9. Withdraw Plea

The following sample motion to withdraw plea must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.



TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move for an order to withdraw his no contest plea and enter a new and different plea. The motion will be made on the ground that Defendant’s plea was not knowing and voluntary.

The motion will be based on this Notice of Motion, on the attached memorandum of points and authorities and filed herewith and such supplemental memorandum of points and authorities that may be hereafter filed with the court or stated orally at the conclusion of the hearing, on all papers and records on file in this action and on such oral and documentary evidence as may be presented at the time of the motion.


By Joe Whittington,
Attorney for Douglass Duhan



Good cause to withdraw a plea is shown if the defendant did not exercise free judgment in entering into the plea. (People v. Cruz (1974) 12 Cal. 3rd 562, 566; People v. Castaneda, 37 Cal. App. 4th 1617; People v. Huricks (1995) 32 Cal. App. 4th 1201).

Pleas may be set aside if defendants are unduly influenced to accept a plea because their counsel is obviously not prepared to proceed (People v. Young (1956) 138 Cal. App. 2nd 425), or the defendants represented by counsel entered into the plea as a result of fraud or duress. (Penal Code §1018; Cruz, supra, at 566; Huricks, supra; People v. Dena (1972) 25 Cal. App. 3rd 1001.)

In People v. Stanworth, 11 Cal. 3rd 588, the Supreme Court declared that defense counsel’s ignorance of relevant, material facts or applicable law may constitute grounds for withdrawal of a plea. “Where the facts establish that counsel was ignorant of the facts or the law and it appears that such ignorance caused the withdrawal of a crucial defense, his client is entitled to relief.”



I, Douglass Duhan, declare:

I am the defendant in this matter.

I entered a plea to serve a term of three years, but my plea was not knowing and voluntary based on the following facts:

1. My prior attorney told me that I was facing a maximum sentence of twelve years. It was only after I entered my plea that I learned I was actually only facing a sentence of six years.
2. I provided the appointed investigator with the name and phone number for my alibi witness, but no one contacted the witness. This left my prior attorney unprepared for trial and I felt that I had no choice other than to take a plea.
3. I was not informed of my right to compel the attendance of witnesses.
4. It was not until after I entered the plea that I learned my conviction would require me to register as a narcotics offender.
5. Had I known the above facts, I would not have entered the plea.

I declare that the foregoing is true and correct.


By Douglass Duhan, Defendant