View Full Version : What does "Disposition: Dismissal w/o prejudice" actually mean?
LuckyLuke
03-11-2009, 01:45 PM
For practical purposes of filling out employment applications, I am wondering if I have to include a case that has been determined on both counts, "Disposition: Dismissal w/o prejudice".
It is still a public record in Municipal Court, and can be found doing a search w/ my name, etc, however, because of the "Disposition: Dismissal w/o prejudice" do I have to include it in my application process when they ask if "Have you ever been convicted of or pled guilty, nolo contendre or plea bargained to a felony or misdemeanor?...Yes or No?"
As tight as the job market is and as picky as employers are, I feel like if I mention my misdemeanor charges from five years ago they will automatically look right past me. Can any one help me out? Wish I knew my rights, the courts, etc., a lot more clearly than I do now. Please, HELP!
sunbunny
03-11-2009, 01:52 PM
not sure of your "rights" but i know dismissal w/o prejudice means the case can be re-filed if new evidence comes to light that shows you should have not been dismissed. hope that makes sense! :seeya:
LuckyLuke
03-11-2009, 01:57 PM
To be more candid:
Can I, or Should I, answer NO to the question:
"Have you ever been convicted of or pled guilty, nolo contendre or plea bargained to a felony or misdemeanor?"
Thanks for your first reply sunbunny
mafitz701
03-11-2009, 02:17 PM
It is no you have never been CONVICTED of a crime. You were charged but never convicted.
LuckyLuke
03-11-2009, 02:49 PM
Wonderful, that is exactly what I needed to know. Thank you very much Mafitz
Jayne
03-11-2009, 10:53 PM
Luke...I agree with both Mafitz and Bratlings..they are both "correct" as I understand it from Human Resources, Legal aspects, etc.
Here's what I'd do...but it's no suggestion to you..just saying what I'd do (and I might not get hired!)...I'd reply NO..because the direct answer to the direct question is NO (Mafitz)..but I would "asterisk" it..and explain it below (Bratlings wise response)...
Just because a case is dismissed without prejudice does NOT mean you are or were guilty..it meant that the court or the prosecution ( you said it was criminal? ) dismissed most likely due to lack of evidence or improper pleading, etc. "at the time"..hence the "without prejudice". If it had been due to absolutely NO evidence, or the prosecution..essentially saying "this isn't worth it"..if they motioned to the judge and it was accepted it would with "with prejudice"..which is pretty much the same as one might think of "double jeopardy"..it is a "never can charge and try this person with this crime."
Usually "with prejudice" means the case was flawed on it's face, it was unable to be prosecuted at all or in civil actions...there was some settlement agreement and it was dismissed "forever".
jmo
J
To be more candid:
Can I, or Should I, answer NO to the question:
"Have you ever been convicted of or pled guilty, nolo contendre or plea bargained to a felony or misdemeanor?"
Thanks for your first reply sunbunny
It does not say have you ever been "arrested/charged".
So did you enter any plea listed before dismissal?
If you pled guilty, why would they dismiss it?
Some states prohibit certain phraseology when asking an applicant thier criminal record, so they ask in a way they can legally. If they did not ask if you have ever been arrested/cited just convicted, it may be they can not legally ask it.
I know the answer to this in IL is that if you are charged with a misdemeanor and receive supervision for 3,6,9 or 12 months it is not a conviction. So you could essentially plead guilty and not be convicted.
I don't know what state Luke is from, but yes, some states have what you describe, some type of deferred adjudication program/first offender program etc.
I don't know if such stays on the record as such or it is essentially treated as an expungement then and hid from public view?
Luke....I'm curious, how did this case begin? The reason I ask is because "Dismissal w/o prejudice" is an order a judge enters in a civil case not a criminal case.
warhorse46
03-12-2009, 10:47 AM
Luke....I'm curious, how did this case begin? The reason I ask is because "Dismissal w/o prejudice" is an order a judge enters in a civil case not a criminal case.
Happens in criminal cases too.
http://www.freecynthia.com/MOTION%20TO%20DISMISS%20WITH%20PREJUDICE%20-%20Memo%20that%20Ct%20has%20author.pdf
Felony criminal cases that the prosecutor wants to get rid of are either placed on the Dead Docket, which means they could be revived, or nolle prossed, which means they won't be revived.
