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 unlawfulpossession of a controlled substance (count II). In August 2002,defendant pleaded guilty to count I and received a sentence of 30months' probation. In November 2002 and November 2003, the Statefiled a petition and a supplemental petition to revoke probation,respectively. Defendant filed a motion to dismiss, which thetrial court denied.

On appeal, defendant argues the trial court erred indenying his motion to dismiss the State's supplemental petitionto revoke probation on double-jeopardy grounds. We affirm.

I. BACKGROUND

In May 2002, the State charged defendant by informationwith one count of unlawful possession of methamphetamine-manufacturing chemicals (720 ILCS 570/401(c-5) (West 2002)) and onecount of unlawful possession of a controlled substance (720 ILCS570/402(c) (West 2002)). In August 2002, defendant pleadedguilty to count I, and count II was dismissed. The trial courtplaced defendant on 30 months' probation.

In November 2002, the State filed a petition to revokeprobation, alleging, inter alia, defendant committed the offenseof unlawfully transporting anhydrous ammonia in Clay County caseNo. 02-CF-62. In November 2003, the State filed a supplementalpetition to revoke probation, alleging defendant committed theoffense of unlawful transportation of anhydrous ammonia in anunapproved container (720 ILCS 5/21-1.5(b-5) (West 2002)) in ClayCounty on or about October 26, 2002.

Defendant filed a motion to dismiss, arguing ClayCounty case No. 02-CF-62 had been dismissed with prejudice and hewould be subject to double jeopardy if the State proceeded on thesame facts of the Clay County case in its petition to revokeprobation. Defendant also argued the State could not proceed onits petition based on the doctrines of res judicata and collateral estoppel. The record on appeal contains a transcript fromthe Clay County circuit court on July 7, 2003, in which the Statemoved to enter a nolle prosequi in case No. 02-CF-62. ClayCounty Judge John W. McGuire acknowledged the cause was nol-prossed on the State's motion and explained to defendant that theState could refile charges against him at any time during thestatute of limitations. Defendant's motion to dismiss alsoincluded a November 17, 2003, order entered by Judge McGuire inPeople v. Snell, Clay County case No. 02-CF-62, that read asfollows:

"This cause coming on to be heard, andthe [c]ourt, being fully advised in the premises, it is hereby ordered that [d]efendant's case is [d]ismissed with [p]rejudicepursuant to 720 ILCS 5/3-4(a)(1)."

In December 2003, the trial court conducted a hearingon defendant's motion to dismiss. The court found the ClayCounty case was dismissed without any issues of fact or lawdetermined. Thus, the court found double jeopardy did not applyand denied defendant's motion. Defendant sought to file animmediate appeal, but the court proceeded to hear the merits onthe supplemental revocation petition. After the presentation ofwitnesses, the court found defendant had violated his probationand set the matter for sentencing. Defendant then filed a noticeof appeal pursuant to Supreme Court Rule 604(f) (188 Ill. 2d R.604(f)), permitting interlocutory appeals following the denial ofa motion to dismiss a criminal proceeding on grounds of formerjeopardy.

II. ANALYSIS

Defendant argues the trial court erred in denying hismotion to dismiss the State's supplemental petition to revokeprobation 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 inthis case. In Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at1212, the defendant was convicted of burglary and sentenced toprobation. During his probation term, the defendant was chargedwith misdemeanor theft, and the State later filed a petition torevoke probation. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at1212-13. When the defendant appeared for trial on the theftcharge, the State moved to dismiss the complaint and a nolleprosequi was entered. Howell, 46 Ill. App. 3d at 301, 360 N.E.2dat 1213. At the subsequent hearing on the petition to revokeprobation, the trial court denied the defendant's motion todismiss based on double-jeopardy grounds. Howell, 46 Ill. App.3d at 301, 360 N.E.2d at 1213. The court then extended thedefendant'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 tobe "whether the State is barred by the doctrines of doublejeopardy and collateral estoppel from proceeding on a petition torevoke probation, grounded on the commission of a criminaloffense, after a criminal complaint based on the same facts andphrased 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 amanner. Howell, 46 Ill. App. 3d at 301, 360 N.E.2d at 1213.

Specifically, the Fifth District found the defendanthad not been acquitted, and a nolle prosequi entered beforejeopardy had attached did not preclude a subsequent prosecutionfor the same offense. Howell, 46 Ill. App. 3d at 301, 360 N.E.2dat 1213. The court concluded jeopardy had not attached because"[n]o issues of fact or law were determined in the criminalproceeding; there was no guilty plea, no jurors or witnesses weresworn, and no evidence was heard." Howell, 46 Ill. App. 3d at301-02, 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 defendantthe charge could be refiled at a later time. The dismissaloccurred without defendant being placed in jeopardy and withoutany factual determination of his guilt or innocence. There wasno guilty plea, no jurors or witnesses were sworn, and no evidence was heard. Thus, jeopardy did not attach, and the Statecould proceed with the revocation proceeding.

