People v. Gill

Filed 3/28/08 NO. 4-06-0907
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Macon County
JASON D. GILL, ) No. 06CF699
Defendant-Appellee. )
) Honorable
) Scott B. Diamond,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In May 2006, the State charged defendant, Jason D.
Gill, with predatory criminal sexual assault of a child (720 ILCS
5/12-14.1(a)(1) (West 2004)). In September 2006, defendant moved
to bar prosecution, arguing that the trial court's prior dis-
missal of the same offense in an earlier Macon County case barred
further prosecution. Following an October 2006 hearing, the
trial court granted defendant's motion.
The State appeals the trial court's granting of defen-
dant's motion, and we reverse and remand for further proceedings.
I. BACKGROUND
In March 2005, the State charged defendant in Macon
County case No. 05-CF-298 with predatory criminal sexual assault
of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). The informa-
tion alleged that "on or about April 2003," defendant, who was 17
years of age or older, committed an act of sexual penetration
with K.G., who was then under 13 years of age. The record shows
that K.G. was (1) four years old at the time of the offense and
(2) defendant's daughter.
In January 2006, defendant filed a motion to dismiss
or, alternatively, for a bill of particulars. The motion pro-
vided, in pertinent part, as follows: (1) K.G. had made state-
ments indicating that the alleged offense occurred in Decatur,
(2) defendant had confessed to sexually assaulting K.G. in Texas,
(3) the trial court should dismiss the case because it would have
jurisdiction only if the alleged incident occurred in Illinois,
(4) the State cannot prove jurisdiction beyond a reasonable
doubt, and (5) if the court declined to dismiss the case, the
State should be required to provide a bill of particulars.
In February 2006, the State filed a motion to dismiss
the charge against defendant, which stated, in pertinent part, as
follows: (1) K.G. reported that the alleged offense occurred at
her paternal grandparents' home, but she was unable to provide a
time frame as to when the sexual assault occurred; (2) the
paternal grandparents lived in Texas during 2003, and for part of
the time, K.G. and defendant lived with them; (3) defendant
confessed to sexually assaulting K.G. but stated that the offense
occurred in Portland, Texas, in April or May 2003; (4) K.G.'s
mother reported that she, defendant, and K.G. resided in Texas
between July 2003 and October 2003 and then lived in Macon
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County, Illinois, from October 2003 to April 2004; and (5) due to
K.G.'s age and her understandable inability to recall when the
offense occurred or where her grandparents lived at the time of
the offense, the State cannot prove beyond a reasonable doubt
that Illinois is the appropriate jurisdiction for prosecution.
That same day, without defendant's objection, the trial court (1)
granted the State's motion, (2) dismissed the case, and (3)
"discharged [defendant] from custody in this cause."
In May 2006, the grand jury indicted defendant herein
in Macon County case No. 06-CF-699 for predatory criminal sexual
assault of a child. The indictment was identical to the allega-
tions of the indictment in case No. 05-CF-298.
In September 2006, defendant filed a motion to bar
prosecution, arguing, in pertinent part, as follows: (1) the
State had previously charged defendant with the same offense in
case No. 05-CF-298; (2) case No. 05-CF-298 "was dismissed, as
opposed to nolle prossed [sic], on motion of the State[,] and at
the time of the dismissal[,] counsel for the State made the
admission in open court that the State could not prove jurisdic-
tion beyond a reasonable doubt"; and (3) based upon the princi-
ples of double jeopardy, collateral estoppel, and judicial
estoppel, the State was precluded from further prosecuting
defendant.
At an October 2006 hearing on defendant's motion to bar
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prosecution, the trial court took judicial notice of the motions
filed in Macon County case No. 05-CF-298. Defense counsel argued
that it would be unfair to categorize the State's motion to
dismiss in case No. 05-CF-298 "as some type of dismissal which
would allow refiling" when the motion was filed in the "face of a
case-dispositive motion." Counsel also pointed out that the
State could have nol-prossed the case or dismissed it with leave
to reinstate but did not.
