THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMY R. SNELL, Defendant-Appellant, 357 Ill. App. 3d 491

JUSTICE TURNER delivered the opinion of the court: In May 2002, the State charged defendant, Jeremy R. Snell, with one count of unlawful possession of methamphetamine-manufacturing chemicals (count

I) and one count of unlawful possession of a controlled substance (count II). In August 2002, defendant pleaded guilty to count I and received a sentence of 30 months’ probation. In November 2002 and November 2003, the State filed a petition and a supplemental petition to revoke probation, respectively. Defendant filed a motion to dismiss, which the trial court denied. On appeal, defendant argues the trial court erred in denying his motion to dismiss the State’s supplemental petition to revoke probation on double-jeopardy grounds. We affirm. I.

BACKGROUND In May 2002, the State charged defendant by information with one count of unlawful possession of methamphetamine-manufacturing chemicals (720 ILCS 570/401(c — 5) (West 2002)) and one count of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2002)). In August 2002, defendant pleaded guilty to count I, and count II was dismissed. The trial court placed defendant on 30 months’ probation.

In November 2002, the State filed a petition to revoke probation, alleging, inter alia, defendant committed the offense of unlawfully transporting anhydrous ammonia in Clay County case No. 02 — CF— 62. In November 2003, the State filed a supplemental petition to revoke probation, alleging defendant committed the offense of unlawful transportation of anhydrous ammonia in an unapproved container (720 ILCS 5/21 — 1.5(b—5) (West 2002)) in Clay County on or about October 26, 2002.

Defendant filed a motion to dismiss, arguing Clay County case No. 02 — CF—62 had been dismissed with prejudice and he would be subject to double jeopardy if the State proceeded on the same facts of the Clay County case in its petition to revoke probation. Defendant also argued the State could not proceed on its petition based on the doctrines of res judicata and collateral estoppel. The record on appeal contains a transcript from the Clay County circuit court on July 7, 2003, in which the State moved to enter a nolle prosequi in case No. 02 — CF—62.

Clay County Judge John W McGuire acknowledged the cause was nol-prossed on the State’s motion and explained to defendant that the State could refile charges against him at any time during the statute of limitations. Defendant’s motion to dismiss also included a November 17, 2003, order entered by Judge McGuire in People v.

Snell, Clay County case No. 02 — CF—62, that read as follows: “This cause coming on to be heard, and the [cjourt, being fully advised in the premises, it is hereby ordered that [defendant’s case is [dismissed with [prejudice pursuant to 720 ILCS 5/3 — 4(a)(1).” In December 2003, the trial court conducted a hearing on defendant’s motion to dismiss. The court found the Clay County case was dismissed without any issues of fact or law determined. Thus, the court found double jeopardy did not apply and denied defendant’s motion.

Defendant sought to file an immediate appeal, but the court proceeded to hear the merits on the supplemental revocation petition. After the presentation of witnesses, the court found defendant had violated his probation and set the matter for sentencing. Defendant then filed a notice of appeal pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R. 604(f)), permitting interlocutory appeals following the denial of a motion to dismiss a criminal proceeding on grounds of former jeopardy. II.

ANALYSIS Defendant argues the trial court erred in denying his motion to dismiss the State’s supplemental petition to revoke probation on the ground of double jeopardy. We disagree. We find the Fifth District’s case in People v. Howell, 46 Ill. App. 3d 300, 360 N.E.2d 1212 (1977), to be instructive in this case. In Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1212, the defendant was convicted of burglary and sentenced to probation. During his probation term, the defendant was charged with misdemeanor theft, and the State later filed a petition to revoke probation. Howell, 46 Ill.

App. 3d at 301, 360 N.E.2d at 1212-13. When the defendant appeared for trial on the theft charge, the State moved to dismiss the complaint and a nolle prosequi was entered. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213. At the subsequent hearing on the petition to revoke probation, the trial court denied the defendant’s motion to dismiss based on double-jeopardy grounds. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213. The court then extended the defendant’s term of probation. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213.

On appeal, the Fifth District found the sole issue to be “whether the State is barred by the doctrines of double jeopardy and collateral estoppel from proceeding on a petition to revoke probation, grounded on the commission of a criminal offense, after a criminal complaint based on the same facts and phrased in the same language has been dismissed with prejudice.” Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213. The appellate court found the State could properly proceed in such a manner. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213.

Specifically, the Fifth District found the defendant had not been acquitted, and a nolle prosequi entered before jeopardy had attached did not preclude a subsequent prosecution for the same offense. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213. The court concluded jeopardy had not attached because “[n]o issues of fact or law were determined in the criminal proceeding; there was no guilty plea, no jurors or witnesses were sworn, and no evidence was heard.” Howell, 46 Ill. App. 3d at 301-02, 360 N.E.2d at 1213.

In the case sub judice, the Clay County case was nol-prossed in July 2003, and the trial court explained to defendant the charge could be refiled at a later time. The dismissal occurred without defendant being placed in jeopardy and without any factual determination of his guilt or innocence. There was no guilty plea, no jurors or witnesses were sworn, and no evidence was heard. Thus, jeopardy did not attach, and the State could proceed with the revocation proceeding. Defendant argues he is entitled to relief under People v. Creek, 94 Ill. 2d 526, 447 N.E.2d 330 (1983).

In that case, the supreme court held the defendant could not be prosecuted for reckless homicide because an assistant State’s Attorney had made a motion dismissing the cause with prejudice. Creek, 94 Ill. 2d at 528, 447 N.E.2d at 331. The court considered a dismissal with prejudice equivalent to a final adjudication on the merits and an acquittal. Creek, 94 Ill. 2d at 533, 447 N.E.2d at 333. Defendant contends Judge McGuire’s written order stating defendant’s case was dismissed with prejudice was equivalent to a final adjudication on the merits. On these facts, we disagree.

The July 2003 transcript from Clay County indicates case No. 02 — CF—62 was being nol-prossed. Judge McGuire then commented the State could refile charges. Thus, his statements indicate the case was dismissed without prejudice. The November 2003 order purported to dismiss defendant’s case with prejudice. However, the court at that time had no charge before it to dismiss. As the State did not refile the charge, the court had no authority to dismiss with prejudice, and the November 2003 order was void ab initio. See People v. Fako, 312 Ill.

App. 3d 313, 316, 726 N.E.2d 734, 738 (2000) (once the defendant’s misdemeanor ticket for driving with a revoked license was dismissed, no misdemeanor charge was pending, and the trial court had no jurisdiction over the dismissed charge); see also In re Marriage of Schlam, 271 Ill. App. 3d 788, 793, 648 N.E.2d 345, 348 (1995) (orders entered by a court lacking jurisdiction are void ab initio). In this case, the State’s July 2003 motion to nol-pros did not operate as a final adjudication on the merits or act as an acquittal and does not bar a subsequent revocation proceeding.

As Howell found double jeopardy and collateral estoppel do not bar the State from proceeding on a petition to revoke probation, the trial court did not err in denying defendant’s motion to dismiss. III. CONCLUSION For the reasons stated, we affirm the trial court’s judgment. Affirmed. MYERSCOUGH, J., concurs.