Dismissed With Prejudice
Illinois law is clear that the State may dismiss a charge “with prejudice” and that the effect of the State’s doing so is to subsequently bar the State from prosecuting the same defendant for the same offense based on the same facts. See People v. Gill, 379 Ill. App. 3d 1000 (2008); People v. Creek, 94 Ill.2d 526, 531 (1983).
However, a state motion to dismiss with prejudice is very uncommon. See also Nolle Prosequi Motions.
By making a motion to dismiss with prejudice, the State is, in effect, barring itself from ever again charging this same defendant with the same crime on the same facts. See Gill, 379 Ill. App.3d 1000.
Dismissal Without Prejudice More Common
Instead when a prosecutor dismisses charges the default is to assume it is doing so “without prejudice.” This is the converse and polar opposite of dismissing with prejudice.
A trial court will generally infer the State’s intent to dismiss without prejudice. The stakes are simply too great to assume otherwise.
Before a trial court may determine that the State is dismissing a charge with prejudice, the prosecutor must clearly and explicitly state that she is doing so. Anything short of such a statement does not constitute a dismissal with prejudice. See Gill, 379 Ill. App.3d 1000.
When The Judge Dismisses Charges
Additionally, sometimes a defendant may file their own motion for dismissal.
If a judge agrees that dismissal is warranted the Illinois Code of Criminal Procedure determines if the dismissal is with or without prejudice. 725 ILCS 5/114-1. Motion to dismiss charge, makes it clear that a…
Some Dissmisals Are With Prejudice
Other more serious violations are presumed to be dismissals with prejudice. These include dismissals because of violations in
- Speedy trial rights
- Improper joinder
- Double jeopardy issues
- Statute of limitations error
- Immunity agreement violations