Rule 3. Trial de Novo Following Misdemeanor Trial 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 a misdemeanor in a city or town court may request and shall receive the trial de novo as provided in this Rule.
(2) A defendant who entered a plea of guilty to a misdemeanor charge in a city or town court may request as provided in this rule that a circuit or superior court either:
(a) permit the defendant to withdraw the guilty plea and have a trial de novo; or
(b) resentence and enter a new judgment of conviction and sentence.
(B) Demand.
(1) Within fifteen (15) days of the hearing at which the city or town court imposed sentence for the misdemeanor, 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:
(a) state the defendant's name, address, and telephone number;
(b) state the city or town court in which judgment was entered against the defendant;
(c) state the date on which judgment was entered in the city or town court;
(d) state whether the city or town court judgment was entered after a trial or after a guilty plea;
(e) state the name of the penal facility in which the defendant is being held if applicable; and
(f) shall request a new trial in the circuit or superior court.
(C) Filing and Court Assignment.
(1) If the trial de novo is taken from a city or town court, the clerk of the circuit court shall docket and assign the request as a misdemeanor in circuit or superior court in accordance with the county criminal case assignment plan established under Indiana Rule of Criminal Procedure 2.2.
(2) 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) Bail or Incarceration.
At the time the Request for Trial de novo is filed, the defendant may also file with the clerk of the circuit court a surety bond or other pretrial bail undertaking, conditioned on appearance for trial and sentencing as required by the statutes on bail in criminal prosecutions, of the type and in the amount required by a written trial de novo bail schedule provided to the clerk by the circuit or superior court. Filing of the bond or undertaking stays the judgment of the city or town court, and during the period of the stay the defendant shall not be subject to incarceration or probation orders of the city or town court. The defendant, if incarcerated pursuant to the judgment of the city or town court, shall be released under a standing order made by the circuit and superior courts for such cases. If the defendant does not file the bond or bail undertaking, the judgment of the city or town court is not stayed and the defendant will remain incarcerated or subject to probation orders of the city or town court.
(E) Notice to Prosecutor 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 with an order from the trial de novo court that the prosecutor file a duplicate charging instrument with the clerk charging the offense or offenses as originally filed with the city or town court. Upon receiving the notice of the Request, the prosecutor shall within fifteen (15) days file the duplicate charging instrument with the clerk of the circuit court. Failure of the prosecutor to file within the fifteen (15) day period is not a grounds for dismissal of the charges.
(F) Notice to City or Town Court of de Novo Filing.
(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. Within fifteen (15) days of its receipt of the notice of the Request the city or town court shall stay its judgment of sentence and conviction against the defendant and shall send notice of the stay of the judgment to any agency or entity to which it had sent notice of the prosecution or the judgment.
(2) If the defendant paid a fine and costs to the city or town court as part of the misdemeanor sentence it imposed, the city or town court shall send the fine only to the clerk of the circuit court. The clerk of the circuit court shall hold any fine or payment received from the city or town court pending the outcome of the trial de novo and shall apply the payment to any judgment for a fine or costs imposed by the circuit or superior court following the trial de novo or to any order for probation users' fees or recoupment of trial expenses otherwise authorized by law and ordered by the de novo court. If any amount of the original fine payment remains after application to judgments or orders imposed by the trial de novo court, the clerk shall refund the balance to the defendant.
(G) Procedure When Plea of Guilty Was Entered in City or Town Court.
If the defendant entered a plea of guilty in the city or town court, the de novo court shall resolve any request for permission to withdraw the plea. If the plea is allowed to be withdrawn, procedure shall be as provided in Subsection H of this Rule. If the plea is not allowed to be withdrawn, the de novo court shall conduct a sentencing hearing de novo and enter its judgment of conviction and sentence. Upon entering its judgment of conviction and sentence, the de novo court shall send an order to the city or town court to vacate its judgment of conviction and sentence.
(H) Procedure When Plea of Not Guilty Was Entered in City or Town Court.
If the defendant entered a plea of not guilty in the city or town court, the de novo court shall provide the defendant with a new trial. Following the trial, upon entering its judgment either of acquittal or of conviction and sentence, the de novo court shall send an order to the city or town court to vacate its judgment of conviction and sentence.