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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