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Can I vacate a plea for a case that was dismissed?
- Thread starter haid420
- Start date
No.
If a plea is withdrawn in order for the judge to dismiss the case then there is no plea to vacate. Something termed as pre-trial diversion, Federal First Offender Act treatment, adjudication withheld or something similar means that there was no finding of guilt eneterd on the record.
If the plea still existed that means that the person who made the plea was judged guilty, was punished, and that is a matter of record.
Any case that is vacated on constitutional grounds (bad evidence or due process violations) has the effect of wiping the record clean.
A post-conviction vacation made solely to avoid immigration consequences is invalid and has no effect.
If a plea is withdrawn in order for the judge to dismiss the case then there is no plea to vacate. Something termed as pre-trial diversion, Federal First Offender Act treatment, adjudication withheld or something similar means that there was no finding of guilt eneterd on the record.
If the plea still existed that means that the person who made the plea was judged guilty, was punished, and that is a matter of record.
Any case that is vacated on constitutional grounds (bad evidence or due process violations) has the effect of wiping the record clean.
A post-conviction vacation made solely to avoid immigration consequences is invalid and has no effect.
Exactly! I didn't plead guilty but pleaded no contest (which is considered pleading guilty) but now I would like to have that plea vacated based on constitutional rights BUT for a case that was 'dismissed' three years ago. I'm not trying for PCR for immigration consequences. All the PCR citations I'm finding are for cases with sentences/punishment but mine didn't have any: it was dismissed.
No.
If a plea is withdrawn in order for the judge to dismiss the case then there is no plea to vacate. Something termed as pre-trial diversion, Federal First Offender Act treatment, adjudication withheld or something similar means that there was no finding of guilt eneterd on the record.
If the plea still existed that means that the person who made the plea was judged guilty, was punished, and that is a matter of record.
Any case that is vacated on constitutional grounds (bad evidence or due process violations) has the effect of wiping the record clean.
A post-conviction vacation made solely to avoid immigration consequences is invalid and has no effect.
Last edited by a moderator:
LateKnight
Registered Users (C)
What does the certified disposition say? U need to see what the outcome is on paper. Immigration will look at that only..
I requestd it last week and am waiting for it.
What does the certified disposition say? U need to see what the outcome is on paper. Immigration will look at that only..
just got home from work and found the Order of Disposition in my mailbox. Its weird because on top it after Beaver county and State of Utah vs Haider etc etc it says:
Case Number XXXXXXXX Traffic Citation
Charges
Charge 1- Possession of <1 oz Marijuana Class B Misdemeanor
Date:---------
Disposition: Oct 28, 2008 Dismissed
Charge 2- Possession of Drug Paraphernalia Class B Misdemeanor
Date- same
Disposition: (same date) Dismissed
What does this mean?
Case Number XXXXXXXX Traffic Citation
Charges
Charge 1- Possession of <1 oz Marijuana Class B Misdemeanor
Date:---------
Disposition: Oct 28, 2008 Dismissed
Charge 2- Possession of Drug Paraphernalia Class B Misdemeanor
Date- same
Disposition: (same date) Dismissed
What does this mean?
What does the certified disposition say? U need to see what the outcome is on paper. Immigration will look at that only..
They might just give you a quick waiver that they reserve for posession of less than 30 grams of Marijuana. Or they might ask you to wait for their investigation if they choose to request their own copies of unsealed records from that case from the county. There is a standard easy to obrain waiver for posession of 30 grams or less of marijuana but I'm not sure if paraphernalia can be or cannot be included there. Usually paraphernelia is found with marijuana so common sense would say yes but it's really surprising that your lawyer is taking this so seriously.
There is no waiver for more than one charge (straight from INA). Even if it were just one possession charge with less than 30gms it would have to be 15 years ago. I have spoken to many attorneys including pro bono ones and every one of them said that this is a straight out rejection and possible deportation.
They might just give you a quick waiver that they reserve for posession of less than 30 grams of Marijuana. Or they might ask you to wait for their investigation if they choose to request their own copies of unsealed records from that case from the county. There is a standard easy to obrain waiver for posession of 30 grams or less of marijuana but I'm not sure if paraphernalia can be or cannot be included there. Usually paraphernelia is found with marijuana so common sense would say yes but it's really surprising that your lawyer is taking this so seriously.
There is no waiver for more than one charge (straight from INA). Even if it were just one possession charge with less than 30gms it would have to be 15 years ago. I have spoken to many attorneys including pro bono ones and every one of them said that this is a straight out rejection and possible deportation.
I'm not sure about that. Even on here people have been treating the 30gms of marijuana posession as nothing more than a joke. And while the paraphanelia was another count it's still part of the same incident. And the 15 year period is for serious aggravated felonies and the idea is to prove that you have been rehabilitated. One count of marijuana posession is in a class by itself...even all the forms clearly mention that.
Anyway, there's the inadequate council defence too. The judge and DA collectively failed to provide you with an opportunity to plead not guilty by failing to inform you of the immigration consequences of taking a plea bargain.
And besides that I also read in a couple of cases that with aggravated felonies you can be denied residence for 15 years but you are free to work on H1B visas all during that time. The bar is only for permanent immigration not non-immigrant visas.
pleasehelp08
Registered Users (C)
paraphanelia charge is probably the big issue in your case. If you get the case vacated based on immigration, its not going to help you.