Withdrawal of a Guilty Plea in Florida

Can You Change Your Plea from Guilty to Not Guilty in Florida?

A common misconception is that upon entering a plea of guilty it cannot be withdrawn. While it is difficult, it is not impossible. Your defense attorney in Florida should be chosen after careful consideration, as technical requirements and knowledge of past cases are critical to your ability to withdraw a guilty plea. The first determination that must be made is whether sentencing (the punishment) has taken place. Florida Rule of Criminal Procedure 3.170(f) states that “the Court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn…” The precedent in Florida is that this rule is to be construed liberally in favor of the Defendant. If sentencing has not taken place, the Supreme Court of Florida has held that “trial courts are encouraged to liberally grant motions made before sentencing.” See State v. Partlow, 840 So. 2d 1040, 1044-45 (Fla. 2003).

Withdrawing a Guilty Plea Before Sentencing

As a practical matter, before sentencing, pleas can be withdrawn either by ore tenus motion (by spoken word) on the record or written motion. The Court will determine the sufficiency of the motion. The Court must conclusively refute the allegations in the motion. If the allegations are not refuted, the court must hold an evidentiary hearing or accept the allegations as true. If an evidentiary hearing is held, the Defendant must demonstrate that the plea was made involuntarily to the Judge. A Defendant should be permitted to withdraw a plea “if he files a proper motion and proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights” (emphasis supplied). Baker v. State, 408 So.2d 686, 687 (Fla. 2d DCA 1982).

Withdrawing a Guilty Plea After Sentencing

Withdrawing a plea after sentencing is far more difficult than prior to sentencing. The Court is governed by Florida Rule of Criminal Procedure 3.170(l). The Defendant has thirty (30) days to file a written motion. In the state of Florida every plea must be entered into knowingly, willingly and voluntarily. The Defendant must understand the nature of the charges and the consequences of the plea. Furthermore, there must be a factual basis for the plea.

The most common grounds for setting aside a plea is involuntariness of a plea. In evaluating whether a plea was voluntary, courts will refer to Rule 3.172(c)(2) states that, “If a Defendant is not represented by an attorney the Court shall determine that the he understands that he has the right to be represented by an attorney at every stage of the proceeding and if necessary an attorney will be appointed”. Pleas are not voluntary if the Defendant does not understand the direct consequences (length of time in prison/jail, terms of probation and any other effects directly caused by the entry of a plea). Collateral consequences, such as loss of firearms privileges, deportation from the country and sex offender registry do not make a plea involuntary.

Will The Result Be Better After Changing Your Plea?

It is important to remember that a successful withdrawal of a plea merely places the Defendant back where they were prior to entry of a plea. It is important to be cognizant of the fact that the result of your case could potentially be worse than the disposition when the plea was entered. Because of the many technical concerns with setting aside a plea we highly recommend you contact an attorney. Please contact us if you would like a free case evaluation on whether setting aside a plea is a possibility in your case.