Nolle Prosecui Is An Illinois Motion To Dismiss A Criminal Charge.
The term nolle prosecui is Latin. It literally means…
unwilling to pursue.
Only Prosecutors Make A Motion To Nolle Prosecui
A motion to nolle prosecui or nolle pros is rooted in English common law and dates back to the latter half of the 1600s. It has precisely the same effect as a simple motion to dismiss. See People v. Gill, 379 Ill. App. 3d 1000 (2008).
Since a prosecutor is the only one with statutory authority to prosecute a criminal case they are the only ones who can nol-pros a charge.
Nolle Prosequi In Illinois
A nolle prosequi is the formal entry of record by the prosecuting attorney by which he or she declares that he or she is unwilling to prosecute a case.
The nature of a nolle prosequi was explained by the Illinois Supreme Court in People v. Watson, 394 Ill. 177, 179, 68 N.E.2d 265 (1946). The Watson court stated:
A nolle-prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution. Again, it has been said that the ordinary effect of a nolle prosequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense.394 Ill. at 179.
A nolle prosequi is the formal entry of record by the prosecuting attorney by which he declares that he is unwilling to prosecute a case and serves to terminate the charge against the defendant. See People v. Daniels, 2016 IL App (1st) 142130 (July).
It operates “like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.” Watson, 394 Ill. 177 at 179.
A court must allow the State’s Attorney to enter a nolle prosequi unless it is persuaded that the prosecutor’s action is
- Capricious or vexatiously
- Repetitious or
- That the entry of a nolle prosequi will prejudice the defendant.
Thus, where charges against a defendant are nol-prossed before
jeopardy attaches, the State is entitled to refile the charges against the defendant. A nolle prosequi is generally a motion to dismiss with out prejudice.
Cook County SOL
In Cook County criminal court, especially in the traffic rooms, you may see a “motion to strike with leave to reinstate.”
This motion is also called an SOL (“stricken on leave”), and is not sanctioned by statute.
The substantive differences between the effect of a nolle prosequi and an SOL is that, in the case of an SOL, the charge continues to lie against the accused and may be resurrected upon the State’s motion at any time.
When a charge is SOL’d, it continues to lie against the
defendant in a dormant state. The prosecution is not terminated and may be reinstated at any time upon the State’s motion.
A nolle pros, however, terminates the charge and requires the institution of a new and separate proceeding to prosecute a defendant for that offense. After a nolle-pros the defendant released from custody without bond, because there is no charge pending against him.
Advantages Of An SOL
The SOL procedure is an administrative method of avoiding the necessity of filing an additional charge. Since the charge is just dormant it’s easier for the state to simply activate the same charges under the same file number.
But if a charge is nol-prossed it cannot be “reinstated” because there is no charge pending to reinstate. The state likely has to refile new charges under a new case number to proceed with the charges.
However, see People v. Deblieck, 181 Ill. App. 3d 600 (1989) for an explanation of limited circumstances where the state may vacate a motion to nolle prosequi in order to reinstate criminal charges.
State Can Refile After A Nolle Pros
The State is not be barred from proceeding on a refiled charge absent a showing of
- Bad faith or
- Fundamental unfairness.
See People v. Valenzuela, 180 Ill.App.3d 671, 675-76 (1989); see also People v. Overstreet, 64 Ill.App.3d 287, 289 (1978).
However, in order to reinstate the prosecution, the state must file a new charging instrument.
Speedy Trial Can’t Be Avoided
There is one other concern which can be added to the reasons for not allowing the prosecution to nolle-pros charges or prevent them from refiling after a nolle-pres.
The prosecution cannot be allowed to improperly manipulate criminal proceedings or to purposefully evade the operation of the speedy-trial statute. See People v. Woolsey, 139 Ill.2d 157 (1990), People v. Sanders, 86 Ill. App. 3d 457, 467 (1980).
Section 103-5 implements the constitutional right to a speedy trial and cannot be diminished through technical evasions.
Due Process Limitation On New Charges
Naturally, the statute of limitations imposes a limit on the length of time in which new charges may be filed.
However, the speedy-trial period stops running after a nolle prosequi unless there is evidence that the State sought to evade the statute through the use of the nolle prosequi. See People v. Totzke, 2012 IL App (2d) 110823, ¶ 24 (August).
If the nolle prosequi is taken in good faith, the constitutional speedy-trial guarantee does not apply during the period of time between the nolle prosequi and the new indictment.
During this period of time, the only constitutional safeguard that applies is due process. “To constitute a due process violation it must be shown that the delay between crime and arrest or charge caused substantial prejudice to the defendant’s right to a fair trial and that the delay was an intentional device to gain a tactical advantage over the accused.” Sanders, 86 Ill.App.3d at 472, 41 Ill.Dec. 453, 407 N.E.2d 951 (citing Marion, 404 U.S. at 323–34,
92 S.Ct. 455).
Both of these prongs—substantial prejudice and intentional tactical maneuvering by the State—must be established before a delay will be considered to violate due process.
Constitutional Speedy Trial Limitations On New Charges
Constitutional speedy-trial analysis applies to delays that occur after charges are brought. See Totzke, 2012 IL App (2d) 110823, ¶ 31.
A court will consider all of the time that has passed in both proceedings.
It is inappropriate to disregard the time elapsed during the first proceeding in considering the defendant’s speedy-trial arguments. See Totzke, 2012 IL App (2d) 110823, ¶ 31. If the time between a nolle prosequi and a later indictment is not counted because the defendant is not facing any criminal charge during that period, we cannot see why all of the time that the defendant is facing charges on the same matter should not be
Under Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182 (1972), four factors are considered when determining whether a defendant’s constitutional right to a speedy trial has been violated:
(1) The length of the delay;
(2) The reasons for the delay;
(3) The defendant’s assertion of his or her right; and
(4) The prejudice to the defendant as a result of the delay.
The threshold question is whether the delay is presumptively prejudicial. If the length of the delay is presumptively prejudicial, the court should balance the remaining three factors.