Trial De Novo Rules

Local Trial de Novo Rules
LR29-DN00-601. Rules for Trial de Novo
601.10 This rule is adopted to implement the Supreme Court Rules of procedure regarding trial de novo requests from city and town courts. The application of this rule shall be coextensive with those rules.

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LR29-DN00-602. Rules for Trial De Novo Following Civil Judgments

602.10 Supreme Court Trial De Novo Rule 1 for following civil judgments in city and town courts is incorporated by reference.
602.20 BOND OR OTHER UNDERTAKING:
a. The party filing the request for trial de novo shall file with the Clerk of the Court a surety bond or cash deposit in accordance with Supreme Court Rule 1(C)(1). The bond or cash deposit required by Supreme Court Rule 1(C)(l) shall be in the amount of the judgment entered in the city or town court, plus an amount equaling eight percent (8%) of the total judgment as an allowance for interest. In any case where attorney fees have been awarded as part of the total judgment, the amount of bond shall be increased by 25 percent (25%) of the total judgment as an allowance for additional attorney fees. This bond, however, shall not exceed the jurisdictional limit of the city or town court from which the appeal is taken.
b. If unable to afford a surety bond or cash deposit, the party filing the request may instead file an affidavit of indigence and personal undertaking in accordance with Supreme Court Rule 1(C)(2) on a form prescribed by the Court (Form DN01/02-602/03).

602.30 FILING AND COURT ASSIGNMENT:
a. The Clerk shall not accept for filing or file a request for trial de novo unless it meets the requirement of Supreme Court Rule 1(B)(4). Further, the Clerk shall not accept or file a request for trial de novo supported by an affidavit of indigence and personal undertaking unless the affidavit and personal undertaking are on the form provided by the Courts. If a request for trial de novo supported by an affidavit of indigence and personal undertaking is accepted for filing, it may be ordered stricken from the record if the Court in which it is filed determines that the party filing the request is able to afford to post a surety bond or cash deposit, and the party fails to post the surety bond or cash deposit required within the time set by the Court.
b. The Clerk shall docket the request for trial de novo and the copies of the complaint and any responsive pleadings as a small claims action on the small claims docket of either Superior Court No. 4, Superior Court No. 5, or Superior Court No. 6 unless the request for trial de novo demands that the trial be by jury, in which case the assignment may be to a Circuit or any Superior Court in the county.

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LR29-DN00-603. Rules for Trial De Novo Following Judgments for Infractions or Ordinance Violations
603.10 Supreme Court Trial De Novo Rule 2 for infraction or ordinance violation judgments in city or town courts is incorporated by reference.
603.20 BOND OR OTHER UNDERTAKING:
a. The party filing request for trial de novo shall file with the Clerk of the Court a surety or cash deposit in accordance with Supreme Court Rule 2(D)(1).
b. The bond required by Supreme Court Rule 2(D)(1) shall secure the State or municipality's claims, interest, and court costs, undertaking both the litigation of the trial de novo to a final judgment and payment of any judgment entered against a party filing the request by the trial de novo court.
c. The bond shall be in an amount as follows:
"C" infraction and traffic ordinance violations $500.00;
"B" infraction $1,000.00;
"A" infraction and non traffic ordinance violations $1,500.00;
plus the statutory costs in the trial de novo court.
d. If unable to afford a surety bond or cash deposit, the party filing the request may instead file an affidavit of indigence and personal undertaking in accordance with Supreme Court Rule 2(D)(2) on the form prescribed by the Court (Form DN01/02-602/03).

603.30 FILING AND COURT ASSIGNMENT:
a. The Clerk shall not accept for filing nor file any request for trial de novo unless it meets the requirement of Supreme Court Rule 2(B). Further, the Clerk shall not accept or file a request for trial de novo supported by an affidavit of indigence and personal undertaking unless the affidavit and personal undertaking are on the form provided by the Courts. If a request for trial de novo supported by an affidavit of indigence and personal undertaking is accepted for filing, it may be ordered struck from the record if the Court in which it is filed determines that the party filing the request is able to afford to post a surety bond or cash deposit, and the party fails to post the surety bond or cash deposit required within the time set by the Court.
b. The Clerk shall docket and assign the request for trial de novo to the traffic division of either Superior Court No. 4, Superior Court No. 5, or Superior Court No. 6 as an infraction or ordinance violation proceeding.