WH...I can't get your link to work.
penguin01
03-12-2009, 01:00 PM
Luke...I agree with both Mafitz and Bratlings..they are both "correct" as I understand it from Human Resources, Legal aspects, etc.
Here's what I'd do...but it's no suggestion to you..just saying what I'd do (and I might not get hired!)...I'd reply NO..because the direct answer to the direct question is NO (Mafitz)..but I would "asterisk" it..and explain it below (Bratlings wise response)...
Just because a case is dismissed without prejudice does NOT mean you are or were guilty..it meant that the court or the prosecution ( you said it was criminal? ) dismissed most likely due to lack of evidence or improper pleading, etc. "at the time"..hence the "without prejudice". If it had been due to absolutely NO evidence, or the prosecution..essentially saying "this isn't worth it"..if they motioned to the judge and it was accepted it would with "with prejudice"..which is pretty much the same as one might think of "double jeopardy"..it is a "never can charge and try this person with this crime."
Usually "with prejudice" means the case was flawed on it's face, it was unable to be prosecuted at all or in civil actions...there was some settlement agreement and it was dismissed "forever".
jmo
J Clearly NO is the answer - but this is bothering LuckyLuke. After 5 years couldn't one apply to have this case expunged from your record? I mean - an employer may look it up and think that this issue may come up again and get in the way of the potential employees's job performance.
warhorse46
03-12-2009, 01:44 PM
Felony criminal cases that the prosecutor wants to get rid of are either placed on the Dead Docket, which means they could be revived, or nolle prossed, which means they won't be revived.
WH...I can't get your link to work.
Go here http://www.freecynthia.com/ & click on the link that says "Next Court Date:
Monday, May 4, 2009
: Motion to Dismiss With Prejudice :"
I have seen several criminal proceedings dismissed with or without prejudice on TTV.
WH...I think that is just a handle Cynthia Sommer's atty put on that motion because it seemed a good fit. It is NOT a term used in criminal courts.
I know the answer to this in IL is that if you are charged with a misdemeanor and receive supervision for 3,6,9 or 12 months it is not a conviction. So you could essentially plead guilty and not be convicted.
What IL statute covers that, if you don't mind.
warhorse46
03-13-2009, 02:18 PM
WH...I think that is just a handle Cynthia Sommer's atty put on that motion because it seemed a good fit. It is NOT a term used in criminal courts.
I have to disagree with you as I have heard it in criminal courts on CTV & TTV. In fact CTV was the first place I ever heard the phrase & had it explained to me. If you would read the motion the entire motion is having the charges dropped with prejudice, there is nothing else to it. It IS a term used in criminal courts. Maybe not in your area but it is used.
warhorse46
03-13-2009, 02:43 PM
WH...I think that is just a handle Cynthia Sommer's atty put on that motion because it seemed a good fit. It is NOT a term used in criminal courts.
http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+19.2-265.6
http://warofwits.org/2008/04/06/dismissed-with-prejudice/
http://www.answers.com/topic/dismissal
scroll down to criminal prosecutions
http://74.6.239.67/search/cache?ei=UTF-8&p=dismissal+with+prejudice+%22criminal%22&n=40&va_vt=any&vo_vt=any&ve_vt=any&vp_vt=any&vst=0&vf=all&vm=r&fl=0&fr=my-myy-s&u=www.wisbar.org/res/sup/2001p/00-0889.pdf&w=dismissal+prejudice+criminal&d=WufU2p2uSY6T&icp=1&.intl=us
Shells2
03-13-2009, 03:42 PM
For practical purposes of filling out employment applications, I am wondering if I have to include a case that has been determined on both counts, "Disposition: Dismissal w/o prejudice".
It is still a public record in Municipal Court, and can be found doing a search w/ my name, etc, however, because of the "Disposition: Dismissal w/o prejudice" do I have to include it in my application process when they ask if "Have you ever been convicted of or pled guilty, nolo contendre or plea bargained to a felony or misdemeanor?...Yes or No?"
As tight as the job market is and as picky as employers are, I feel like if I mention my misdemeanor charges from five years ago they will automatically look right past me. Can any one help me out? Wish I knew my rights, the courts, etc., a lot more clearly than I do now. Please, HELP!
