If you plead guilty or no contest to a crime in Nevada, you can file with the court a “motion to withdraw a plea” asking to take it back. However, judges usually reject motions to withdraw a plea unless there is a good reason.

Common grounds for motions to withdraw a plea in Nevada are:

1. you suffered from ineffective assistance of counsel,
2. you did not make your plea voluntarily,
3. you were not informed that probation may be unavailable, and/or
4. you suffered from ineffective assistance of a translator (if applicable).

Below our Las Vegas criminal defense attorneys discuss “motions to withdraw a plea” in Nevada including the time frame for vacating judgments and the process for asking to vacate a conviction. Click on a topic to go directly to that section.

• 1. What is a “motion to withdraw a plea”?
• 2. What kinds of pleas can be withdrawn?
• 3. When can it happen?
• 4. What are the grounds?
• 5. What about a “habeas corpus petition”?
• 6. Will there be a hearing?
• 7. Can I appeal if the judge refuses to withdraw my plea?
• 8. May I request to withdraw a plea more than once in the same case?

If you have been convicted at trial, see our article for motions for a new trial.

1. What is a “motion to withdraw a plea”?

A motion to withdraw a plea — also referred to as a “motion to vacate conviction” or “motion to vacate judgment” — is when you ask the court to ignore your guilty or no contest plea and resume your case as if the plea never happened. Therefore, if you are having second thoughts about having entered a plea, you would file a motion to withdraw a plea in an attempt to undo your actions.

If the court grants your motion to withdraw a plea, it is as if you are starting the case over at the arraignment stage (which is the very beginning of the criminal case). If the court denies your motion to vacate judgment, you remain bound to the original plea deal.

Also see our article on how to commute a sentence.

2. What kinds of pleas can be withdrawn?

You may file motions to withdraw pleas of either:

• guilty,
• guilty but mentally ill, or
• nolo contendere (“no contest”).

Note that when you plead “nolo contendere,” you are not admitting guilt but are admitting that there is sufficient evidence to find you guilty.¹

3. When can it happen?

You may file a motion to withdraw your plea any time prior to sentencing (which is when the judge imposes your penalties). After sentencing, you may not file a motion to withdraw a plea unless:

1. You have not filed a prior motion to withdraw the plea and have not filed a prior post-conviction petition for a writ of habeas corpus; and
2. The motion is filed within one year of you being convicted, unless you pleaded specific facts demonstrating that some outside impediment prevented bringing the motion earlier; and
3. At the time you file the motion to withdraw the plea, you are not incarcerated for the charge you pleaded to; and
4. Your conviction was not too long ago. (If more than five years have elapsed, it is unlikely the court will grant it.)

Otherwise, if you have already been sentenced, your only option may be to file a habeas petition within one year of your conviction.²

4. What are the grounds?

There are various legitimate grounds for withdrawing a plea in Nevada. These include:

• ineffective assistance of counsel,
• your plea was not made knowingly, voluntarily, and intelligently,
• you were not informed that probation may be unavailable, and/or
• ineffective assistance of an interpreter/translator.

Courts consider the “totality of the circumstances” in determining whether withdrawing a plea would be “fair and just.”³ Courts look at the entire court record (transcripts and paperwork) to determine whether the grounds are valid.

Ineffective Assistance of Counsel

A court may grant your motion to withdraw a plea if the court finds that you suffered from “ineffective assistance of counsel.” This is when your defense attorney’s representation fell below an objective standard of reasonableness under prevailing professional norms.

Note that “ineffective assistance of counsel” is a very high bar. Attorney mistakes do not qualify as ineffective assistance unless they prejudice you. Other examples of ineffective assistance of counsel could include your defense attorney either:

• telling you that you can withdraw a guilty plea at will, and not telling you that the court has the final say over whether a plea can be withdrawn;
• having a conflict of interest with you;
• failing to adequately investigate your case;
• failing to present available mitigating evidence to try to obtain a less harsh sentence;
• failing to file appropriate motions; or
• coercing you into making the plea.

