dissenting:
Aside from the difficulty I have in approving of the unusual remedy fashioned by the majority, I believe the court reaches an incorrect result in concluding that the addition of the words “with prejudice” to a dismissal prior to trial somehow has the effect of placing the defendant in former jeopardy. I would note that we are not here dealing with any claimed denial of a speedy trial or prosecution under either statutory or constitutional principles.
It seems to me that the expression “with prejudice” is a stranger to the criminal law, and conjoining this expression to the dismissal of a criminal charge is meaningless by itself and does not render a dismissal order an acquittal.
Section 3 — 4(a) of the Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 3 — 4(a)) provides, as here applicable:
“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or
(3) Was terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court.
It is apparent that the refiling of the reckless homicide charge and subsequent trial were not barred under this section. The majority acknowledges, citing the recent supreme court opinion in People v. Shields (1979), 76 Ill. 2d 543, 394 N.E.2d 1161, cert. denied (1980), 445 U.S. 917, 63 L. Ed. 2d 602, 100 S. Ct. 1279, that a dismissal, or nolle prosequi, does not bar a subsequent indictment and trial for the same offense. (People v. Dellecarto (1978), 67 Ill. App. 3d 490, 384 N.E.2d 902.) The supreme court has recently reaffirmed that the prohibition against placing an individual in double jeopardy is premised on the idea that the State should not be permitted to make repeated attempts to convict an individual. (People v. Deems (1980), 81 Ill. 2d 384, 410 N.E.2d 8.) In Deems, the court stated that a sham “acquittal” was not an acquittal for purposes of double jeopardy and that jeopardy does not attach until the defendant is subjected to the “risk of a determination of guilt” in a trial where an attempt is made to convict the defendant. Serfass v. United States (1975), 420 U.S. 377, 391-92, 43 L. Ed. 2d 265, 276, 95 S. Ct. 1055, 1064.
Contrary to the majority’s assertion, the consequence of the term “with prejudice” does change from a civil proceeding to a criminal prosecution and the citation of authority in the majority opinion to the contrary is not persuasive.
In People v. Newell (1980), 83 Ill. App. 3d 133, 403 N.E.Sd 775, the trial court dismissed a complaint charging an offense which had been previously dismissed. The State did not appeal but later reindicted the defendant for the same offense. The holding of the appellate court would appear to be premised not on double jeopardy but on principles of res judicata brought into play when the State failed to appeal the initial ruling of the trial court dismissing the complaint. Spriggs v. United States (9th Cir. 1955), 225 F.2d 865, discussed dismissal “with prejudice” in dicta only. Thus, neither Newell nor Spriggs deals with the legal significance of a purported dismissal with prejudice. White v. United States (D.C. Cir. 1967), 377 F.2d 948, cryptically relies on United States v. Oppenheimer (1916), 242 U.S. 85, 61 L. Ed. 161, 37 S. Ct. 68, as authority for the significance of a dismissal with prejudice, improperly, I suggest, as Oppenheimer dealt with a reindictment after the running of the statute of limitations.