In response, the prosecutor pointed out that (1) the
trial court had not dismissed case No. 05-CF-298 with prejudice
and (2) the State filed case No. 06-CF-699 after the State
obtained information it did not have when it filed the motion to
dismiss case No. 05-CF-298. The prosecutor also stated that (1)
the State moved to dismiss case No. 05-CF-298 because although
K.G. recalled that the assault occurred in her grandparents'
home, she could not remember when it occurred; (2) jurisdiction
was then uncertain because it was unclear whether the incident
occurred in Texas or Decatur, Illinois; (3) after the dismissal
of case No. 05-CF-298, K.G. was able to describe to police the
residence where the assault occurred; and (4) her description of
the residence matched the grandparents' Decatur residence.
After considering counsel's arguments, the trial court
granted defendant's motion to bar prosecution. In so doing, the
court noted that the State's motion to dismiss case No. 05-CF-298
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stated, "Wherefore the People pray the above cause is dismissed."
The court then observed:
"It clearly wasn't nolle prossed [sic]. It
clearly wasn't dismissed with leave to rein-
state. So I'm going to find that they dis-
missed it based on a factual finding. They
didn't feel they could prove the case beyond
a reasonable doubt, that they didn't have
jurisdiction in the case."
The State later filed its certificate of impairment,
and this appeal followed.
II. ANALYSIS
The State argues that the trial court erred by granting
defendant's motion to bar prosecution. In response, defendant
argues that the court's granting of his motion was proper.
Specifically, he contends--as he did below--that (1) the State's
February 2006 dismissal motion was not a motion to dismiss with
leave to reinstate and, instead, constituted a motion to dismiss
with prejudice; and (2) the State could have chosen to nol-pros
case No. 05-CF-298, but it did not. Because we conclude that
defendant's contentions have no merit, we agree with the State
that the court erred by granting defendant's motion to bar
prosecution.
A. State's Motion To Dismiss
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The determinative issue in this case is the effect of
the State's February 2006 motion to dismiss. Complicating
resolution of that issue is the terminology the trial court used
--namely, nolle prosequi and dismissal with leave to reinstate.
We discuss such pleadings below.
1. Nolle Prosequi
A prosecutor's motion to dismiss a charge would seem to
clearly convey not only the State's intention, but also what the
result of granting the State's motion would be. Nonetheless,
prosecutors sometimes instead make a nolle prosequi motion
regarding an indictment in a case. Such a motion, which is
rooted in English common law and dates back to the latter half of
the 1600s (People ex rel. Hoyne v. Newcomer, 284 Ill. 315, 320,
120 N.E. 244, 246 (1918)), has precisely the same effect as a
simple motion to dismiss. In People v. Norris, 214 Ill. 2d 92,
104, 824 N.E.2d 205, 213 (2005), our supreme court described a
nolle prosequi as follows:
"A nolle prosequi is a formal entry of
record by the prosecuting attorney which
denotes that he or she is unwilling to prose-
cute a case. 21 Am. Jur. 2d Criminal Law
§770 (1981). This court has recognized:
'"A nolle prosequi is not a final
disposition of the case, and will
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not bar another prosecution for the
same offense. It is not an acquit-
tal, but it is like a nonsuit or a
discontinuance in a civil suit, and
leaves the matter in the same con-
dition in which it was before the
commencement of the prosecution."
[Citation.] 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 wher-
ever 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 pros-
ecution for the same offense.'
People v. Watson, 394 Ill. 177,
179[, 68 N.E.2d 265, 266] (1946).
Thus, when a nolle prosequi is entered before
jeopardy attaches, the State is entitled to
refile the charges against the defendant.
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Watson, 394 Ill. at 179[, 68 N.E.2d at 266].
The State is not barred from proceeding upon
a refiled charge 'absent a showing of harass-
ment, bad faith, or fundamental unfairness.'
[Citation.]"
In addition, in People v. Daniels, 187 Ill. 2d 301, 312, 718
N.E.2d 149, 157 (1999), the supreme court wrote that "[a] motion
to nol-pros is comparable to a motion to dismiss."
Generally, the State has an absolute right to dismiss
or move to nol-pros a criminal case at any time. However, the
State must obtain the trial court's consent for a nolle prosequi,
and the court has discretion to review the State's request to
determine whether that action (1) is capriciously or vexatiously
repetitious or (2) will cause substantial prejudice to the
defendant, such as the State's effort to cause delay or avoid the
effect of the speedy-trial provisions of section 103-5 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/103-5 (West
2006)). People v. Castillo, 372 Ill. App. 3d 11, 17, 865 N.E.2d
208, 215 (2007).