If the question is exactly "Have you ever been convicted of or pled guilty, nolo contendre or plea bargained to a felony or misdemeanor?...Yes or No?" You are not lying when you state "NO" imo.
Your charges were basically dropped, with the understanding that should more evidence come to surface, they can be re-filed. Being charged does not make you convicted.
Jayne
03-13-2009, 09:54 PM
Luke....I'm curious, how did this case begin? The reason I ask is because "Dismissal w/o prejudice" is an order a judge enters in a civil case not a criminal case.
Actually, J.D. it does exist in criminal cases...you just don't hear about it that often because most cases are either outright dismissed, pled out, or go to trial, obviously (:))
I've seen it used in habeas corpus petitions/motions, particularly. In some states, the time limit for an indictment or probable cause hearing is so limited that the case may need to be "dismissed"..but not without the chance of it being re-opened when enough evidence (or the right evidence) is available. There are the statutes of limitations..not just civil, but criminal, as well...that must be complied with. Things can get lost "in the sewer" - that's my terminology..when things like this happen. If it has passed that time...there should be no problem..except that it likely is still on the court docket. And, that may well exonerate the person..because no evidence could come up to carry the case forward?
Not sure what is going on with Luke...I hope he gets it worked out. But when it comes to employment applications, it's best to be "upfront"..as one poster said a NO is a NO, however, the prospective employer may "pick up on something"..be nice enough to inquire of the prospective employee then explanations can be given. But, sometimes the employer is "turned off" by lack of total disclosure. It's a carp shoot, IMO.
Not giving an iota of advice here...I just hope it works out for Luke.
jmo
J
Jayne
03-13-2009, 09:59 PM
I believe that the question about an arrest can not be ask, just if you have ever been convited of a criminal offence, without violating your rights, but it may varry from state to state.
You are absolutely correct. It is Illegal to ask if ever arrested...it has to be a conviction. EEOC has very strict guidelines on this.
jmo
J
penguin01
03-14-2009, 01:10 PM
You are absolutely correct. It is Illegal to ask if ever arrested...it has to be a conviction. EEOC has very strict guidelines on this.
jmo
J OK so they don't ask if you were ever arrested. And he wasn't convicted so the answer would be NO to that.
BUT - the fact is that some people do thorough background checks (as Jayne said) - so they may see it anyway.... its public record. And they might wonder if something may come up about the case in the future. Or think that you should have said something about it.
IF the DA is really no longer interested at all (and feels that it won't come up again despite the "without predjudice" opening - would they not support having the record expunged entirely after 5 years? Surely its worth looking into. Or if not expunged would someone in the DA's office write a letter stating they no longer have any interest is persuing the person. This public record would worry me and I think it worries Luke.
I should have qualified my responses by saying my answers were based upon practicing criminal defense law only in the state of Georgia.
Jayne
03-15-2009, 03:14 PM
I should have qualified my responses by saying my answers were based upon practicing criminal defense law only in the state of Georgia.
J.D. don't worry about it...there are so many states, with so many laws..
I always like your posts..btw..
Jayne
J.D. don't worry about it...there are so many states, with so many laws..
I always like your posts..btw..
Jayne
Thanks, Jayne.
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Details
08-19-2009, 09:46 PM
You say No - with no qualifier.
They're asking the question it is legal to ask. Being charged is not allowed to be used against you. Don't even worry about it. Any background check would come up with convictions, and they are not likely to search all courthouses for your name.
gnm109
08-21-2009, 12:39 AM
WH...I think that is just a handle Cynthia Sommer's atty put on that motion because it seemed a good fit. It is NOT a term used in criminal courts.
Well, maybe not in your state but it's quite common in California. I've done numerous plea bargains and also obtained dismissals for my clients. Whenever I got a dismissal for whatever reason, I would always argue for a straight dismissal with prejudice on the record. Sometimes, I would be successful in getting the DA to agree to a "with prejudice", especially with the caseloads they handle. They figure that they'll always get another crack at the defendant "next time".
It's neither civil nor criminal, it's just "with or without prejudice" over here in California, anyway.
The way the question is posed, I would answer no, since you were never convicted. Merely being charged is different from a conviction.
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