Proposed Timing Requirements for the Common-Law Motion to Withdraw a Plea: The Creation of a New Procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W. 2d 504 (2013).

Abstract

This Note traces the Nebraska Supreme Court’s creation and development of the common law motion to withdraw a plea. In 2013, the court recognized this new procedure which allows defendants to withdraw their guilty or no contest pleas after their conviction has become final. The procedure is available only in extremely limited circumstances and only when (1) the Nebraska Postconviction Act is not, and never was, available to the defendant as a means of asserting the grounds justifying withdrawing the plea, and (2) a constitutional right is at issue. The court has only addressed this procedure three times since it initially created the common-law procedure in State v. Gonzalez, 285 Neb. 940, 830 N.W. 2d 504 (2013) and has not yet clarified when defendants can raise this motion. Because the common-law procedure is intended to be a substitute when the Postconviction Act is not available to the defendant, this author argues that the timing requirements of the Nebraska Postconviction Act should apply to common law motions to withdraw a plea. Specifically, the author argues that defendants should be required to file their motion within one year of: 1) The date the judgment or conviction became final by the conclusion of a direct appeal or the expiration of the time for filing a direct appeal;2) The date on which the factual predicate of the constitutional claim or claims alleged could have been discovered through the exercise of due diligence; or3) The date on which a constitutional claim asserted was initially recognized by the Supreme Court of the United States or the Nebraska Supreme Court, if the newly recognized right has been made applicable retroactively to cases on postconviction collateral review.