2. Dismissal With Leave To Reinstate
A second form of a motion to dismiss that prosecutors
sometimes use is called a motion to strike (or dismiss) with
leave to reinstate. These motions to dismiss (or motions "SOL"
("stricken on leave") as they are commonly called in Cook County
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--the only county in Illinois that regularly seems to use such
motions) have been discussed in the context of a defendant who
raises a speedy-trial challenge because motions SOL can have a
different effect than a motion to dismiss. In Ferguson v. City
of Chicago, 213 Ill. 2d 94, 100, 820 N.E.2d 455, 459 (2004), the
supreme court discussed motions SOL as follows:
"An order striking a case with leave to
reinstate, while not provided for by any rule
or statute, is common practice in the circuit
court of Cook County. It is used almost
exclusively in criminal cases. [Citation.]
Where a case is stricken with leave to rein-
state, the matter remains undisposed of. The
same charges continue to lie against the
accused, albeit in a dormant state. [Cita-
tion.] The matter may still be placed on the
docket and brought to trial if there is a
subsequent motion to reinstate. [Citation.]
Accordingly, the courts of Illinois have
consistently recognized that the striking of
charges with leave to reinstate does not
terminate the proceedings against the ac-
cused. [Citations.] Indeed, our court has
expressly held that an SOL order excludes the
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conclusion that the case is at an end."
(Emphasis added.)
In People v. Daniels, 190 Ill. App. 3d 224, 226, 546
N.E.2d 645, 647 (1989), the First District explained that when a
charge has been stricken with leave to reinstate, the same charge
may later be reinstated. "In fact, the same charge continues to
lie against the accused and may be resurrected upon the State's
motion at any time." Daniels, 190 Ill. App. 3d at 226, 546
N.E.2d at 647. The Daniels court added the following:
"[U]nlike the SOL, the nolle prosequi re-
quires the institution of a new and separate
proceeding to prosecute a defendant for that
offense. [Citations.] After [the] nolle
prosequi is entered on the charge against a
defendant, that defendant is under no more
jeopardy than any other citizen." Daniels,
190 Ill. App. 3d at 226, 546 N.E.2d at 647.
B. Motion To Dismiss in This Case
Defendant suggests that the prosecutor should have
filed a motion for a nolle prosequi or a motion SOL. We dis-
agree.
As the supreme court noted in Ferguson, motions SOL are
a common practice in criminal proceedings in the circuit court of
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Cook County, and it is our fervent hope that this strange and
unnecessary practice will not seep out beyond that county's
borders. As the supreme court pointed out in Ferguson, motions
SOL are "not provided for by any rule or statute." Ferguson, 213
Ill. 2d at 100, 820 N.E.2d at 459. The absence of any such
authority should give pause to prosecutors who think using these
alternatives to a simple and straightforward "motion to dismiss"
is somehow justified or appropriate. Further, we note that if
101 other counties of the State of Illinois, comprising more than
50% of the State's population, can somehow deal with their
criminal cases without using motions SOL, then perhaps Cook
County prosecutors should rethink their use of the archaic
practice of motions SOL.
In addition, we do not view the instances in which the
Supreme Court of Illinois has been forced to construe the terms
"nolle prosequi" and "motion SOL" as somehow containing any
approval by that court that these terms should be used. Instead,
the court was merely deciding the cases before it. For instance,
at issue in Ferguson was the effect of having misdemeanor charges
dismissed (pursuant to a motion SOL) on a plaintiff who brought a
civil action against the City of Chicago for malicious prosecu-
tion. Thus, the supreme court had to determine whether the
motion SOL had the effect of terminating the case, and it deter-
mined that "charges stricken with leave remain pending." Fergu-
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son, 213 Ill. 2d at 102, 820 N.E.2d at 461. In support of our
view, we note that the supreme court recently quoted with ap-
proval a decision from the Seventh Circuit Court of Appeals as
follows: "'Lesson Number One in the study of law is that general
language in an opinion must not be ripped from its context to
make a rule far broader than the factual circumstances which
called forth the language.'" Rosewood Care Center, Inc. v.
