A felony is more serious than a misdemeanor. As we noted in part 1
, misdemeanor section, the principal difference between the two kinds of crimes is the maximum potential punishment that can be handed down.
A felony is a criminal offense that is punishable by a term of years in prison, up to and including life.
Of course, a person can be convicted of a felony and not have to serve time, but the key thing that makes a felony different than a misdemeanor is the length of time a person can be incarcerated.
Felony cases fall exclusively within the jurisdiction of and are handled in the county circuit courts, and all felonies are state law cases.
As we begin this section, it is important to remember that the maximum possible punishment is just that: the maximum period of incarceration allowed by law. In the real world, it is rare for anyone with something less than a really bad and/or long prior record to wind up being sentenced to anything near the “max.”
At the end of this section, we’ll deal with 2 other relevant issues: High court misdemeanors (also called “2-year felonies”) and attempt crimes.
In terms of possible incarceration, a person convicted of a felony will be sentenced to 1 of 3 things:
1. No incarceration at all.
2. Up to a year in the county jail.
3. A term of imprisonment for more than a year, to be served in the state prison system.
This means that when you hear someone say something like “6 months in prison,” you should realize that means “6 months in jail.” Conversely, when you hear someone talk about “3 years in jail,” that really means “3 years in prison.”
As we also noted in in the preceding section, a person cannot go to jail for more than 1 year. On the flip side, and as a general rule, a person cannot go to prison for less than a year, either.
Felonies, like misdemeanor offenses, are often spoken of in terms of the maximum period of incarceration that can be imposed.
Thus, a lawyer might discuss a plea bargain with the prosecutor by saying something like, “How about dismissing the 10 year, and let my client plead to the 4-year felony?”
A Judge might observe that “the defendant is charge with three 5-year felonies.”
The point is that, instead of naming a particular offense, a defense lawyer, Judge, or prosecutor may simply refer to it as a “5-year felony” or a “10-year felony.”
There are all kinds of crimes punishable by various terms of years, but the 5 categories listed below are by far the most common:
1.) 4 and 5-year offenses
4-year felonies and 5-year felonies are, not surprisingly punishable by a maximum of 4 years or 5 years in state prison, respectively.
Generally considered the least severe of all real felonies, the numerous offenses that fit into the 4 and 5 Year categories includes things like 3rd Offense DUI (up to 5 years) and possession of cocaine or heroin (4 years).
In many, if not most cases, a person with little or no prior record who is charged with a 4 or 5 year offense can be kept out of both prison and jail with competent legal help.
4 and 5-year offenses are rather common and, for criminal attorneys, are also the most routine and predictable. There are loads of crimes that fall into these categories, and they account for most of what’s on a Circuit Court Judge’s criminal docket.
2.) 10-year offenses
10-year felonies are a step up the ladder of severity.
For example, a person charged with embezzlement of more than $20,000, but less than $50,000 faces a maximum potential prison term of up to 10 years.
To be sure, most people facing a charge like this can avoid prison, and even any jail, if his or her prior record isn’t too bad.
Nevertheless, Judges cannot ignore the penalties that the legislature has specified for different offenses, and the chances of NOT getting locked up begin to go down as the severity of the underlying offense goes up.
3.) 14 and 15-year offenses
14-year and 15-year felonies encompass a class of even more serious offenses.
Criminal Sexual Conduct in the 2nd Degree (with a person under the age of 13, or older than 13 but less than 16 years of age when certain defined relationships exist) can result in sentence of up to 15 years in prison.
Like 10-year felonies, though, prison (and even jail terms in these case can often be avoided if a person doesn’t have a bad prior record, or, better yet, has no prior record.
4.) 20-year offenses
20-year felonies are very serious offenses.
Things like arson of a dwelling and 2nd degree child abuse carry the potential for up to 20 years in the state prison. As with all the less-severe offenses we’ve discussed, a person’’s prior record (or lack thereof) is important in determining what kind of sentence he or she will actually receive.
However, in these more serous cases, the nature of the crime itself - even for a person with no prior criminal record - can result in a jail or prison sentence.
My team and I have handled plenty of 20-year offense cases and have been able to keep our clients from ever being incarcerated.
However, if a person stands before a court having been convicted of something like arson of a dwelling, after burning down someone’s home, having destroyed everything they own and leaving them homeless, it doesn’t take a lot to figure that getting locked up is a lot more likely.
5.) Life offenses
Life-felonies, or capital cases, are the most serious of all criminal offenses.
Crimes such as Murder or Criminal Sexual Conduct in the 1st Degree (rape) can result in a term of Life in prison.
Generally, our firm does not handle these kinds of charges.
In many of these cases, the likelihood of a long prison sentence is very real, and rather than go down without a fight, many people will at least hold a trial, requiring the prosecutor to prove its case to a jury while hoping to catch a lucky break somewhere.
Without exception, these serious kinds of cases should be handled by an experienced trial attorneys.
High Court Misdemeanors - The Hybrid Offense
Theres is a special class of offenses, somewhat confusing, called high court misdemeanors. A high court misdemeanor is technically a felony, and it carries a potential maximum sentence of up to 2 years in prison.
I chose to put this class of crimes in a special section because they are so different from the other “real” felonies we discussed above.
In recent years, there has been a virtual explosion of cases involving the charge of “possession of analogues,” which are narcotic-derivative prescription medications such as Vicodin, Oxycontin, and a host of other drugs.
Our firm handles a lot of aggravated indecent exposure cases. The maximum penalty for that offense is up to 2 years in prison.
The term “high court misdemeanor” describes what is really a hybrid classification. Although these cases follow the exact same procedure as felony offenses, the word “misdemeanor” is part of their name, and although the carry the potential for a prison sentence, they are generally treated much more leniently than regular felonies.
Possession of analogues and other two-year offenses, such as resisting and obstructing arrest (R&O) and aggravated indecent exposure, are really looked at as serious misdemeanors more than anything else. Absent a bad prior record, anyone facing one of these charges can usually be kept out of jail, and often enough concern themselves instead with whether or not there is some way to keep the whole thing off their record.
For as complicated as criminal law and procedure can be, there is one simple rule that applies across the board, in every case: any attempted crime is punishable by a maximum penalty of exactly HALF of the incarceration period for the completed crime.
Let’s look at 2 real-world examples:
1. A person who doesn’t comply with a police officer at the time of arrest, and pulls away when the officer tries to cuff him or her will be charged with the 2-year high court misdemeanor (felony) of resisting and obstructing arrest (R&O).
Often, a good defense lawyer can convince the prosecutor to reduce the charge down to an attempt R&O, meaning that instead of a felony conviction, the person will be convicted of a one-year misdemeanor.
2. Similarly, possession of cocaine is a 4-year felony, because, as we noted above, it carries a maximum penalty of up to 4 years in prison. If lawyer for someone facing that charge can negotiate with the prosecutor to reduce it to an attempt, he or she will end up being convicted of attempted possession of cocaine, and only face a maximum of 2 years in prison.
Sometimes, in that situation, the defense lawyer can work out an even better deal, all the way down to the 1-year misdemeanor offense of “use.” This kind of deal is not very common, however, but that doesn’t mean a lawyer should ever NOT try every way possible to get it.
And with that, we come to the end of our comparative examination of the differences between felonies and misdemeanors.
As was made clear at the outset, this is a deep subject, but for purposes of a summary overview, this should help the reader understand some of the more important distinctions between the 2 kinds of criminal offenses.