When a judge dismisses pending criminal charges, the case is either dismissed with prejudice or dismissed without prejudice. The character of the dismissal makes a significant difference to both the defendant and the prosecutor.
Dismissal of a criminal case may occur before, during, or after trial. It may be the result of a motion to dismiss by the prosecutor or by the defendant, or due to a determination made by the court without a motion from either party.
In the dismissal context, the term prejudice refers to whether the court has made a final determination on the case. The prejudice relates to the prosecutor’s ability to pursue the charges in another subsequent proceeding.
A dismissal with prejudice means that the ruling is the final judgment in the case. The dismissal prohibits the prosecutor from refiling the charges. In a dismissal without prejudice, the prosecutor can refile the charges (or file new charges based on the same circumstances) at some future time.
A dismissal with prejudice is much more desirable for the defendant than dismissal without prejudice. When a criminal case is dismissed with prejudice, the prosecutor cannot file new charges or reopen the case. The dismissal permanently ends the case in the defendant’s favor. The prosecutor’s only option for continuing the case is to appeal the dismissal ruling to a higher court, which may happen if the prosecutor disagrees with the judge’s decision.
If a criminal case is dismissed with prejudice, it often is because there was a fundamental violation of the defendant’s constitutional rights that cannot be corrected. For example, an arrest without probable cause, violation of the right to a speedy trial, or an illegal search can lead to a case being dismissed with prejudice.
Other errors in a case also may lead a court to dismiss a case with prejudice. Dismissal with prejudice also may occur for other reasons, such as a defendant who enters and successfully completes a local diversion program.
When dismissal with prejudice occurs, it likely is the result of the defendant’s motion to dismiss, or the court’s own decision to order the dismissal. A prosecutor rarely initiates a request for dismissal with prejudice.
A prosecutor may request a dismissal without prejudice, so they can refile charges in the future. Dismissal without prejudice is only temporary, so it is less favorable for the defendant. A court also may dismiss a case without prejudice on its own, when there is an issue in the case that needs to be addressed by the prosecutor.
A prosecutor may request dismissal without prejudice for many reasons. In some cases, the prosecutor wants additional time to pursue leads or gather new evidence. In other situations, the prosecutor may request dismissal without prejudice so they can pursue different charges against the defendant.
While a dismissal without prejudice allows the prosecutor to refile charges, there will be some cases in which no more charges are filed. For example, if the statute of limitations on the criminal charge expires or the investigators cannot find additional evidence to resolve the issue that led to dismissal, the prosecutor may not file new charges.
The possibility of resolving criminal charges through dismissal with prejudice is one of the important reasons why legal representation in a criminal case is essential. If you are charged with a crime, your lawyer assesses the facts and charges to determine whether there is a basis for trying to get the case dismissed with prejudice. If there is, your attorney will make a motion to dismiss and argue that there is a legal basis for that type of dismissal.
When either side files a motion to dismiss, the court may hold a hearing on the motion to gather information related to the request, if the evidence is not already on the record. If your attorney files the motion, they have the opportunity to convince the court that the case should be dismissed with prejudice. If the prosecutor asks to dismiss the case without prejudice, your lawyer may argue that the dismissal should be with prejudice instead.
To support a motion to dismiss with prejudice, your lawyer presents facts and legal arguments to demonstrate to the judge that the prosecutor’s case is fatally flawed. If your attorney succeeds in convincing the court that the case should be dismissed with prejudice, your case could end permanently as the result of the motion.
The two types of dismissal apply to both federal and state criminal charges. So regardless of where the charges are filed, the possibility of dismissal with prejudice exists.
Our team of criminal defense attorneys at Sloan Law Firm takes pride in their experience, knowledge, and skill in matters of criminal law. We aggressively and relentlessly pursue your case to find the best resolution, including the possibility of dismissal with prejudice. We represent clients for all types of federal and state criminal charges in Kansas. If you were arrested or are under investigation or being questioned by police, please contact us to discuss your situation.
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