Caterpillar, Inc., 226 Ill. 2d 559, 572, 877 N.E.2d 1091, 1098
(2007), quoting Federal Deposit Insurance Corp. v. O'Neil, 809 F.
2d 350, 354 (7th Cir. 1987).
As the foregoing discussion shows, both defense counsel
and the trial court were mistaken when they criticized the
prosecutor for simply moving to dismiss the charge, albeit with a
written explanation for why she chose to do so. The contentions
that the prosecutor should have instead filed a motion for a
nolle prosequi or made a motion SOL are wholly without merit.
Indeed, we commend the prosecutor for not using either of those
other terms, the use of which would have served only to obfuscate
the nature of the proceedings.
C. The Prosecutor's Written Explanation in the Motion To Dismiss
Below, the trial court and defense counsel attached
significance to the explanation the prosecutor provided in her
motion to dismiss for why the State was taking that action.
Under the particular circumstances of this case, we can under-
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stand why the prosecutor sought to provide this explanation.
Even if her doing so was unwise, nothing about that explanation
changed the nature of the State's motion to dismiss. Thus, in
February 2006, when the trial court granted the State's motion to
dismiss, defendant was no longer subject to any charge and was
free "'to go wherever he please[d].'" Norris, 214 Ill. 2d at
104, 824 N.E.2d at 213, quoting Watson, 394 Ill. at 179, 68
N.E.2d at 266. Accordingly, we deem the prosecutor's inclusion
of reasons for making her motion to dismiss to be without any
legal significance.
D. State Dismissals with Prejudice in Criminal Cases
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. People
v. Creek, 94 Ill. 2d 526, 531, 447 N.E.2d 330, 332 (1983). As
the supreme court explained in Creek, the term "with prejudice"
has
"a well-recognized legal import; it is the
converse of the term 'without prejudice' and
it is as conclusive of the rights of the
parties as if the suit had been prosecuted to
a final prosecution adverse to the
complaint.' [Citations.] While the phrase
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is not encountered in connection with
criminal proceedings as frequently as it may
be in civil matters, the meaning is the same
regardless of the context." Creek, 94 Ill.
2d at 531-32, 447 N.E.2d at 332-33.
In addition, in People v. Rudi, 103 Ill. 2d 216, 224, 469 N.E.2d
580, 584 (1984), the supreme court rejected a defendant's claim
that a subsequent prosecution against him should have been barred
on the ground of double jeopardy and wrote the following:
"No factual issues were resolved in favor of
the defendant, as they are when the case is
decided after the State has begun its
presentation of evidence [citation] or when
the State's Attorney acquiesces in an order
dismissing the charges against the defendant
with prejudice ([Creek, 94 Ill. 2d at 531,
447 N.E.2d at 332])." (Emphasis in
original.)
Thus, although Illinois law is clear that the State may
move to dismiss a case with prejudice, we still must determine
whether the State did so in this case.
E. The Trial Court's Decision
At the October 2006 hearing where the trial court
granted defendant's motion to bar prosecution, the court
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explained its ruling, in part, by first noting that the charge
against defendant "clearly wasn't nolle prossed [sic] *** [or]
dismissed with leave to reinstate." However, as previously
explained, these distinctions are meaningless and, in this case,
without substance. The State's motion to dismiss was all the
action the State needed to take to terminate the prosecution of
defendant in case No. 05-CF-298. That the State elected to
provide a written explanation for taking that action was legally
without significance. By making a motion to dismiss, the State
committed itself, at that time, to terminating defendant's
prosecution. Further, as discussed below, because the State's
motion to dismiss was not with prejudice, the State was free to
refile these charges (as it did) at any time before the
applicable statute of limitations would bar the State from
prosecuting defendant on these charges.
We note this latter point because it further
demonstrates the archaic silliness of a State's motion SOL,
seeking to dismiss charges with leave to reinstate, when the
State, had it merely dismissed the charges, could always
reinstate them by merely charging the defendant once again. As
noted, unless the motion to dismiss was with prejudice or the
statute of limitations had run, or--in the unusual case--the
trial court determined that the motion to dismiss was for the
purpose of circumscribing the defendant's speedy-trial rights, a
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defendant would have no basis to seek to dismiss the refiled
charges.
