level of guidance or representation, the court will usually grant your motion in this respect.


If the defendant was represented by a public defendant at the time of the plea, the court would normally appoint another attorney to investigate the circumstances surrounding the motion. Similarly, if the defendant was represented by private counsel, it is suggested that defendant hire another attorney to investigate. This is the best way to avoid conflict of interest.

Defendant was coerced into Entering the Plea If the defendant feels that he/she did not freely and voluntarily enter their plea because they were threatened, coerced or enticed into doing so, the court will grant the motion. For instance,


• A judge improperly pressures the defendant to “take the deal”.
• Another individual, i.e. co-defendant, threatened the defendant that he/she would harm the defendant's family should defendant not take responsibility for the offense.
• A law enforcement officer tells defendant that if he/she does not plead guilty that he/she would retaliate against defendant's love ones/family. This would be a perfect example of police misconduct and should be told to your attorney.

In other words, guilty pleas obtained through either coercion, terror, inducements, or threats are involuntary and are legal grounds for a successful motion to vacate criminal judgment.

Remedies if Defendant's Motion to Vacate Criminal Judgment is Granted If the judge is inclined to grant your motion, you basically get to start all over from scratch. Your plea will be “erased”. Do note, however, that once you start over, the prosecution can take any previous offers “off the table”.

What if Defendant Loses the Motion to Vacate Criminal Judgment?
If defendant's motion is not granted, he/she will have to fulfill the terms of their sentence. However, there is still a couple of different avenues to follow. One is to file an appeal, and the other is to attempt to expunge the conviction.

The Appeal Process


The appeal process allows the defendant to appeal the judge's denial of the motion. Let's say the defendant believes that the judge denied the motion based on legal error, or that the judge abused his/her discretion in doing so, the Court of Appeal may reverse the decision and permit the defendant to withdraw his/her plea.

Do you have questions about a case? Visalia and Bakersfield area criminal defense attorneys at Martens & Brusseau can assist you with criminal charges. With years of criminal defense experience, our firm has handled thousands of cases.  Attorneys here have the skills and knowledge needed to defend your rights. Serving the Visalia, Fresno, and Bakersfield areas, Martens & Brusseau can provide expert criminal defense counsel. CONTACT US AT 559-302-9722 OR 661-466-2142 TODAY

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