Self-defense (legally known as justification) is one of the most effective legal defenses a person can raise in a criminal case in Georgia. This is in part because an argument of self-defense is available before and during trial. To raise this defense before trial, your attorney can file what is commonly called an “immunity motion.” During trial, your attorney can ask the judge to instruct the jury on the law of justification prior to closing argument. With a justification defense, you essentially get two bites at the apple.

Immunity Motion

If you believe you have a self-defense claim but the prosecutor will not dismiss your case, it is crucial that your attorney file an immunity motion and request a hearing. Georgia Code 16-3-24.2 makes it clear that anyone who threatens or actually uses force in a justified manner “shall be immune from criminal prosecution.” Georgia courts have also made it clear that a hearing on immunity is to be held prior to trial commencing. At the hearing the defendant is required to prove that she was justified in her use or threat of force by a preponderance of the evidence (meaning more likely than not).

What is Justification?

Georgia Code 16-3-21 states that a “person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force.” This is another way of saying that it is legal to use force against a person if you or another is in immediate danger of unlawful force. Additionally, use of deadly force is only justified when a person reasonably believes that deadly force is necessary to prevent “death or great bodily injury.”

However, the statute also puts limitations on this defense. First, the person seeking to use the defense cannot have been the aggressor in the scenario. Second, the person cannot provoke an attack as an excuse to harm the other person. Third, a person cannot use the justification defense when committing, attempting to commit, or fleeing from commission of a felony.

Justification at Trial

If you lose your immunity motion, you may still raise the defense at trial. And it may actually be easier to win at trail than at a hearing due to the burden of proof being different. As mentioned above, the burden of proof is on the Defendant to show at an immunity hearing that his or her conduct was justified. At trial, the defense need only show evidence that of justification and then the burden shifts to the state to prove beyond a reasonable doubt that the defendant was not justified. This is a very high burden for the state. Simply put, if the jurors have any suspicion or doubt that you could have been justified in the case, they must acquit you of the charge.

If you believe you may have a self-defense claim in your case, contact a Georgia criminal defense attorney today for a free consultation and case analysis.

In today’s post, I discuss when a person is allowed to withdraw a guilty plea. Many people, for one reason or another, change their mind after pleading guilty to a crime and wish to withdraw their plea. Georgia law permits the withdraw of a guilty plea only in certain circumstances.

Withdrawing a Guilty Plea Before Sentence is Imposed

The first and easiest way to withdraw a guilty plea is to do it before the judge imposes a sentence. Georgia Code 17-7-93(b) permits a defendant the total right to withdraw a guilty plea so long as they do so before they are sentenced. This is especially applicable when the judge delays sentencing and sets a sentencing hearing. Often, however, a defendant is sentenced immediately after the tender of his or her guilty plea. After sentence, whether a plea can be withdrawn comes under the discretion of the judge.

Withdrawing a Guilty Plea After Sentence is Imposed

Withdrawing a guilty plea becomes much more difficult after someone is sentenced in a case. According to the Uniform Superior Court Rules, a judge may withdraw a plea after sentence, but only if it is to correct a “manifest injustice.” Every plea made by a criminal defendant must be knowingly, voluntarily, and intelligently made. This basically means that the person must have been in their right mind and not fooled, tricked, misled or forced in to the plea. A plea that was not tendered knowingly, voluntarily, and intelligently, would be a manifest injustice.

Furthermore, the motion to withdraw must be filed within in the same term of court when the plea was originally entered. (In many counties in Georgia, a term of court is about every 3 months). After the time limit expires, the filing of a petition for habeas corpus is the only possible relief available.

It is also worth noting that pleas made under the First Offender Act or pleas into drug court (or any type of deferred sentencing) cannot be withdrawn. This is because there is no conviction actually being entered in on the case, which makes the statute inapplicable.

Bottom Line

If you or someone you know wants to withdraw a guilty plea, consult with a Georgia criminal defense attorney to better understand your options. A person may be able to withdraw a plea if done before sentencing or if the judge determines that not allowing the withdraw would be a manifest injustice.