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Motion & Order to Vacate a Conviction or Sentence

Discuss Your Legal Options with Our Pasadena Post-Conviction Relief Attorney

On January 1, 2017, a new law went into effect in California, allowing individuals who are no longer in criminal custody to challenge a criminal conviction or sentence. Under California Penal Code Section 1473.7 PC, you may file a motion to vacate your conviction or sentence if you meet certain requirements. This process, however, 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.

Contact Escovar & Avila, LLP to speak to our Pasadena post-conviction relief attorney about your legal options; call (626) 577-7700 today. Se habla español.

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. 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 which 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 Happens If the Motion Is Granted?

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 & Avila, LLP 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 & Avila, LLP for personalized representation and aggressive advocacy. Our firm can answer your questions and address any concerns you may have.

Get in touch with us at (626) 577-7700 to schedule your confidential case evaluation.

Why Choose Escovar & Avila, LLP?

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