What is a “Nolle Prosequi”?
The term “nolle prosequi” comes from the Latin phrase meaning “unwilling to pursue.” Pronounced as nol·le pros·e·qui (nälē ˈpräsəˌkwē), the term is sometimes abbreviated as “nolle prosse” or “no pross.”
The court might also use the term “nol prossed” or “nolle prossed.”
Under common law in the United States, the term was used by the prosecutor to declare the voluntary ending of a criminal case after the filing of formal charges but before the case could be dismissed by the court or a verdict could be rendered at trial.
On the other hand, if the prosecutor declines to file any formal charges, then the termination of the case after an arrest is accomplished by the filing of a “no file” form without the need for a nolle prosequi.
Is “nolle prosequi” a good thing? Yes, the “nolle prosequi” is good because it represents the formal notice of abandonment of the prosecution without a conviction.
In addition to an entry of a nolle prosequi, the other ways in which a criminal case might be terminated in a favorable way for the defense include:
- a “no file” decision after the arrest but before the filing of any formal charge;
- an order of dismissal reflecting an affirmative decision not to prosecute;
- a dismissal by the judge based on insufficient evidence, the running of the statute of limitations, or a speedy trial issue;
- a judgment of acquittal (JOA) at trial;
- an acquittal at trial by virtue of a “not guilty” verdict;
- a granted writ of habeas corpus.
Attorney to Expunge the “Nolle Prosequi” Record
People often ask whether they have a criminal record if the prosecution was terminated with a “nolle prosequi.” The short answer is that the “nolle prosequi” is a public record that might show up in a background check.
The nolle prosequi is unlikely to interfere with you getting a job since it means the underlying prosecution was terminated without a conviction.
In Florida, the nolle prosequi does NOT automatically result in the criminal history record being sealed or expunged. Instead, a person must take affirmative action to obtain a court-ordered expunction of the criminal history record.
The expunction of the criminal history record is the only way to make sure the mug shot, police report, and docket are not a public record that would show up in a background check.
Contact an attorney at Sammis Law Firm for more information on how to seal or expunge a criminal record after a nolle prosequi.
For any criminal record in Florida, our attorneys charge $950 in attorney fees plus the costs that must be paid to any third parties (including the $75 application fee to FDLE).
Is a Dismissal Better Than a Nolle Prosse?
An outright dismissal of the charge might be better than a nolle prosequi. When the case is dismissed by the judge on an involuntary basis with prejudice, then the prosecutor is typically prohibited from refiling the charge.
For this reason, it might be advantageous for the defense attorney to object to the entry of the “nolle prosequi” and instead request that the court enter an involuntary dismissal.
Although it would be rare that the prosecutor would refile the charge. The law might also prohibit the refiling of the charge after entering a nolle prosequi, particularly if the refiling would violate the speedy trial rule or the statute of limitations.
Why the Prosecutor Might Enter a “Nolle Prosse”?
Why would a prosecutor file formal charges only to later enter a “nolle prosse”? The prosecutor might decide to drop the charges for any of the following reasons:
- the successful completion of a pre-trial diversion program;
- realizing that insufficient evidence supports the charges;
- finding out a witness is unavailable or waivers; or
- learning that the witness filed a request not to prosecute.
If a person completes a pretrial intervention program (PTI) or misdemeanor intervention program (MIP), then an assistant state attorney with the State Attorney’s Office will file a “notice of administrative nolle prosequi.”
Additionally, the State Attorney’s Office might enter an administrative nolle prosequi in Florida “due to the age of the case.”
When the administrative nolle prosequi is filed with the clerk of court, it triggers a process to recall any outstanding warrant or capias.
Hiring a criminal justice lawyer quickly after an accusation or arrest remains one of the most effective ways to defend yourself.
By fighting the charges, the criminal defense attorney might convince the prosecutor to enter the nolle prosse.
Impact of the Nolle Prosequi on Speedy Trial in Florida
Under Florida law, a nolle prosequi is “self-executing upon its announcement and immediately terminates the proceeding.” State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008). Additionally, “no approval of the trial court is required.” Id.
Pursuant to Rule 3.191(o), the intent and effect of Florida’s speedy trial rule:
“…shall not be avoided by the state by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.”
Difference Between a Nolle Prosse and an Acquittal
While the prosecutor triggers a nolle prosse, an “acquittal” is a decision by a court or a jury in favor of the defendant.
An acquittal “actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Smith v. Massachusetts, 543 U.S. 462, 468, 125 S. Ct. 1129, 160 L. Ed. 2d 914 (2005).
Under Florida law, a nolle prosequi is “self-executing upon its announcement and immediately terminates the proceeding.” State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008). Under most circumstances, “[n]o approval of the trial court is required.” Id.
Nolle Prosequi in Federal Cases under Rule 48 FRCRP
In federal court, the prosecutor must seek leave of the court before dismissing a case by filing a nolle prosequi as required by Rule 48 of the United States Federal Rules of Criminal Procedure (FRCRP).
The advisory committee notes for FRCRP Rule 48 explain the differences between the rule and common law as follows:
….The common-law rule that the public prosecutor may enter a nolle prosequi in his discretion, without any action by the court, prevails in the Federal courts, Confiscation Cases, 7 Wall. 454, 457; United States v. Woody, 2 F.2d 262 (D.Mont.).
This provision will permit the filing of a nolle prosequi only by leave of court. This is similar to the rule now prevailing in many States. A.L.I. Code of Criminal Procedure, Commentaries, pp. 895–897.
In federal court, the Attorney General supervises the filing of a nolle prosequi by United States attorneys on an administrative basis.
The rule continues the common law tradition of allowing the defendant to object to the entry of a nolle prosequi and insist on the court making a disposition on the merits after the trial has commenced. See also Confiscation Cases, 7 Wall. 454–457; United States v. Shoemaker, 27 Fed. Cases No. 16, 279 (C.C.Ill.).
This article was last updated on Monday, January 9, 2023.