In general, the potential punishment for a crime determines its classification. For example, that an offense carries possible imprisonment of more than one year commonly makes it a felony. (Another way of framing “felony” is whether the crime could result in time in prison rather than jail.) The crime typically remains a felony even if the judge sentences the defendant to something other the maximum sentence—even if the actual punishment doesn’t involve any time behind bars.
A misdemeanor, on the other hand, is usually any crime that has a maximum jail sentence of a year or less, or that can’t be punished by prison time.
A crime can actually be a misdemeanor for most purposes and a felony for others. An offense that’s a misdemeanor under state law might, for instance, be an “aggravated felony” for purposes of federal immigration proceedings.
Both felonies and misdemeanors can be punished by fines and other penalties (sex-offender registration for one) in addition to incarceration.
Infractions and Wobblers
An infraction is simply a low-level crime, one that’s less serious than a misdemeanor. Infractions normally don’t carry any jail time but involve fines. Perhaps the best example is a traffic ticket for speeding. (Some states even classify infractions like speeding as civil—not criminal—offenses.)
A "wobbler" is certainly more serious, but really isn’t its own kind of crime. Instead, "wobbler" denotes an offense that prosecutors can charge and judges can sentence as either a felony or misdemeanor. In some states and for some crimes, judges can even wait until a defendant has completed probation to decide whether an offense is a misdemeanor or felony.
Prosecutors get to choose how to charge wobblers. But their choice isn’t necessarily controlling: Judges usually have the final say as to whether the offense will be a misdemeanor or felony. The offender’s circumstances and the facts in question regularly shape the misdemeanor-or-felony decision.
In California, for example, assault with a deadly weapon other than a gun is a wobbler because it can result in two, three, or four years in prison, or a year or less in jail. (Cal. Penal Code § 245(a)(1).) A defendant without a criminal record who swings a pipe at someone without connecting might get the year-or-less sentence and therefore the misdemeanor conviction. One who stabs another with a blade is more likely to land a felony.
Drawing the Line
When deciding whether to classify crimes as felonies, wobblers, misdemeanors, or even infractions, state legislatures consider how culpable the action in question makes the defendant. Someone who commits armed robbery, for example, would be more culpable than one who shoplifts, primarily because of the level of danger. Legislatures are more likely to make offenses against property or “public order” misdemeanors than they are crimes that involve threats, injuries, and the like.
Many crimes start out as misdemeanors and become felonies when some additional circumstance is present. Common elements that can jump misdemeanors up to felonies include:
- the value of stolen or destroyed property
- quantities of drugs
- use of a dangerous weapon
- injuring someone
- having prior convictions.
State law could, for example, make stealing property valued at less than $2,500 a misdemeanor and theft of anything more valuable a felony. Or a law could provide that shoplifting is a misdemeanor that becomes a felony when the defendant already has two convictions for the offense.
Degrees of Crime
Lots of states separate their crimes—whether misdemeanors or felonies—into degrees or gradations. (They often do so based on the same criteria that distinguish felonies from misdemeanors.) A common distinction is between “regular” and petty misdemeanors, the latter being less serious and therefore bringing lesser punishment. A more elaborate differentiation is between “classes” or “levels” of crimes, “Class A” or “Level One” usually being the most severe.
Take Texas, for example. There, a Class A misdemeanor carries jail time of a year or less, a $4,000-or-less fine, or both; an example is stealing an unsigned check. Class B misdemeanors carry up to 180 days in jail, a fine of up to $2,000, or both; an example is a standard driving-while-intoxicated offense. And Class C misdemeanors, like standard theft of property worth less than $100, simply bring a maximum fine of $500. (Tex. Penal Code §§ 12.21, 12.22, 12.23, 31.03, 32.24, 49.04.)
The classification affects not only the punishment for a crime, but also the procedure. In some states, for example, the prosecution need only file a “complaint” in a misdemeanor prosecution, whereas a preliminary hearing or indictment is required for felony charges. Even the right to a jury trial can depend on the classification of the charged crime—the U.S. Supreme Court has held that the jury-trial right applies only when the defendant faces a “serious” offense (one that carries a potential of more than six months’ imprisonment). (Baldwin v. New York, 399 U.S. 66 (1970).)
Questions for Your Lawyer
- Can I have a felony conviction reduced to a misdemeanor after the fact? Can I then have the crime “expunged” or “sealed”?
- If I lose at trial, am I likely to end up with a more serious conviction or stiffer sentence?
- When does my state’s law entitle me to a jury trial?
Updated November 12, 2015