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Episode Transcript

The Difference Between a Felony and a Misdemeanor
Episode 22: November 21, 2008

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful Life.

But first, a disclaimer: Although I am an attorney, the legal information in this podcast is not intended to be a substitute for seeking personalized legal advice from an attorney licensed to practice in your jurisdiction. Further, I do not intend to create an attorney-client relationship with any listener.

Today’s topic is the difference between a misdemeanor and a felony. In previous episodes, I have mentioned that the law treats misdemeanors and felonies differently. In response, several listeners have written questions asking what the differences are between a misdemeanor and a felony, and why some crimes seem to be both.

The fundamental distinction between felonies and misdemeanors rests with the penalty and the power of imprisonment. The dividing line between felonies and misdemeanors is not whether someone convicted of a particular crime must be punished by a specific time in jail, but whether such person may be punished for a certain length of time or in a specific type of prison.

In states that maintain a death penalty, all crimes punishable by death are felonies. In some states such as New York, New Hampshire and Rhode Island, a crime is a felony if it is punishable by more than one year in jail. In other states, such as Arizona and Wisconsin, a crime is a felony if it is punishable by imprisonment in a state prison or penitentiary.

A misdemeanor is generally a crime that is punishable for a year or less in prison, or only in a county or local jail.

Some states, such as California, have alternative felony/misdemeanor crimes, also known as wobblers. A wobbler is a crime that can be charged as a felony or a misdemeanor based on the circumstances. A wobbler can also be charged as a felony but reduced to a misdemeanor by the sentencing court pursuant to a statute.

Most states also have infractions, which are acts that are against the law, but only punishable by a fine. Traffic violations are the most common examples.

Some crimes can be either a felony or a misdemeanor based on an additional element or aggravating characteristic. For example, simply punching someone in a bar fight might be misdemeanor battery, but punching them while using brass knuckles might be a felony based on the use of a weapon. Or, possession of a small personal amount of marijuana might be a misdemeanor, while possessing twenty pounds of pot might lead to felony charges based on the volume of the drug.

There are not many differences in the procedural prosecution of felonies and misdemeanors. All require that the government bring some sort of formal charges against you, and accord you due process of law. However, the state needs to follow more formal procedures to prosecute you for a felony. For example, an accused can be prosecuted for a misdemeanor in court without an indictment or a preliminary hearing. The difference might also affect how a person appeals the conviction. For example, in California, a person convicted of a misdemeanor appeals to a different court than a person convicted of a felony.

Being convicted of a felony, as opposed to a misdemeanor, can have serious consequences. In addition to the longer punishment, a person convicted of a felony loses the right to possess firearms or obtain certain licenses, such as a hunting or a fishing license. In some states, a convicted felon loses the right to vote. A felon is required to disclose his status when applying for jobs. A repeat felon can face much harsher punishments, especially in states that maintain three-strikes laws.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. Be sure to check out all the excellent Quick and Dirty Tips podcasts at QuickAndDirtyTips.com.

You can send questions and comments to legal@quickanddirtytips.com or call them in to the voice-mail line at 206-202-4LAW. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this podcast only.

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Comments (8) for The Difference Between a Felony and a Misdemeanor | Subscribe to Comment

