What is the legal definition of nolle prosequi?

by Sami Azhari on July 10, 2010

Nolle Prosequi Illinois

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.”

A motion to nolle pros a case is a Latin term meaning roughly, ‘no more prosecution.’ When the prosecution decides to drop charges, it will make a motion to nolle prosequi the charges. The court then determines whether to grant or deny that motion to nolle pros.

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 (a Class 3 felony for great bodily harm). A savvy defendant could attempt to enter a plea of guilty to the misdemeanor offense and protect himself from the felony by double jeopardy. If the motion to enter a plea of guilty is made prior to State’s motion to nolle pros, then the court would apparently have to accept the guilty plea and sentence the defendant on the misdemeanor.

The other occasions in which a court would actually use the term “dismiss” would be where the charge was dismissed pursuant to a motion to dismiss for violation of the defendant’s right to a speedy trial. That would be a dismissal in the true sense of the word because the dismiss would occur regardless of the State’s inclination to drop or pursue the charges. A  motion to nolle pros, on the other hand, is a voluntary act on part of the prosecution.

One important consideration is that a nolle pros 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.

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