Who Can Dismiss Charges Prior to Sentencing?

Dismissing charges prior to sentencing is within the authority of the prosecuting attorney, not the victim of the crime. Even if a victim wishes to have the charges dropped, the prosecutor must initiate the dismissal.

For example, if a defendant is charged with a domestic violence offense, only the prosecutor may later dismiss the charges. Even if the victim refuses to cooperate, the charges may be upheld. The victim cannot decide to “not press charges.”

Additionally, the prosecutor is likely to dismiss the charges “without prejudice.” That means that they could re-file the charges within a certain period of time. This may happen if there is not enough evidence or the prosecutor believes doing so is in the interest of justice.

  1. Who Can Dismiss Charges Prior to Sentencing?
  2. How to Get Charges Dropped After Sentencing
  3. A Top California Appeals Attorney Can Help You

How to Get Charges Dropped After Sentencing

In California, dismissal of charges must be accomplished through appeal, writ of habeas corpus, or expungements. Only a trial court or higher court may determine that charges were not appropriate and reverse them. If a court does so, the prosecutor can then decide not to pursue one or more charges going forward. Read below for more information about each of the options for dismissal of charges after sentencing.

Challenging a Plea Agreement

After a defendant enters into a plea agreement with the state and is thereafter sentenced, they may challenge the plea agreement or seek to withdraw it on limited constitutional grounds. If, for example, the prosecutor did not explain the immigration-related consequences of the plea, then the trial court may grant a motion to withdraw a plea.

If the trial court does not grant a withdrawal of a plea, the defendant may appeal or seek a writ of habeas corpus in a higher court. If the higher court vacates the plea agreement, the defendant has the chance to plead again.

In circumstances where the defendant faces multiple charges, the prosecutor has the authority to dismiss one or some of the charges against the defendant in exchange for a plea of guilty. In this manner, a charge or charges may be dropped or dismissed following the original sentencing.

Appeal or Writ of Habeas Corpus

If the defendant is convicted of a crime or crimes and the court pronounces sentence, the defendant may appeal the conviction or, if an appeal fails, may seek a writ of habeas corpus to challenge the conviction. In some cases, a higher court may reverse the conviction and order the state to re-try the defendant.

If a significant period of time has passed since the original conviction, the state may find that key witnesses are unavailable or that evidence has been destroyed, has been lost, or has become stale. The prosecutor may determine in such a case that the chances of conviction on the original charge or charges against the defendant are low. They may then choose to dismiss the charge or charges against the defendant.


In California, a person who pled guilty to or was convicted of a crime and sentenced to probation has a chance to expunge or clear their criminal record. California Penal Code (PC) 1203.4(a) allows a defendant to seek expungement when:

  • The person has fulfilled the conditions of probation for the entire period of probation;
  • The person has been discharged prior to the termination of the period of probation;
  • A court, in its discretion and in the interests of justice, determines that a defendant should be granted expungement.

A person must apply for expungement. Following the application, the court permits the person to withdraw their plea of guilty or plea of nolo contendere and enter a plea of not guilty, or, if they were convicted after a plea of not guilty, the court sets aside the verdict of guilty. In either case, the court then dismisses the charges against the defendant.

  1. Who Can Dismiss Charges Prior to Sentencing?
  2. How to Get Charges Dropped After Sentencing
  3. A Top California Appeals Attorney Can Help You

A Top California Appeals Attorney Can Help You

Except in the case of expungements, the dismissal of charges against a defendant after sentencing is rare and is accomplished only after withdrawal of a plea or taking a conviction to a court other than the trial court and obtaining a reversal of the conviction. Following sentencing, a prosecuting attorney has little incentive to dismiss a charge except to obtain a plea of guilty to a more serious charge or if the chances of conviction have changed significantly.

You may have options in your case. Award-winning CA appeals lawyer Aaron Spolin and his legal team at Spolin Law P.C. can review your case and help you understand if you are eligible for dismissal of your charges. Call us today at (310) 424-5816.