Rule 21 - Trial by the Court or Jury; Right to Appeal (a)Circuit Court-District Division (1)Trial. A defendant shall be tried in the circuit court-district division by a judge unless otherwise provided by law. In all prosecutions for misdemeanors in which appeal for trial de novo is allowed, the court, in its discretion, may allow the defendant, upon advice of counsel, to plead not guilty and to waive the presentation of evidence by the State, and the presentation of a defense. The court shall require the prosecution to make an offer of proof. The court may find the defendant guilty and impose sentence. The defendant may appeal to the superior court. The court's sentence is vacated pending appeal except as otherwise provided by statute. (2)Appeal for Trial De Novo in the Superior Court. When permitted by statute or required by the New Hampshire Constitution, an appeal to the superior court may be taken by the defendant by giving notice in open court after the court pronounces sentence, or by filing written notice with the clerk of the circuit court-district division within three days of the verdict. A defendant who was prevented from appealing through mistake, accident, or misfortune, and not from neglect, may, within thirty days of the imposition of sentence by the circuit court - district division, request the superior court to allow an appeal. The motion shall set forth the reason for appealing and the cause of the delay. The court shall make such order thereon as justice may require. In the event of an appeal, the court may review the defendant's bail status, at the request of either party. If, upon appeal to the superior court, the defendant waives the right to a jury trial, the court shall remand the matter to the circuit court-district division for imposition of the originally imposed sentence. An appeal may not be withdrawn after the record of appeal has been sent to the superior court. Such withdrawals must be made in the superior court. (3)Appeal to Supreme Court. A person sentenced by a circuit court-district division for a class A misdemeanor may, if no appeal for a jury trial in superior court is taken, appeal therefrom to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. When the defendant has been convicted of a violation, or in any case where an appeal for a trial de novo in superior court is not permitted, the defendant may likewise appeal to the Supreme Court at the time the sentence is declared or within thirty days after the sentence is declared. The Supreme Court's review in such cases shall be limited to questions of law. (4)Transcripts. Whenever a party desires to use a sound recording of circuit court-district division proceedings on appeal, a written transcript of the sound recording will be required. (b) Superior Court Trial shall be before a jury of twelve persons unless the defendant, on the record, waives this right. If two or more defendants are to be tried together, the trial shall be before a jury unless all defendants waive the right to a jury trial. The consent of the State is not necessary for the defendant to waive the right to trial by jury.
Adopted effective 1/1/2016 in Strafford and Cheshire counties and 7/1/2016 in Belknap County; amended effective 7/1/2018; amended effective 8/1/2018.Comment
In State v. Thompson, 165 N.H. 779 (2013), the New Hampshire Supreme Court clarified the choice between appealing a misdemeanor conviction by seeking a trial de novo and appealing directly to the Supreme Court on an issue of law. The Court stated: "we reiterate that RSA 502-A:12 'absolutely guarantees trial by jury to persons' convicted in circuit court of a class A misdemeanor, and dictates, as 'the manner ... specified for exercising this right' that the defendant may not also-either prior to, concurrently, or after his appeal to superior court-appeal that same circuit court conviction to this court. Ludwig v. Massachusetts, 427 U.S. 618, 630 (1976). In essence, RSA 502-A:12 limits a defendant to one bite at the apple. Should he choose the de novo jury trial in superior court and again be convicted there, he may of course appeal that conviction to this court." Thompson, 165 N.H. at 788.