Family Matters Law Group P.A.
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Criminal Law: Can I Vacate/Withdraw my Plea?

Florida Rule of Criminal Procedure 3.850 allows a defendant to have his previously entered plea vacated. In other words, you could have your sentence withdrawn. Sometimes you may not realize the impact a "good plea deal" can have, such as immigration consequences, or being unable to seal or expunge your record as a result.

In order to have your plea vacated, you would hire an attorney to draft an appropriate motion and ask the court to grant it. The prosecutor has an opportunity to object at the hearing.

You only have two years from the date of your sentence to ask the court to vacate it. The only exceptions to this rule are if (1) a new fact that impacts the case becomes available to the defendant or his attorney that could not have been discovered previously; (2) the District Court of Appeals makes a ruling regarding a fundamental constitutional right that may be retroactively applied to cases; or (3) the defendant hired an attorney to file this motion and, through no fault of the defendant, the attorney negligently failed to file the motion.

One basis for asking the court to vacate your plea is if you did not enter into a valid plea agreement. A plea agreement is invalid if it was not voluntary, the defendant was coerced, the terms of the agreement were against the law, or it was based on a misrepresentation of the law or the terms.

For example, my client "Jose" entered into a plea agreement with the court without an attorney and does not speak English. The entire plea colloquy was done in English without the assistance of a translator. Jose called me to represent him on an unrelated matter and truly believed he had no prior criminal history. At the time, he understood the case would be dismissed if he paid some fines. Fortunately for Jose, we are still within the two years after his plea and he has a valid basis.

Another basis for filing a motion to vacate your plea is ineffective assistance of counsel. This can be based on a number of different factors, both inside and outside the courtroom. Commonly this occurs when the attorney fails to do something crucial to the client's case, such as filing a motion. This can also occur if the attorney gave the client significantly bad or incorrect advice, such as possible penalties.  

It's best to speak to a criminal defense attorney familiar with post-conviction motions. They can best advise you as to whether vacating your plea is in your best interest. Contact us now for a free initial consultation.


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