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).

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…

725 ILCS 5/114-1(e).

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
• Intentional or more serious due process violations

See Also These Examples Of When To File A Motion To Dismiss In A Criminal Case

• Motion To Dismiss Based On Prosecutorial Delay (The Lawson Rule)
• Procedure For Filing A Motion To Dismiss When The Charging Instrument Is Insufficient
• What To Do About Fatally Flawed Criminal Charges (Maybe You Shouldn’t File The Motion To Dismiss)
• Defendant Waited For The Trial To Begin So He Had To Show Prejudice To Win A Dismissal
• Prosecutors Refusal To Name The Victim In The Indictment Got The Charges Dismissed
• DUI Dismissed After State Trooper Consistently Refuses To Come To Court
• Speeding Ticket Dismissed Due To Illinois Supreme Court Rule 552 Violation
• Speedy Trial Violation Leads To A Motion To Dismiss That Is Granted
• A Double Jeopardy Violation Means You Better File A Motion To Dismiss
• Sloppy Police Testimony In The Grand Jury Room May Lead To A Dismissal Of The Charges
• Failure To Accurately Charge A Defendant May Lead To Dismissal Of The Charges

Win A Dismissal With Prejudice With A Motion To Dismiss

A case that is dismissed with prejudice can happen on the state’s own motion or a defendant can file a motion to dismiss to force the dismissal.

There is no magic formula outlining what a motion to dismiss should look like. Like most criminal law motions it should track the language in the statute that authorizes the motion and should at a minimum include:

• A clear statement of what your asking the court to do
• Citations to the statute that allow you to ask what your asking for
• Citations to relevant case law that provide further authority for what your asking for
• The specific facts unique to your case that are relevant to the motion