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Plea-Withdrawal – Pre-Sentence – Generally

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate


¶11      “A defendant seeking to withdraw a plea of guilty or no contest prior to sentencing must show that there is a ‘fair and just reason,’ for allowing him or her to withdraw the plea.” State v. Kivioja, 225 Wis. 2d 271, 283, 592 N.W.2d 220 (1999) (citation omitted). A fair and just reason is “‘some adequate reason for defendant’s change of heart[,]’ … other than the desire to have a trial.” State v. Canedy, 161 Wis.  2d 565, 583, 469 N.W.2d 163 (1991) (citation omitted). The burden is on the defendant to prove a fair and just reason for withdrawal of the plea by a preponderance of the evidence. Id. at 583-84. If a defendant makes the necessary showing, “the court should permit the defendant to withdraw his or her plea unless the prosecution would be substantially prejudiced.” Kivioja, 225 Wis.  2d at 283-84. “[O]nce the defendant presents a fair and just reason, the burden shifts to the State to show substantial prejudice so as to defeat the plea withdrawal.” Bollig, 232 Wis. 2d 561, ¶34. The circuit court must apply this test liberally. Kivioja, 225 Wis. 2d at 284.

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