A motion to withdraw a plea prior to judgment is normally made pursuant to ordinary motion practice in criminal cases, since the motion forms part of the underlying criminal proceeding.  The California motion will be offered as an example. Under California Penal Code § 1018, a court may allow a defendant to withdraw his or her guilty plea “for good cause shown” before judgment is entered or within six months[208] after the defendant is placed on probation.  A judgment of conviction is not deemed to have been entered where imposition of sentence has been suspended and probation has been granted, even though a conviction may exist for purposes of finality and appeal.[209]  In contrast, a defendant who was sentenced to probation more than six months before the date on which post‑conviction relief is requested may not use Penal Code § 1018, but must vacate the judgment pursuant to an extraordinary writ such as a petition for error coram nobis[210] or a statutory or non-statutory motion to vacate.

 

            This motion is rare, and discretionary.  Standard criminal motion practice is used.  The burden of proof is borne by the defendant by clear and convincing evidence.[211] 

 

            The motion must be heard and decided by the court before which the plea was entered.[212]  When a felony plea was entered in municipal court, the motion to withdraw must be made (or, if the motion was filed in superior court, remanded for decision) in the municipal court.[213]  While it is desirable for the motion to be heard by the same judge that took the plea, it is not mandatory.[214]

[208] It may be possible to argue successfully that such a motion can be filed after the six‑month limit on the same grounds used to file late notices of appeal.  See California Criminal Law and Immigration, § 8.24.

[209] People v. Superior Court (Giron), 11 Cal.3d 793, 796, 114 Cal.Rptr. 596 (1974).

[210] See California Criminal Law and Immigration, § § 8.29, 8.34.

[211] People v. Nance, 1 Cal.App.4th 1453, 2 Cal.Rptr.2d 670 (1991).

[212] California Penal Code § 859a.

[213] People v. Valdez, 33 Cal.App.4th 1633, 39 Cal.Rptr.2d 818 (1995); People v. Mesa, 174 Cal.App.3d 58, 60 (1985).

[214] People v. Batt, 24 Cal.App.4th 1044, 1048 (1994); People v. Valdez, supra.

Tenth Circuit

POST CON RELIEF " UTAH " MOTION TO WITHDRAW PLEA " DEFENDANT PROMISED PLEA IN ABEYANCE WOULD ALLOW ERASURE OF CONVICTION AFTER SUCCESSFUL COMPLETION OF SENTENCE
Meza v. State, 359 P.3d 592 (Utah S.Ct., Sept. 9, 2015) (while Utah Post-Conviction Remedy Act is not available to allow immigrant defendant to attack a plea in abeyance, since defendant was never convicted; defendant can make motion to withdraw plea, under Rule of Civil Procedure 60(b)(6), on ground he was told that after entering no contest plea in abeyance, and completing sentence successfully, he would have no conviction, where immigration authorities continued to recognize possession of marijuana conviction as causing immigration damage anyway).

Lower Courts of Tenth Circuit

POST CON - UTAH - STATUTE OF LIMITATIONS - 30-DAY DEADLINE TO FILE MOTION TO WITHDRAW GUILTY PLEA
State v. Rojas-Martinez, 73 P.3d 967 (Utah Ct. App. June 19, 2003) (under Utah Code Ann. 77-13-6(2)(b) (1999), defendant must file motion to withdraw guilty plea within 30 days after entry of plea; phrase "entry of the plea" refers to date of conviction, which generally occurs at sentencing, not at date of plea colloquy). See State v. Ostler, 31 P.3d 528 (2001).