What is Trial De Novo?

If you have ever received a ticket for a traffic or ordinance violation, or even charged with a misdemeanor which was handled in a city or town court, it is possible to have that case reheard in one of the county circuit or superior courts.  The legal mechanism that allows this is called a request for trial de novo.  The rules for requesting a trial de novo differ slightly depending on whether the judgment was for an infraction/ordinance violation or if there was a conviction for a misdemeanor crime.  Let’s first take a look at the rule that pertains to requesting a trial de novo following a judgement for an infraction or ordinance violation.

According to Trial De Novo Rule 2, 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 shall receive a trial de novo.  However, if the defendant admitted the infraction or ordinance violation, which means there would have been no trial in the city or town court, they may still request that a county 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 only on the sanctions.

In order to request a trial de novo following a judgment for an infraction or ordinance violation, the defendant shall file a written “Request for Trial de Novo” within fifteen (15) days after the judgment was entered.  This request must be made with the clerk of the circuit court for the county in which the city or town court is located.  The Request 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 new trial de novo; or (b) request reassessment of the sanctions imposed in city or town and a judgment de novo as to the sanctions.

Pursuant to Trial De Novo Rule 2(D), 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.

Once such Request is received by the Clerk, the Clerk must then promptly notify the prosecutor or municipal counsel ordering them to file a duplicate infraction or ordinance complaint and summons as the one originally filed in the city or town court.  Once the Clerk notifies the prosecutor or municipal counsel, they have fifteen (15) days to file the duplicate complaint and summons, or to notify the clerk that no proceeding will be filed.  If no proceeding will be filed the judge shall then issue an order of dismissal.

For those charged with misdemeanors in a city or town court Trial De Novo Rule 3 provides that a defendant who has a statutory right to an appeal after a trial for a misdemeanor may request and shall receive a trial de novo.  Additionally, a defendant who entered a plea of guilty to a misdemeanor may request that the circuit or superior court (a) permit the defendant to withdraw the guilty plea and have a trial de novo; or (b) resentence and enter a new judgement of conviction and sentence.

As with judgments for infractions and ordinance violations, requests for a trial de novo following a misdemeanor conviction must also be made in writing and within fifteen (15) days from the date of sentencing.  Furthermore a Request for Trial de Novo must
(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) request a new trial in the circuit or superior court.

Pursuant to Trial De Novo Rule 3, 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.

The prosecutor for the city or town court must be promptly notified by the clerk once such Reqeust is filed and has fifteen (15) days to respond by filing a duplicate charging information with the clerk.  However, it is not grounds for dismissal if the prosecutor doesn’t file the information within that time frame.

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, a new trial shall be provided.  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.  Likewise, 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.
If you or somebody you know has a case pending in a city or town court, we at Banks & Brower, LLC can help answer any questions you may have about requesting a new trial.  Call us today at (317) 870-0019.  We are available 24/7/365 by phone or by email info@banksbrower.com.
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