If the answer is no, then Battle had an absolute right to change his plea, and the district court was wrong in applying the fair-and-just-reason test. Today’s ruling includes yet another in the seemingly endless string of Booker challenges to sentencings, but the real story is the Fourth’s resolution of the question of whether a “provisionally accepted” plea has, in fact, been accepted for Rule 11 purposes. “Sure,” Battle replied, “I don’t wanna go to prison for ten years, like it says in this cockamamie report.” Not good enough, the district judge ruled, and sentenced Battle according to the report. By that point, and with that testimony on the record, who wants to face a jury? But I digress.) The trial judge asked if he had a fair and just reason for doing so. (Yet another aside: Why on earth would he want to do that? Part of the colloquy is to spill your guts as to your involvement in the crime, presumably under oath. Some days later, Battle had a change of heart, and moved to withdraw his plea. ”Īs an aside, I didn’t think that you could be “provisionally guilty” any more than you could be “provisionally pregnant.” But I always try to learn something new every day, and this will suffice for today’s enhancement of my knowledge base. The order also contained an adjudication I had never seen before reading this opinion: “he defendant now stands provisionally guilty of Count One. But instead of accepting the plea, the judge said this: “Your plea of guilty is provisionally accepted pending receipt of the presentence investigation, and the court will defer final acceptance of the plea agreement and the adjudication of guilt until we’ve all had an opportunity to review that report.” In an order confirming the day’s proceedings, the court noted that it had “conditionally accepted” the plea. After conducting a colloquy on the plea, the district judge determined that the plea was made knowingly and intelligently, with full knowledge of the consequences. Battle offered a guilty plea on a firearms possession charge. This case turns on just what “accepted” means in Rule 11. The right to withdraw an unaccepted plea is absolute. But if he does so before the plea is accepted, then he can force that decision on the court, even if he doesn’t have a reason. If he seeks to withdraw the appeal after the plea has been accepted but before sentencing, then he has to convince the district judge that he has a “fair and just reason” for changing the plea. If the plea has been accepted and sentence imposed, then the defendant is almost certainly out of luck he has to resort to an appeal or habeas corpus. 11(d) provides that if a defendant enters a guilty plea, it can be withdrawn under certain circumstances, depending on how much has gone on in the case. Criminal practitioners take note: The Fourth Circuit today hands down a published opinion that defines the point at which a guilty plea has been accepted and cannot be unilaterally withdrawn. NEW GUILTY PLEA RULING FROM FOURTH CIRCUIT
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