Also note that most communications between you and your defense attorney are confidential. However, if you move to withdraw your plea based on ineffective assistance of counsel, you may be forced to waive that privilege. This is because your defense attorney may need to testify in court about the effectiveness of their representation.

Plea Was Not Made Knowingly, Voluntarily, and Intelligently

Pleading to a crime is valid only when you enter the plea “knowingly, voluntarily, and intelligently.”⁴ In other words, it must be your choice to enter the plea, and you must be aware of the consequences of making the plea. For example, a plea is not valid if:

• you were insane at the time of the plea and/or
• you were intoxicated at the time of the plea.⁵

Nevada courts look at a “totality of the circumstances” when determining whether you entered a plea knowingly, intelligently, and voluntarily.⁶ If court records show that you discussed the plea with your lawyer, understood the consequences of the plea, and signed the plea agreement voluntarily, then it is unlikely the court with grant your motion to withdraw the plea.

Note that it is not a valid ground for withdrawing a plea for you to claim that you are actually innocent of the charges.

You Were Not Informed that Probation May Be Unavailable

In order for a plea to be valid in Nevada, you need to have been informed of whether probation is a possibility in your case. Courts look at the entire record and consider the totality of the circumstances when deciding whether you knew that your offense was non-probational.⁷

Example: David enters a plea for burglary. He already has one past burglary conviction. The judge then orders David to Nevada State Prison. David was hoping to get probation, and he files a motion to withdraw the plea. If the court determines that David was never informed – and had no way to know – that probation is unavailable for a second-time burglary offense, then the court should withdraw the plea because it was fatally defective.

Ineffective Assistance of an Interpreter/Translator

If you do not speak English and are charged with a crime in Nevada, you are entitled to competent interpreters who correctly translate for you and who do not have a conflict of interest with you.⁸ If the court can determine that an interpreter caused you prejudice, then your guilty plea may be invalid.

5. What about a “habeas corpus petition”?

You may not file motions to withdraw a plea after sentencing. Instead, you may file habeas corpus petition to contest your incarceration. There are nine conditions under which a court may grant a habeas corpus petition:

1. When the jurisdiction of the court or officer has been exceeded.
2. When your imprisonment was at first lawful, yet by some act, omission or event, which has taken place afterwards, you have become entitled to be discharged.
3. When the process is defective in some matter of substance required by law, rendering it void.
4. When the process, though proper in form, has been issued in a case not allowed by law.
5. When the person having the custody of you is not the person allowed by law to detain you.
6. Where the process is not authorized by any judgment, order or decree of any court, nor by any provision of law.
7. Where you have been committed or indicted on a criminal charge, including a misdemeanor (except misdemeanor violations of traffic laws) without reasonable or probable cause.
8. Where you have been committed or indicted on any criminal charge under a statute or ordinance that is unconstitutional on its face is unconstitutional or in its application.
9. Where the court finds that there has been a specific denial of your constitutional rights with respect to your conviction or sentence in a criminal case.⁹

You may also file a petition for a writ of habeas corpus if you have been wrongfully denied bail before conviction.¹⁰

6. Will there be a hearing?

Yes. Nevada courts may hold an evidentiary hearing (like a mini-trial) to help determine whether to grant your motion to withdraw a plea. At the hearing, both you and prosecution may make arguments and present evidence.

7. Can I appeal if the judge refuses to withdraw my plea?

Yes. However, the Nevada Supreme Court will not reverse a lower court’s decision absent a “clear abuse of discretion.”¹¹

This means that if a court denies your motion to withdraw a plea, the denial will probably stand on appeal unless the Nevada Supreme Court finds that the district judge was clearly wrong.

8. May I request to withdraw a plea more than once in the same case?

Yes. However, if your first motion did not identify all the grounds for the plea being invalid, the court is less likely to grant any successive motions to withdraw a plea.

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