603.40 NOTICE TO PROSECUTOR OR MUNICIPAL COUNSEL OF TRIAL DE NOVO:
a. Promptly after the request for trial de novo is filed and assigned to the appropriate court, the Clerk shall send notice of the request to the prosecuting attorney or the municipal counsel.
b. Upon receiving the notice of request, the Prosecutor or the municipal counsel is ordered to file, within fifteen (15) days, a duplicate infraction or ordinance complaint and summons alleging the infraction or ordinance violation as originally filed with the city or town court, together with any amended complaint alleging additional or amended counts also filed with the city or town court.
c. In the discretion of the prosecuting attorney or municipal counsel, and in lieu of filing such duplicate infraction or ordinance complaint and summons, the prosecuting attorney or the municipal counsel shall file with the Court a notice that no proceeding will be filed, together with a proposed order of dismissal including that the Clerk shall refund to the defendant the entire amount of any payment received from the city or town court. The order of dismissal shall also include a release of the surety bond, cash deposit, or personal undertaking.

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LR29-DN00-604. Rules for Trial de Novo Following Misdemeanor Trial in City or Town Court

604.10 Supreme Court Trial De Novo Rule 3 for misdemeanor cases is incorporated by reference.
604.20 DEMAND: The written request for trial de novo must comply with Supreme Court Rule 3(B), but, in addition, must also contain the offense(s) of which the defendant was convicted in the city or town court to enable the Clerk to assign the request for trial de novo to the appropriate court pursuant to the Hamilton County Criminal Random Filing Rule.
604.30 FILING AND COURT ASSIGNMENT:
a. The Clerk of the Courts shall docket and assign the request for trial de novo as a misdemeanor in the appropriate Superior Court in accordance with the Hamilton County Criminal Random Filing Rule (LR29-CR00-301) if the request is sufficient to make such an assignment. If the request contains insufficient information to make such assignment, it may be accepted for filing conditioned upon the defendant providing, within ten (10) days, the information necessary to complete the assignment. If the defendant fails to provide this information within the time specified, then the request for trial de novo shall be stricken as unassignable.
b. 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 trial de novo is filed and assigned by the Clerk.

604.40 BAIL OR INCARCERATION:
a. Stay of City or Town Court Judgment and Appearance Bond. At the time the request for trial de novo is filed, the defendant may also file with the Clerk a surety bond or cash deposit conditioned on appearance for trial and sentencing as required by applicable statutes on bail in criminal prosecution and in accordance with the trial de novo bail schedule in Appendix C. 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. Any defendant who is incarcerated pursuant to the judgment of the city or town court shall be released upon the posting of this bond or cash deposit. If the defendant does not file the surety bond or cash deposit, the judgment of the city or town court shall not be stayed, and the defendant will remain incarcerated or subject to probation orders of the city or town court until the stay imposed under subsection (F)(1) of Supreme Court Rule 3 takes effect. Even if the defendant is not seeking a stay, the posting of such a bond will serve as an appearance bond for the defendant. If such surety bond or cash deposit is posted, then a summons shall be issued to the defendant in accordance with IC 35-33-4-1, in lieu of any warrant that the State may request pursuant to IC 35-33-2-1.
b. The city or town court may transfer any cash bond previously posted in the city or town court to the Clerk of the Court to be applied against the trial de novo bond. In addition, the trial de novo court may accept any surety bond previously posted in the city or town court to be applied against the trial de novo bond, but only if the trial de novo court receives written consent from the surety bondsman.

604.50 NOTICE TO THE PROSECUTING ATTORNEY:
a. Promptly after the request for trial de novo is filed and assigned to the appropriate court, the Clerk shall send notice of the request to the prosecuting attorney.
b. Upon receiving the notice of the request, the Prosecutor is ordered to file within fifteen (15) days a duplicate charging instrument charging the offense or offenses as originally filed with the city or town court together with any additional charging instrument charging additional or amended counts also filed with the city or town court.
c. In the prosecuting attorney's discretion, and in lieu of filing such charging instrument, the State shall file with the Court a notice that no proceeding will be filed, together with a proposed Order of Dismissal, including that the Clerk shall refund to the defendant the entire amount of any payment received from the city or town court.
d. Upon the filing of the charging instrument, the Court to which the request for trial de novo has been assigned, shall proceed in accordance with IC 35-33-2-1, to issue a warrant for the arrest of the defendant, or in accordance with IC 35-33-4-1, to issue a summons for the defendant to appear. If the defendant has posted a surety bond or cash deposit in accordance with paragraphs 604.40(a) or (b) above, then the Court shall issue a summons in lieu of a warrant.

604.60 NOTICE TO CITY OR TOWN COURT:
a. Upon the filing of a request for trial de novo, the Clerk shall promptly send notice of the filing of the request to the city or town court from which the trial de novo was taken.
b. The Clerk 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 fine or costs imposed by the de novo 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.

604.70 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 procedure to be followed shall be in accordance with Supreme Court Trial De Novo Rule 3(G).
604.80 PROCEDURE WHEN PLEA OF NOT GUILTY IS ENTERED IN CITY OR TOWN COURT: If the defendant entered a plea of not guilty in the city or town court, the procedure to be followed shall be in accordance with Supreme Court Trial De Novo Rule 3(H).

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