Defendant argues he is entitled to relief under Peoplev. Creek, 94 Ill. 2d 526, 447 N.E.2d 330 (1983). In that case,the supreme court held the defendant could not be prosecuted forreckless homicide because an assistant State's Attorney had madea motion dismissing the cause with prejudice. Creek, 94 Ill. 2dat 528, 447 N.E.2d at 331. The court considered a dismissal withprejudice equivalent to a final adjudication on the merits and anacquittal. Creek, 94 Ill. 2d at 533, 447 N.E.2d at 333. Defendant contends Judge McGuire's written order stating defendant'scase was dismissed with prejudice was equivalent to a finaladjudication on the merits. On these facts, we disagree.

The July 2003 transcript from Clay County indicatescase No. 02-CF-62 was being nol-prossed. Judge McGuire thencommented the State could refile charges. Thus, his statementsindicate the case was dismissed without prejudice. The November2003 order purported to dismiss defendant's case with prejudice. However, the court at that time had no charge before it todismiss. As the State did not refile the charge, the court hadno authority to dismiss with prejudice, and the November 2003order was void ab initio. See People v. Fako, 312 Ill. App. 3d313, 316, 726 N.E.2d 734, 738 (2000) (once the defendant'smisdemeanor ticket for driving with a revoked license was dismissed, no misdemeanor charge was pending, and the trial courthad no jurisdiction over the dismissed charge); see also In reMarriage of Schlam, 271 Ill. App. 3d 788, 793, 648 N.E.2d 345,348 (1995) (orders entered by a court lacking jurisdiction arevoid ab initio).

In this case, the State's July 2003 motion to nol-prosdid not operate as a final adjudication on the merits or act asan acquittal and does not bar a subsequent revocation proceeding. As Howell found double jeopardy and collateral estoppel do notbar the State from proceeding on a petition to revoke probation,the trial court did not err in denying defendant's motion todismiss.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

MYERSCOUGH, J., concurs.

STEIGMANN, J., dissents.

JUSTICE STEIGMANN, dissenting:

Because I believe the trial court erred by denyingdefendant's motion to dismiss the State's supplemental petitionto revoke probation on double-jeopardy grounds, I respectfullydissent.

The majority finds Howell to be instructive, but I donot. Indeed, I doubt that the Fifth District Appellate Court inHowell even correctly stated the facts of the case before it onappeal.

In Howell, the defendant was convicted of burglary andplaced on two years' probation. During his term of probation,the State filed a criminal charge of theft against him. TheState later filed a petition to revoke his probation, allegingthat the defendant had violated the terms of his probation bycommitting the same theft offense. The Howell court then wrotethe following:

"When defendant appeared ready for trial onthe theft charge, the State moved to dismissthe complaint, and a nolle prosequi was entered over defendant's objection. At thesubsequent hearing on the petition to revokeprobation, the court denied defendant's motion to dismiss based on double[-]jeopardygrounds." Howell, 46 Ill. App. 3d at 301,360 N.E.2d at 1213.

The foregoing description of events is hardly remarkable, andnothing about it suggests that (1) the State would have moved fordismissal with prejudice or (2) the trial court would haveordered the dismissal to be with prejudice. Yet, in the verynext paragraph, the Howell court wrote the following:

"The sole issue raised by defendant onthis appeal is whether the State is barred bythe doctrines of double jeopardy and collateral estoppel from proceeding on a petitionto revoke probation, grounded on the commission of a criminal offense, after a criminalcomplaint based on the same facts and phrasedin the same language has been dismissed withprejudice." (Emphasis added.) Howell, 46Ill. App. 3d at 301, 360 N.E.2d at 1213.

The Howell court provided no explanation for its use ofthe phrase "with prejudice," and I believe the court erred byincluding it. Based upon my 20 years of experience in centralIllinois criminal courts involving thousands of cases, I do notrecall a single instance in which either the State moved todismiss a case with prejudice or the trial court granted theState's motion to dismiss and added those words. Yet, if Howellis to be taken at face value, the phrase "with prejudice" appearsto be an afterthought, given that the Fifth District did not eveninclude that phrase in its initial description of trial courtproceedings when the State moved to dismiss the complaint. Allthe Fifth District mentioned was that the State's nolle prosequiwas entered over defendant's objection.

Leaving aside the questionable authority Howell provides for the majority's decision, the more recent supreme courtdecision in Creek, 94 Ill. 2d 526, 447 N.E.2d 330, requires thiscourt to reverse the trial court's judgment and conclude that theClay County circuit court's dismissal with prejudice on the samefacts was equivalent to a final adjudication on the merits,thereby barring the State in Coles County from using those factsto revoke defendant's probation. The majority seeks to avoidCreek's application by questioning the legitimacy of the ClayCounty circuit court's order. However, this court should notaccept the State's effort to use this appeal as a collateralattack upon the Clay County proceedings.

If the State wished to challenge the legitimacy of theClay County circuit court's order dismissing with prejudice thecase pending there, it should have done so in Clay County. TheState cannot acquiesce (through the actions of the Clay CountyState's Attorney) to a dismissal with prejudice in Clay Countyand then, in effect, try to mount a collateral attack upon thatorder when it serves to bar a petition to revoke probation inanother county of this state.