Persons charged with a criminal offense must understand the difference between pleading Nolo Contendere and pleading Guilty.

Nolo Contendere Plea

Nolo Contendere is a Latin legal term which means, “I do not wish to contend.” A Nolo contendere plea is also referred to as a plea of No Contest. In criminal trials entering a plea of Nolo Contendere is a plea in which the person charged with a criminal offense neither admits nor disputes the charges brought against them. A Nolo Contendere plea, while not technically a guilty plea, will have the same immediate effect as a guilty plea, and is often offered as part of a plea bargain. A plea bargain is an agreement in a criminal case between the prosecuting official and the defense attorney whereby the person charged with a crime agrees to plead guilty to a particular charge in return for a lenient sentence recommendation from the prosecuting official.

A Nolo Contendere plea will have the same immediate effect as a plea of guilty, however may have different residual effects or consequences in future actions. For example, a conviction arising from a Nolo Contendere plea is subject to any and all penalties, fines and forfeitures as is a conviction from a guilty plea in the same case. However, unlike a guilty plea, a person who entered a Nolo Contendere plea may not be required to address the court as to why the recommended sentence should be lenient. This is important to understand because it means that a Nolo Contendere conviction typically may not be used in later civil proceedings related to the same set of facts as the criminal prosecution to establish either negligence per se, malice, or whether the acts were in fact committed.
A Nolo Contendere plea is not a guaranteed constitutional right. In state court, state law determines whether, and under what circumstances, a person charged with a crime may or may not enter a plea of Nolo Contendere. In federal court, the Federal Rules of Criminal Procedure only allow a Nolo Contendere plea to be entered with the court’s consent because the court is required to consider the parties’ views and the public interest in the effective administration of justice.
In addition, the most important thing to understand about a Nolo Contendere plea is that under the Federal Rules of Evidence (which apply in GA) such a prior-conviction may not be used to defeat the hearsay prohibition if offered as an admission by a party-opponent in a criminal case. A guilty plea to the same charge will cause the reverse effect and a party-opponent will be allowed to introduce the guilty plea at trial, over a hearsay objection, as evidence to establish the prior-conviction.
Guilty Plea

A Guilty plea is an admission of criminal wrongdoing. A Guilty plea is the result of plea bargain negotiations between a prosecuting official and a defense attorney. A Guilty plea allows both parties to avoid a lengthy criminal trial and may allow persons charged with a criminal offense to avoid the risk of conviction at trial on more serious charges. A Guilty plea is negotiated between the prosecuting official and the defense attorney on a case-by-case basis. A Guilty plea may mean that a person charged with a criminal offense will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges. A Guilty plea may also mean that the person charged with a criminal offense will plead guilty to the original charge in return for a more lenient sentence recommendation from the prosecuting official. For example, a person charged with felony theft, the conviction of which would require jail time in a state prison, may be offered the opportunity to enter a Guilty plea to a misdemeanor theft charge, which may not carry jail time but rather probation.

A person charged with a criminal offense who decides to enter a Guilty plea must do so knowingly, voluntarily and intelligently. The burden of showing that the Guilty plea was entered knowingly, voluntarily and intelligently is on the prosecuting official. The prosecuting official must prove that any and all waivers of personal rights complied with constitutional due process standards. Accordingly, the presiding judge who will accept a Guilty plea will engage the person charged with a criminal offense in a plea colloquy wherein the judge will ask a series of questions about the person’s knowledge of his or her rights and the voluntariness of the Guilty plea.
Under the Federal Rules of Evidence (which apply in GA), a judge accepting a Guilty plea must also inquire into the factual basis for the plea. However, when the prosecuting official and the defense attorney have reached a negotiated plea agreement, both parties may be reluctant to reveal any information that might disturb the agreement. Therefore, when a plea agreement has been negotiated, the judge’s factual basis inquiry is usually perfunctory, and the standard for finding that the plea is factually based is very low.
Persons who initially decide to enter a Guilty plea to criminal charges will be allowed to withdraw the Guilty plea if the defense attorney files a motion to vacate the Guilty plea. If the motion is successful the guilty plea will be vacated and the case will be restored to the court’s calendar. The person withdrawing a Guilty plea can then either enter another plea or proceed to trial. Withdrawing a Guilty plea is not an absolute right. The decision to grant a motion to vacate a Guilty plea rests firmly within the discretion of the judge who accepted the original plea. The judge who initially accepted the Guilty plea will decide to grant or deny the motion after a hearing. When reviewing requests to withdraw a Guilty plea, judges consider (i) whether there is a colorable (or believable) claim of innocence, (ii) the nature and strength of the reasons for withdrawal, (iii) whether the original plea deal was fair, and (iv) whether allowing the request would result in unfair prejudice to the state or an unjust advantage to the accused.
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