*(CNN) — An Illinois appeals court on Friday affirmed “Empire” actor Jussie Smollett’s disorderly conduct convictions for making false reports to the Chicago Police Department in 2019 that he was a victim of a hate crime.
Smollett can appeal the decision to the Illinois Supreme Court.
A jury found Smollett guilty in December 2021 of five out of six felony counts of disorderly conduct for making a false report to police. He was sentenced in March 2022 to 30 months of felony probation, including 150 days in jail, and ordered to pay restitution of more than $120,000 and a fine of $25,000 for making false reports to police.
Smollett was released from jail less than a week later after an Illinois appeals court granted an emergency motion by his attorneys to delay his sentence and grant him bail until their appeal is resolved.
The actor filed an appeal earlier this year arguing that prosecutors violated his due process rights, in part by not enforcing what his attorneys describe as a binding non-prosecution agreement. Smollett said he was subjected to double jeopardy, took issue with the appointment of a special prosecutor, and argued his sentence was excessive, among other things. As part of the appeal, his attorneys requested he get a new trial with a different judge.
The court dismissed the challenges to the special prosecutor largely on procedural grounds. In its order, the court determined it had no jurisdiction over challenges to the special prosecutor because the appointment was the result of an order during the original case, which the court didn’t review. The order noted Smollett did not attempt to appeal the prosecutor’s appointment immediately, instead waiting six months and after he was reindicted.
In reviewing the impact of the original decision not to move forward with charges – referred to as nolle prosequi – the court found the Cook County State’s Attorney did not agree to never charge Smollett. Instead, the court said, the process was effectively frozen and did not constitute a disposition.
“Here, the State’s nolle prosequi of the indictment was not a final disposition of the case,” the court said. “Therefore, the State was not barred from re-prosecuting Smollett. After the nolle prosequi was entered, Smollett was free to go without entering into a recognizance to appear at any other time, which is the bargain Smollett made.”
The court made a similar determination regarding Smollett’s claim the second indictment violated his right against double jeopardy.
Tina Glandian, an attorney for Smollett, declined to comment on the opinion. CNN has reached out to special prosecutor Dan Webb’s office for comment.
Smollett was written out of the final episodes of the fifth season of “Empire” and didn’t return for the sixth and final season.
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