What Is the Difference Between a Misdemeanor and a Felony?

Our office often defends clients accused of offense, that can be classified as either a misdemeanor or a felony. Such an offense is known as a “wobbler.”

When the District Attorney’s office decides to bring the case as a felony, our office always considers whether and how we can reclassify the case as a misdemeanor under Penal Code § 17 (b). In evaluating whether the facts and circumstances of the case allow us to argue for “17 (b) relief,” our clients often ask us the fundamental question of what is the difference between a felony and a misdemeanor.

Most people, from exposure to the news and television, appreciate that a felony is the most serious type of change a prosecutor can bring. Most people are aware that a felony conviction can involve prison or even a sentence of death. Most people also understand that a felony conviction carries with it a stigma that lasts a lifetime. In certain situations under our Three Strikes Law (Penal Code § 667(b) – (j) and 1170.12), a person convicted of three qualifying felonies can be sentenced to life in prison. Many people also understand that after someone completes prison for a felony, the person will be placed on parole for a period of time.

Lastly, the difference between felony probation and summary probation for a misdemeanor is understood by most people. In felony probation, which can last for up to five years, one must periodically meet face to face with a probation officer and possibly submit to random drug testing, whereas in informal, or summary probation, one’s name is merely on a list. Summary probation usually lasts a maximum of three years, with limited exceptions. There are fees associated with formal probation, whereas with summary probation there are no fees charged to the probationer.

A misdemeanor is indeed a much less serious offense than a felony. A misdemeanor is punishable by no more than a year in county jail, however, a case involving convictions for multiple misdemeanors may involve more than a year of county jail. Bail in a misdemeanor case, in contrast to bail in a felony case, is relatively low. In addition, a conviction for most misdemeanors are eligible for expungement, the exception being certain sex offenses as well as several other rarely prosecuted offenses. After a plea to a misdemeanor, the defendant is assigned to summary probation, usually for two or three years.

There are many crimes that fit the description of a “wobbler.” Driving under the influence causing injury to others (Vehicle Code § 23153), domestic violence (Penal Code § 273.5), criminal threats (Penal Code § 422) and Grand Theft (Penal Code § 487) are just some of the more common of such crimes.

When a case involves a “wobbler,” it is prudent for the attorney representing defendant to consider filing a Penal Code § 17 (b) motion for reduction of the charges from a felony to a misdemeanor. The circumstances of the crime, the defendant’s criminal history and his or her age are important considerations for the court on ruling on such a motion. The court will also consider the person’s personal history, such as his age, marital status, employment status, volunteer activity (community involvement) and education level.

This article was written by Greg Hill. He has handled hundreds of DUI’s and other crimes all over the state of California. He is an attorney in Torrance, California and a former Marine Officer. He is a U.S. Naval Academy graduate (B.S., 1987), Boston University graduate (M.B.A., 1994) and Loyola Law School graduate (J.D., 1998).

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Law treats misdemeanors and felonies differently. The fundamental distinction between felonies and misdemeanors rests with the penalty and the power of imprisonment. All crimes punishable by death are felonies. 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 crimes can be either a felony or a misdemeanor based on an additional element or aggravating characteristic. There are not many differences in the procedural prosecution of felonies and misdemeanors.