NOTE: The following content incorporates new material to explain changes to Illinois law with Public Act 101-223 (effective January 1, 2020) and Public Act 101-651 (effective August 7, 2020). After these acts became effective, there were new rules for aggravated battery offenses committed in places of religious worship.
Use of nolle prosequi
When a criminal case is dismissed in an Illinois court of law, the result can be somewhat disappointing for the defendant. The reason is, there is hardly ever a court document using the term “case dismissed.”
The dismissal of criminal charges takes place by way of a motion from the prosecution called, “nolle prosequi.” This is a Latin term that means, roughly, ‘no more prosecution.’
When the prosecution decides to drop charges, it will make a motion to nolle prosequi the case. The court then determines whether to grant or deny that motion . The law provides that the judge is supposed to rule on any other motions that are pending before granting or denying the motion to nolle prosequi.
In theory, a situation could arise where the defendant is charged with a misdemeanor offense of battery. But the State has knowledge that the victim suffered very serious injury that would qualify the offense as aggravated battery, which is a Class 3 felony for great bodily harm. Under new Illinois laws in 2020, battery committed in a place of worship – churches, synagogues, mosques, and other places used for religious purposes – is also considered aggravated battery and charged as a felony.
A savvy defendant could attempt to enter a plea of guilty to the misdemeanor offense to protect against felony charges by double jeopardy. If the motion to enter a plea of guilty is made prior to State’s motion to nolle prosequi, then the court would apparently have to accept the guilty plea and sentence the defendant on the misdemeanor charge.
Use of the term “dismiss”
The other occasions in which a court would actually use the term “dismiss” would be via a different motion. If the defendant does not receive a speedy trial, they could file a motion to dismiss the case entirely. That would be a dismissal in the true sense of the word, because it would occur regardless of the State’s inclination to drop or pursue the charges. A motion to nolle prosequi, on the other hand, is a voluntary act on part of the prosecution.
One important consideration is that a motion to nolle prosequi is the equivalent of a dismissal for purposes of expungement and sealing. A person who had a criminal case “nolle prossed,” and has no other arrests or convictions, should be eligible to have the record of that criminal case expunged by filing a petition in the circuit court where it took place.