The trial court also explained its granting of
defendant's motion to bar prosecution by stating that it was
"going to find that [the State] dismissed it based on a factual
finding. [The State] did not feel [it] could prove the case
beyond a reasonable doubt, that [it] didn't have jurisdiction in
the case." This determination was wholly erroneous.
As the supreme court noted in Creek, 94 Ill. 2d at 532,
447 N.E.2d at 332-33, State motions to dismiss with prejudice are
not common. 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, and it is
taking that action (1) no matter how serious the crime may be or
(2) despite the fact that it might later discover strong evidence
of the defendant's guilt. As a matter of tactics, one is hard
pressed to see why the State would take such action, especially--
as here--in the absence of any agreement with defendant.
A trial court should never be permitted to infer the
State's intent to dismiss with prejudice, as the court did here.
The stakes are simply too great. Accordingly, we hold that
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
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does not constitute a dismissal with prejudice. Accordingly, we
conclude that the trial court erred by inferring that the State
intended to dismiss with prejudice.
F. Defendant's Groundless Motion To Dismiss
As a last matter, we address defendant's January 2006
motion to dismiss, in which he asserted that based upon the
discovery he had been provided, the State would not be able to
prove at trial that his sexual assault of his daughter occurred
in the State of Illinois. Based upon this assertion, defendant
claimed that (1) the trial court lacked jurisdiction and (2) the
case should be dismissed pursuant to section 144-1(a)(6) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/114-1(a)(6) (West
2004)). We choose to address this motion because defense counsel
argued at the October 2006 hearing on defendant's motion to bar
prosecution that it would be unfair to categorize the State's
motion to dismiss in case No. 05-CF-298 "as some type of
dismissal which would allow refiling" when that motion was filed
in the "face of a case-dispositive motion." Given that (1) the
court granted defendant's motion to bar prosecution and (2) not
much argument in support of the motion was presented by
defendant, we cannot be sure how much weight, if any, the court
gave to defendant's argument about the earlier "case-dispositive
motion." The court would have been mistaken to give any weight
whatsoever to that argument because defendant's motion was
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completely without merit.
Defendant's motion to dismiss mistakenly equated the
State's discovery information with the actual evidence to be
presented at trial. Then, asserting that the State had no
evidence to present beyond the discovery, defendant moved to
dismiss because the State's evidence would not have shown that
the alleged sexual assault occurred in Illinois. Such a claim
has no place in criminal proceedings.
Defendant's January 2006 motion essentially constituted
a motion for summary judgment in a criminal case. That is,
defendant asserted that based upon the State's discovery (akin
apparently to affidavits or other materials submitted in support
of a motion for summary judgment), no genuine issue of material
fact existed regarding an essential element of the State's case--
namely, that the alleged sexual assault of the victim occurred in
Illinois. Defendant contended that the State was unable to prove
this element. Further, because this is an essential element of
the State's case, defendant claimed to be entitled to summary
judgment (or, in this case, a dismissal) as a matter of law.
The short answer, of course, to defendant's motion is
that motions for summary judgment, or anything like them, do not
lie in criminal cases. Nor can the State's discovery responses
pursuant to Supreme Court Rule 412 (188 Ill. 2d R. 412) be
equated with materials described in Supreme Court Rule 191 (210
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Ill. 2d R. 191) that parties set forth in affidavits in support
of and in opposition to motions for summary judgment.
Under Illinois law, the proceeding in which the parties
in a criminal case are required to present the evidence they may
possess in support of their respective positions is called the
trial. At that point, the State is required to present whatever
evidence it possesses and chooses to set before the trier of fact
to prove the defendant's guilt beyond a reasonable doubt.
However, the State is never required prior to that stage of the
proceedings, like a civil plaintiff might be when confronted with
a defendant's motion for summary judgment, to demonstrate that it
is capable of proving the charge at trial. Instead, in a felony
case, once a trial court in a preliminary hearing or a grand jury
has determined that probable cause exists regarding a felony
charge against the defendant, that case may proceed to trial in
due course, and the State is not required to somehow justify its
intent to try the defendant by further demonstrating that it
possesses sufficient evidence to convict him at trial.
