Already take a plea? And now you want to know if you can back out of it even though the 90 day time window to request relief has already passed? Is there anything you can do?
If you are looking to retract a plea, there will be a few hurdles to overcome. The first is making sure your cause for retraction follows the "Grounds for Relief," under 16A A.R.S. Rules Crim.Proc. Rule 32.1, which states:
Grounds for relief are:
f. The defendant's failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part;
Rule 32, also known as an "of right proceeding," is limited to claims concerning the propriety of a defendant's conviction or sentence. After the "of right proceeding" is met Rule 32(f), or a "delayed appeal", can be made after the permitted 90 day time limit.
When filing a delayed appeal, note that the petitioner has "burden of establishing the absence of any fault on his part in failing to timely file an appeal." Also, defense counsel cannot waive a defendant's right to appellate relief; the waiver must be solely the decision of the accused.
Once the burden to meet a delayed appeal has been satisfied, the defendant must present a colorable claim. A colorable claim is a claim strong enough to have a reasonable chance of being valid if the legal basis is generally correct and the facts can be proven in court. In order for a defendant's claim to be considered colorable of newly-discovered evidence, all of the following five requirements must be met:
- The evidence must appear on its face to have existed at the time of trial but be discovered after trial;
- The motion must allege facts from which the court could conclude the defendant was diligent in discovering and bringing them to the court's attention;
- The evidence must not simply be cumulative or impeaching; unless the impeachment evidence substantially undermines testimony that was of critical significance at trial;
- The evidence must be relevant to the case;
- The evidence must be such that it would likely have altered the verdict, finding or sentence if known at the time of trial. The concern would be that the evidence might be merely cumulative and would be used solely for impeachment.
As always, make sure that you have a proper defense attorney, like the ones at the Rosenstein Law Group, to help you if you want to retract a plea. At our law firm, all of our attorneys are well educated and experienced in all facets of DUI defense including plea retractions.