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 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 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 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 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.”