This court has previously rejected a trial court's
effort to somehow screen the sufficiency of the State's case to
determine whether the State should be permitted to bring the
defendant to trial, although the last time we did so, it was in a
misdemeanor case. In People v. Soliday, 313 Ill. App. 3d 338,
339, 729 N.E.2d 527, 528 (2000), the State charged the defendant
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with misdemeanor criminal damage to property, alleging that he
knowingly injured "a domestic animal of Champaign County
Rottweiler Rescue," without the consent of the owner. The
defendant subsequently filed a motion to dismiss, asserting that,
as a matter of law, he could not be found guilty of criminal
damage to property because the dog was his property and not "the
property of another" as required by section 21-1(1)(d) of the
Criminal Code of 1961 (720 ILCS 5/21-1(1)(d) (West 1998)). The
defendant attached to his motion a copy of a written agreement
between himself and the rescue organization, which obligated him
to satisfy various conditions related to the care of the dog.
The trial court granted the defendant's motion to dismiss, the
State appealed, and this court reversed. We explained, in part,
as follows:
"Defendant sought, and was granted,
dismissal of the State's charge based on
evidence he presented that [the rescue
organization] was not the owner of [the dog].
Such evidence, if deemed credible by the
trier of fact at trial [(emphasis in
original)], would defeat an element of the
charged offense ***.
* * *
*** [W]hen addressing a defendant's
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motion to dismiss a charge under section 114-
1(a)(8), a trial court is strictly limited to
assessing the legal sufficiency of the
indictment, information, or criminal
complaint and may not evaluate the evidence
the parties might present at trial."
(Emphases added unless otherwise noted.)
Soliday, 313 Ill. App. 3d at 341-42, 729
N.E.2d at 529-30.
We noted in Soliday that the State's Attorney is empowered to
bring those charges he or she deems appropriate and is afforded
considerable discretion in doing so. Soliday, 313 Ill. App. 3d
at 344, 729 N.E.2d at 531. We thus concluded as follows:
"[N]either a trial court nor an appellate court can evaluate the
evidence that the parties might present at trial when determining
whether dismissal under section 114-1(a)(8) of the [Code of
Criminal Procedure of 1963] is appropriate. Because the trial
court in this case violated this principle, we reverse its
dismissal." (Emphasis added.) Soliday, 313 Ill. App. 3d at
343, 729 N.E.2d at 531.
Soliday applies fully to this case. Just as the trial
court in Soliday erred by dismissing the charge under section
114-1(a)(8) of the Code of Criminal Procedure of 1963, so would
the trial court here have erred had it granted defendant's motion
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under section 114-1(a)(6) on the ground that the State would not
be able to present evidence at trial showing that the case was
properly being prosecuted in Illinois.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for proceedings consistent with the views
expressed herein.
Reversed and remanded.
McCULLOUGH, J., concurs.
COOK, J., specially concurs.
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JUSTICE COOK, specially concurring:
I concur in the decision to reverse and remand.
On March 1, 2005, defendant was charged with predatory
criminal sexual assault of a child, in Macon County case No. 05-
CF-298. After defendant filed a motion to dismiss for lack of
jurisdiction, the State moved to dismiss on the grounds it could
not prove that Illinois is the appropriate jurisdiction for
prosecution. The court granted the State's motion and dismissed
the charge and discharged defendant from custody. Three months
later, defendant was indicted on the same charge in Macon County
case No. 06-CF-699. Defendant moved to dismiss the indictment,
now alleging that the previous dismissal barred further
prosecution.
Although it does not happen very often, the State may
dismiss a criminal prosecution "with prejudice." Creek, 94 Ill.
2d at 532, 447 N.E.2d at 332-33. It is not required that the
words "with prejudice" be included in the motion to dismiss, only
that there be "an intention to terminate the proceedings in
defendant's favor in such a way as to bar further action."
Creek, 94 Ill. 2d at 533, 447 N.E.2d at 333. The dismissal of
the reckless-homicide charge "with prejudice" in Creek was
apparently the result of a prosecutorial mistake, motivated by
the prosecutor's desire to take the matter to a grand jury. A
driving-while-intoxicated charge had been dismissed earlier but
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was not dismissed with prejudice. That charge was allowed to go
forward. Creek, 94 Ill. 2d at 534, 447 N.E.2d at 333-34.