Carolyn Morales Says:
11/1/2009 6:56:58 AM

My niece was charged with felony battery on a pregnant female. SHE IS INNOCENT. She took a cop to drop off her daughter to non custodial father who doesnt have a drivers license. She always has to take a police escort due to uneccessary conflict. The non custodial fathers new wife was pregnant again, High risk have 3 prior miscarriages. Pregnant new wife came outside to confront officer and my niece. She got behind my niece and said,"You fucking cunt". My niece turned around and said, " You need to watch your mouth in front of my daughter". The high risk pregnant , frequently miscarrying new wife got in my nieces face so close, my niece could see the mole on the back of her shoulder. They may have made unintentional contact at that point. High risk pregnant new wife continued to voice complaints and a few minutes later accused my niece of hitting her in the stomach. She said it happened when she got in my nieces face. She didnt mention it at time. The cop said, "She hit you?". High risk pregnant new wifesaid, "She didnt hit me , hit me." She elbowed mein the stomach. Cop said he didnt see it. No one was arreted thst night. Report wss taken. High risk pregnant new wife had a miscarriage some time later. She then went to State AToorneys office and filed against my niece saying my niece caused her to miscarry. We have since learned that high risk pregnant new wife has a herniated umbillical which is causing her frequent miscarriages. But she tried to blame my niece and a warrant was issued for my nieces arrest. 5O K bond felony battery on a pregnant female. Now her childs father and new wife are trying to get custody through an injunction for protection. My niece is in jail and she is innoceent. She turned herself in. No prior record at all. The state has learned inconsistancies in the accusers story and is now trying ti get my niece to plea bargain down to a misdemeanor. She is innocent though. She never intentionally touched the girl and The girl high risk pregnant was the one agressing and getting in my nieces face. Supposedly the Public Defender is saying the Cop said he saw her elbow the girl in the stomach. If thats true why didnt he arrest her that night. They may have made unintentional contact but myniece wasnt the agressor.She is 24 and scared and she's being coerced to settle so State Attorny doesnt look stupid. Should she settle? What are the ramifications of misdemeanor battery? Will her ex be able to use this supposed unintetional battery to file injunction for protection and use that very from to get an emergency hearing for temporary custody of the minor child? She was only trying to drop off the child to a father who deosnt drive. I feel the g=high risk pregnant new wife got close to my niece to entrap her. She new she was going to miscarry again. 3rd time in 2 years. Now the supposed victim has put my nieces mug shot all over myspace with the caption. "She killed my baby". She is gloating about how she is getting rid of my niece finally after 3 years of harrassment. My niece gets accused of harrassment if she calls to see about her daughter and calls to see if the dad is going to exercise his much neglected visitation with her. All comments are appreciated

Trish Says:
6/6/2009 4:37:37 PM

Can a felony conviction of adjucation withheld after 2.5 years be reduced to a misdemeanor. After, following this case I have recently became aware of so much injustice. Wanting to help an innoccent young man that accepeted a pleas out of fear and now 2 years in college in past is hurting him so much. Never been in any trouble before or after. Please help

Sherry Falls Says:
3/26/2009 7:34:06 AM

In N.C. how long is a felony on your record or does it ever come off?

George Says:
12/3/2008 6:28:40 PM

I been charged of a misdemeanor (assault and battery)what could be my sentence will I lose my job?

lawstudent Says:
12/2/2008 1:28:03 AM

renee: You were told being a convicted felon and having a felony conviction were two different things by whom? If you are convicted of a felony, you are a convicted felon. Most of my criminal background is from working with a criminal defense attorney in Florida, but I cannot fathom that different states would differentiate. After all, if having a felony CONVICTION doesn't make you a convicted felon, what does? Perhaps you were told by this mysterious person that someone who had adjudication withheld is not a convicted felon.. In that case, your information would have been accurate. In some cases, the court can withhold adjudication on a felony charge, which means that although the offender is still receiving some punishment (probation, fines, etc.), s/he is not a convicted felon. But if a person convicted of a felony? No doubt, they're a convicted felon.

marsha haye Says:
10/26/2008 11:26:50 PM

Hey I was recently charged with a felony 2 counts. and sentenced to 60 days but did only 7. First question what is the difference between a felony charge and a convicted felon. I was never told to register any where. Am I a convicted felon like some one who wwnt to prison. it has only been about two months but what can I do to have that nocontest plea (which still means guilty) seal expunged or pardoned. I need help. Of course I have been punished already but I am still a good person and need employment because I have two Kids.

renee Says:
1/10/2008 12:14:29 PM

my friend recently went to court and was given three felony charges.1-credit card abuse.2-execution of legal documents-whatever that means and 3-theft of property1500 less than 20,000.the job application asked her is she a convicted felon and she answered ''no''. it then asked her has she ever been convicted of a felony and she put ''yes''. we were told that being a convicted felon and having felony convictions are two different things. after the background check they decided to not hire her because they say she lied on her application about being a convicted felon. can you please give us the difference on the two?

Adam Freedman Says:
6/23/2007 9:36:17 AM

For those interested in etymology, felony comes from the Old French felonie, meaning "wickedness" -- whereas misdemeanor comes from the Middle English mysdemeanour, literally "bad demeanor" or "bad conduct." Not every jurisdiction maintains the distinction between the two types of crime. In Britain, the Criminal Law Act of 1967 abolished any distinction between felonies and misdemeanors.