Vacating a Conviction
There are many reasons to vacate a conviction that someone has suffered. But the most important for some people, is the immigration consequences of a conviction. Needless to say, if a conviction is vacated, the immigration consequences are eliminated. There are several vehicles to accomplish the vacating of convictions. Some to be noted are:
1. Motion in trial court to withdraw guilty plea under Penal Code §1018.
2. Direct Appeal from Conviction
3. Writ of Habeas Corpus
4. Motion to Vacate Judgment or Writ of error Coram Nobis
5. Non-statutory Motion to Vacate
6. Statutory Motion to Vacate for Violation of Penal Code §1016.5
Motion to Withdraw Guilty Plea under Penal Code §1018
Under Penal Code §1028, a court may allow a Respondent to withdraw his guilty plea “for good cause shown” before judgment is entered or within six months, after the defendant is placed on probation.
Direct Appeal from Conviction
A Direct Appeal is the most direct form of post conviction challenge to the validity of a criminal case. It can take from one to two years to complete.
Writ of Habeas Corpus
A Writ of Habeas Corpus may be sought in either state or federal court to collaterally attach an order of appeal.
Petition for Writ of Error Coram Nobis
Coram Nobis is a judicially created remedy to secure relief from a judgment that was rendered by the court in ignorance of a fact which (a) does not go to guilt or innocence but (b) if known by the court would have prevented the judgment.
The purpose of the writ is to provide a remedy where none is available, against a judgment that was procured under circumstances that violate the Due Process Clause of the Fourteenth Amendment.
