Some clients experience regret about pleading guilty and want to know whether it is possible to withdraw their plea and go to trial instead. That's not as easy as it may sound. A negotiated plea is essentially a contract between the prosecution and the defense.
Official Code of Georgia § 17-7-93 (b), provides that “[a]t any time before judgment is pronounced, the accused person may withdraw the plea of ‘guilty’ and plead ‘not guilty.’” The phrase "at any time before judgment is pronounced" means at any time before the judge orally pronounces sentencing in court. Therefore, the client had an absolute right to withdraw the plea before sentence was pronounced, but not once sentence was pronounced.
After sentencing, the decision whether to allow withdrawal lies within the trial court's discretion. In order to withdraw a guilty plea after sentencing has been pronounced, the client has to show that it is necessary to correct a “manifest injustice”. (An exception is in those situations where the plea is a negotiated plea and the judge sentences someone above and beyond the negotiated sentence.)
Mere regret does not constitute manifest injustice. The client has to show that the plea was not a knowing, intelligent and voluntary plea. Clients can argue that they were not in their right mind, were misinformed, or for some other reason did not understand what was happening. The trial court is the final word of all factual issues, and after sentence is pronounced a guilty plea may be withdrawn only to correct a manifest injustice.
It would not be feasible for the client to use the same attorney to withdraw the plea as the client used before. For example, one of the reasons the client may want to argue is that the plea was not knowing, intelligent, and voluntary because the lawyer misinformed the client. Obviously, the same lawyer cannot make that argument against himself, and certainly can’t cross-examine himself. That’s why I advise the client to speak with an attorney other than the original one about withdrawing the plea. Clients are entitled to an attorney on a motion to withdraw a plea if the client cannot afford one and if the client is raising the issue of ineffective assistance of counsel in the client's motion, but if it was a public defender that got the client into a plea that the client now wants to withdraw, why would the client use a public defender again?
The client must also file the motion to withdraw a guilty plea in the same term of court as the plea. After the expiration of that term, the trial court lacks jurisdiction to allow the withdrawal of the plea. Thus, after the expiration of that term and of the time for filing an appeal, the only remedy available to the client would be through habeas corpus proceedings. If the client is successful at withdrawing the plea, neither the client nor the prosecutor can mention the plea or the negotiations at trial.
Even if the client does not withdraw the plea in time, the client has four (4) years to challenge a felony plea (and one (1) year to challenge a misdemeanor plea) via a Writ of Habeas Corpus. But the client has to have a reason to challenge the legality of the plea. Regret is not a valid reason. Valid reasons include that the client's attorney misrepresented something or that the client was promised something in exchange for the plea that the client did not get. Most of these issues are covered in the long list of questions the client has to answer before a court accepts the plea, which is precisely why they ask the questions.