Felony vs. Misdemeanor Charges—Understanding the Distinctions

What Are the Differences Between a Felony and a Misdemeanor?

In the American criminal justice system, there are categories of crimes that generally identify the seriousness of the offense and the potential penalties for a conviction. Some minor violations are referred to as infractions (and often are not considered criminal violations at all), but the two primary classifications of criminal acts are misdemeanor and felony. What are the differences between felonies and misdemeanors? What kind of outcome can you expect when charged with a felony versus a misdemeanor?

What Is a Misdemeanor?

Misdemeanors, although less serious than felonies, are still considered criminal offenses and can be part of your criminal record. Though the precise definition varies from state to state, most jurisdictions follow the lead of the federal criminal justice system, identifying misdemeanors as crimes that result in a period of incarceration of less than one year. In addition, any such incarceration is typically served in a county or local jail rather than a state or federal prison. Judges generally have greater latitude in sentencing for misdemeanors, but defendants charged with misdemeanors who cannot afford legal counsel typically don’t have the right to court-appointed counsel.

Persons convicted of misdemeanors don’t face the same lifelong loss of rights that convicted felons face. In addition, it’s typically much easier to expunge a misdemeanor charge than a felony conviction.

What Criminal Offenses Are Generally Charged as Misdemeanors?

A wide range of offenses can be charged as misdemeanors, including disorderly conduct, trespassing, simple assault, simple possession of marijuana, petty theft, DUI/DWI, public drunkenness, and shoplifting.

How Is a Felony Different from a Misdemeanor?

The primary difference between a felony and a misdemeanor is the potential punishment. If convicted of a felony, you can, and typically will, be sentenced to a period of incarceration for longer than one year. In addition, rather than serving your time in a county jail, you will likely be housed in a state or federal prison. The fines assessed for conviction of a felony are typically substantially higher than those for a misdemeanor.

With a felony, though, if you cannot afford a defense lawyer, you can ask the court to appoint an attorney at no expense.

In addition to the immediate sanctions, a felony conviction carries permanent loss of privilege:

  • You may lose the right to vote.
  • You may be banned from serving in a public office.
  • You may not be allowed to own any firearms.
  • You may not be able to sit on a jury.
  • You may be prohibited from holding a professional license.

What Are Examples of Felonies?

As a general rule, the most serious crimes, such as homicide, rape, kidnapping, arson, robbery, and burglary, are always prosecuted as felonies. However, many other crimes can rise to the level of a felony, given the right circumstances:

  • Drunk driving, though commonly charged as a misdemeanor, may bring felony charges for repeat offenders, for arrests where the intoxicated person causes death or serious injury, or where the level of intoxication is very high.
  • Assault charges can be elevated from a misdemeanor to a felony if a firearm or other weapon is used.

Can the Same Criminal Violation Be Charged as Either a Misdemeanor or a Felony?

Yes. In addition to the examples above, there are many other crimes that can be prosecuted as a misdemeanor or a felony, often at the discretion of the prosecuting attorney but also based on the specific elements of the crime, including

  • The amount in question,
  • The status of the victim,
  • Any prior criminal record, and
  • Any evidence of aggravated or egregious behavior by the defendant.

For example, theft may be prosecuted as petty theft (a misdemeanor) or as grand theft (a felony), usually based on the value of the goods stolen. Another example is drug possession. Possession of contraband drugs can be a misdemeanor but may rise to the level of a felony if the quantity implies an intention to sell or distribute.

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