Can I Take Back my Guilty Plea?

You were charged with an offense, perhaps a petty traffic citation, local ordinance violation, or something more serious, such as a criminal misdemeanor or felony. For whatever reasons you had at the time, you entered a plea of guilty in the matter. Now, you have decided that was a mistake, that you are not satisfied with the terms and conditions of your sentence, and you want out. Is that even possible? Can I withdraw my plea of guilty? The answer is: sometimes yes and sometimes no — for it is within the discretion of the court to grant such a request.

The Time Limit is Usually 30 Days

Whether your case was a petty traffic offense, a local ordinance, or a criminal charge, you always have a limit of no more than 30 days from the date your plea was taken, and your sentence was rendered. You must file your motion in writing with the Clerk of the Circuit Court of venue, it must state specifically the reasons why you are seeking to vacate your plea, and you must serve the prosecution with the written notice. It is then within the sound discretion of the trial court whether or not to grant your request. If the motion is granted, your sentence is then vacated, and any charges that were dismissed as part of a plea agreement are reinstated and any charges that were amended as part of the plea are reinstated to their original form. This is something that one should consider very carefully: in the words of Oscar Wilde, “be careful what you ask for, you just might get it.”

You Can Try an Appeal

If the motion is denied, you then may file an appeal to the Illinois Appellate Court of jurisdiction, appealing both the denial of your motion to vacate your plea, as well as the sentence that was imposed. The legal standard that you must meet is, to prove that the Judge’s denial of your motion to vacate was either clearly erroneous under the law, or an abuse of discretion taking the record as a whole into consideration. To overcome a sentence rendered on appeal, you must show that the sentence was disproportionate to the crime at hand, which is virtually impossible to do when the sentence is within the range allowed by law, and even more so when you entered a negotiated plea agreement in the first place.

Sometimes the Time Limit is up to 2 Years

In petty traffic cases and ordinance violations that are governed by the Rules of Civil Procedure, one could conceivably have up to an additional 2 years to seek an order vacating a plea and judgement that was entered. There must be proof that the motion was brought without undue delay, and that you exercised diligence in pursuing the motion, once the supporting facts were made aware to you. You must also establish that you have a meritorious defense to the charges. Now in practice, people go to traffic court, and seek to vacate convictions on old tickets all the time. Many judges will strictly enforce the rules of civil procedure and deny the motion, especially if it is beyond the two year limitation.

However, there are some jurisdictions where the Judges allow such motions, and often will grant the requested relief of vacating a conviction, especially where there will be an immediate plea of guilty entered again, but with an order for court supervision to take the place of the conviction previously entered. Because court supervision is not a conviction, the Secretary of State will then remove the conviction from the public record, and amend their records accordingly, so suspensions and/or revocations against driving privileges, predicated upon said conviction, will be rescinded and held for naught.

There are Exceptions to the 30 Day Time Limit

There are exceptions to the thirty (30) day limitation on vacating a guilty plea on a criminal case: if the plea was taken improperly at the time, it can be held to be void ab initio, meaning, from the start. For example, a judge must properly admonish a defendant of all of his rights as outlined in Supreme Court Rule 402, as well as certain other collateral consequences that could occur as a result of the plea and sentence to be rendered. If the transcript of the plea proceedings reveals that the Judge did not fulfill that obligation, the plea will be vacated, and the charges will be reinstated. If it can be shown that the plea was not taken knowingly (due to mental defect or impairment), or freely and voluntarily (the plea was coerced or induced by people behind the scenes), or based upon ineffective assistance of counsel (which involves proving that the lawyer’s performance was so poor, that it was the same as not having an attorney at all, thus depriving you of your right to counsel under the Constitution), one could file a petition for post-conviction relief, stating why the plea should be vacated, and the sentence held for naught.

Think Carefully Before Pleading Guilty

Before you enter into a guilty plea, carefully consider whether it is wise to do so. You are giving up your Constitutional Rights to a trial by a jury of your peers, or a trial before the Judge; what we call a Bench Trial. Either way, you are also waiving your right to be presumed innocent of the charges, to have the State prove each element of each offense against you, to confront the witnesses against you in open court, to have your attorney cross-examine them, to call your own witnesses, present your own evidence, and to testify (or not) on your own behalf. Once you are found to have waived these rights on the record, knowingly, freely and voluntarily, there will likely be no taking back the plea.

Hire an Experienced Legal Team

If you’ve entered a plea of guilty to a criminal or traffic charge and wish to take your plea back, time is of the essence. Contact the legal team at Sexner & Associates LLC at (800) 996-4824 any time of day or contact us online for experienced legal assistance in Chicago and across Illinois.