Motion & Order to Vacate a Conviction or Sentence

Motion to Vacate Conviction for California Residents

Under California Penal Code Section 1473.7 PC, individuals who are no longer in criminal custody can challenge a criminal conviction or sentence. In order to file a motion, you must show:

• You were unable to understand, or defend against, the negative immigration consequences of a “guilty” plea
• New evidence has been discovered

This process can be quite complex. It is crucial that you speak to an experienced attorney in order to fully understand your rights and to ensure that your motion is correctly filed.

Who Can File a Motion to Vacate in California?

A motion to vacate offers a method of challenging convictions and/or sentences for those no longer in custody. An expungement is another post-conviction remedy worth exploring depending on your situation. Prior to the 2017 law, convictions could only be challenged while an individual was in custody—either in jail, in prison, or on probation. This meant that convicted individuals had essentially no recourse once released.

The law now allows those individuals who were not aware that a “guilty,” or nolo contendere (“no contest”), plea would lead to deportation to challenge their convictions/sentences. It also allows individuals to challenge convictions/sentences on the basis of newly discovered evidence.

In order to be eligible to file a motion to vacate a conviction or sentence in California, you must show one of the following:

• A prejudicial error was made, resulting in your inability to understand or defend against deportation or other negative immigration consequences of a “guilty” plea
• New evidence has been discovered that may prove you are actually innocent of the crime you were convicted of committing

While there is no set time limit for filing a motion to vacate, you must do so with “reasonable diligence” after first learning of the negative immigration consequences resulting from a “guilty” plea or after becoming aware of new evidence in your case. Immigrants who wish to file a motion and order to vacate a conviction or sentence do not need to have a green card or be a naturalized citizen in order to do so; they may file the motion while in the application process or at any other time.

What Does It Mean When a Conviction is Vacated?

If your motion to vacate is granted, you will have the opportunity to withdraw your plea and enter a new one. Having your motion granted does not mean your charges are dropped. It merely allows you to enter a new plea and may result in a new trial.

You may, however, get credit for any and all time you have already served as a result of your conviction.

Anyone who files a motion to vacate is entitled to receive a hearing. For those who have already been deported or who are in immigration custody, attendance at the hearing is not mandatory as long as your attorney attends the hearing in your place.

Contact Escovar Law, APC Today

If you believe that you meet the criteria to file a motion and order to vacate a conviction or sentence in California, it is imperative that you discuss your situation with an attorney. It is not wise to attempt to file the motion on your own. Instead, reach out to the seasoned Pasadena criminal defense lawyer at Escovar Law, APC for personalized representation and aggressive advocacy. Our firm can answer your questions and address any concerns you may have.