When a criminal case is "dismissed," the dismissal may
be with prejudice or without prejudice. Some dismissals under
section 114-1 are with prejudice; others are not. 725 ILCS
5/114-1(e) (West 2006). Addition of the language "with
prejudice" or "with leave to reinstate" helps make it clear what
the dismissal was intended to be. The trial court may resolve
facts on a section 114-1 motion to dismiss. The State must file
an answer when a defendant's motion alleges facts not of record;
a hearing must be held if an issue of fact is presented. 725
ILCS 5/114-1(a)(6), (d) (West 2006). If defendant here had filed
a second motion to dismiss for lack of jurisdiction, the trial
court would have resolved that motion on the facts.
A trial court has inherent authority to dismiss an
indictment for reasons other than those listed in section 114-
1(a), including when the failure to do so will effect a
deprivation of due process or result in a miscarriage of justice.
People v. Newberry, 166 Ill. 2d 310, 313-14, 652 N.E.2d 288, 290
(1995) (State destruction of evidence). The dismissal in
Newberry was with prejudice, even though it did not use those
words. A case may be dismissed with prejudice on double jeopardy
grounds although that reason is not listed in section 114-1(a).
The dismissal in this case was not a section 114-1
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dismissal. It was a dismissal on motion by the State. The first
question we must consider is what the State or the court
intended. A trial court order is to be interpreted in its
entirety, taking into consideration other parts of the record,
including the pleadings, the motions before the court, and the
issues to be decided. People v. Ryan, 259 Ill. App. 3d 611, 613,
631 N.E.2d 348, 351 (1994). In Creek, the prosecutor's
"purposeful inclusion of the phrase 'with prejudice' in her
motion to dismiss, coupled with the signed approval of both
parties," showed an intent to dismiss with prejudice. Creek, 94
Ill. 2d at 533, 447 N.E.2d at 333. We do not have that in this
case. The record does not disclose any reason why the prosecutor
would attempt a dismissal with prejudice. This was not a case,
for example, where there was an agreement that the case would be
dismissed if defendant testified in another case.
The second question we must address is whether,
regardless of what the State intended, the dismissal must be
considered to be with prejudice. Even a nolle prosequi can
amount to an acquittal and a bar to prosecution, if it occurs
after jeopardy has attached. People v. Murray, 306 Ill. App. 3d
280, 283, 713 N.E.2d 814, 817 (1999) (State's motion for
continuance on day of trial denied; subsequent dismissal for want
of prosecution held to be without prejudice). Jeopardy, however,
does not attach until a trial on the merits begins with either
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the swearing of the jury in a jury trial or the swearing of the
first witness in a bench trial. Preliminary proceedings heard on
motions before trial do not place a defendant in jeopardy.
People v. Jaudon, 307 Ill. App. 3d 427, 440-41, 718 N.E.2d 647,
658 (1999). Res judicata also requires a final judgment on the
merits. Creek, 94 Ill. 2d at 533, 447 N.E.2d at 333. Judicial
estoppel is not a concern here because the State did not take
inconsistent positions or receive a benefit therefrom. See
People v. Caballero, 206 Ill. 2d 65, 80, 794 N.E.2d 251, 262
(2002). The State did not take the position that Illinois did
not have jurisdiction, only that it did not then have sufficient
evidence to prove jurisdiction.
Although this was not a dismissal under section 114-1,
section 114-1 specifically provides that a dismissal because the
court does not have jurisdiction is not a dismissal with
prejudice. 725 ILCS 5/114-1(a)(6), (e) (West 2006). In the
federal courts, a finding of lack of venue after trial has begun
is not a resolution of the merits. "Venue is wholly neutral; it
is a question of procedure, more than anything else, and it does
not either prove or disprove the guilt of the accused." Wilkett
v. United States, 655 F.2d 1007, 1011 (10th Cir. 1981). An order
dismissing a case because of defects in an indictment, even after
trial began, had nothing to do with the merits of the case, and
accordingly did not indicate that the dismissal was with
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prejudice. Ryan, 259 Ill. App. 3d at 614, 631 N.E.2d at 351.
The dismissal for jurisdictional reasons here, before jeopardy
attached, had nothing to do with the merits of the case and was
not with prejudice.
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