If I had a case dismissed “without prejudice”, how can I get that changed to “with prejudice”?

Asked on September 23, 2015 under Criminal Law


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

It would only be a "with prejudice" dismissal if 1 there was an adjudication or determination on the merits--i.e. the court looked at the facts and found that there was no good case against you 2 the statute of limitations, or time to bring charges, has expired or 3 there was some prosecutorial or police wrongdoing or overreaching such as an illegal search unlawfully withholding exculpatory evidence, or evidence showing your innocence, from you and your attorney and the court essentially sanctions, or punishes, the authorities for that by dismissing the case with prejudice. However, if the case were dismissed voluntarily by the authorities e.g. they decided they don't yet have the evidence to bring the case or due to some purely procedural problem e.g. some error in how the complaint was filled out, the it is properly a without prejudice dismissal.

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