Rule 2. Trial de Novo Following Infraction or Ordinance Violation Judgment in City or Town Court
Effective January 1, 2011
(A) Application.
(1) A defendant who has a statutory right to an appeal after a trial for an infraction or ordinance violation in a city or town court may request and shall receive the trial de novo as provided in this rule.
(2) A city or town court defendant who admitted committing an infraction or ordinance violation and therefore had no trial in city or town court may request as provided in this rule that the circuit or superior court either:
(a) permit the defendant to withdraw the admission and have a trial de novo; or
(b) provide a trial de novo on the sanctions.
(B) Demand.
(1) Within fifteen (15) days of the entry of judgment for the infraction or ordinance violation, the defendant shall file a written “Request for Trial de Novo” with the clerk of the circuit court in the county in which the city or town court is located.
(2) The Request for Trial de novo shall state the defendant's name, address, and telephone number; the city or town court in which judgment was entered against the defendant; the date on which judgment was entered in the city or town court; and whether the judgment was entered on a trial or on an admission of the violation. If the city or town court judgment was entered after a trial, the Request shall request a new trial in the circuit or superior court. If the city or town court judgment was entered after an admission of the violation, the Request shall either:
(a) request permission to withdraw the admission of the violation and have a trial de novo; or
(b) request a reassessment of the sanctions imposed in city or town court and a judgment de novo as to sanctions.
(C) Filing and Court Assignment.
The clerk of the circuit court shall docket and assign the request to a circuit or superior court as an infraction or ordinance violation proceeding. The court to which the request is assigned has full jurisdiction of the case and of the person of the defendant from the time the request for the trial de novo is filed with the clerk of the circuit court.
(D) Bond.
(1) The defendant filing the Request shall also file with the clerk of the circuit court a surety bond or cash deposit, payable to the State or municipality, in an amount sufficient to secure the State's or municipality's claims and interest and court costs, and undertaking both the litigation of the trial de novo to a final judgment and payment of any judgment entered against the party filing the Request by the trial de novo court.
(2) If unable to afford a surety bond or cash deposit, the party filing the Request may instead file an affidavit of indigency setting forth information which establishes that the party is unable to afford the required surety bond or cash deposit. The party shall attach to the affidavit of indigency that party's personal undertaking, in writing, to prosecute the trial de novo to final judgment and to pay any judgment which might be entered against that party.
(3) If the party filing the de novo Request does not also file the bond or pretrial undertaking or an affidavit of indigency, the clerk of the circuit court shall not docket and file the defendant's Request for trial de novo.
(E) Notice to Prosecutor or Municipal Counsel of Trial de Novo.
Promptly after the Request for Trial de novo is filed, the clerk of the circuit court shall send notice of the Request to the prosecuting attorney or the municipal counsel with an order from the trial de novo court that the prosecuting attorney or municipal counsel file a duplicate infraction or ordinance complaint and summons with the clerk of the circuit court charging the infraction or ordinance violation as originally filed with the city or town court. Upon receiving the notice of the Request, the prosecutor or municipal counsel shall within fifteen (15) days file the duplicate summons and complaint or, in the prosecutor's or municipal counsel's discretion, notify the clerk in writing that no proceeding will be filed. If the clerk is notified that no proceeding will be filed, the clerk shall bring the case to the attention of the judge who shall issue an order of dismissal.
(F) Notice to City or Town Court of De Novo Filing and Vacation of City or Town Court Judgment.
(1) Upon the filing of a Request for Trial de novo, the clerk of the circuit court shall promptly send notice of the filing of the Request to the city or town court from which the trial de novo is taken. The city or town court shall within fifteen (15) days of its receipt of the notice vacate its judgment against the defendant and shall send notice of the vacation of the judgment to any agency or entity to which it had sent notice of the prosecution or the judgment. If the defendant paid an infraction or ordinance violation judgment to the city or town court, the city or town court shall send the payment, after deducting city or town court costs, to the clerk of the circuit court.
(2) The clerk of the circuit court shall hold any payment received from the city or town court pending the outcome of the trial de novo and shall apply the payment to any judgment imposed by the circuit or superior court following the trial de novo. If any amount of the original payment remains after application to judgments or orders imposed by the trial de novo court, the clerk of the circuit court shall refund the balance to the defendant. If the case is dismissed in the de novo court by the State or the municipality, the clerk of the circuit court shall refund the entire amount to the defendant.