The Difference Between a Felony and a Misdemeanor

Several listeners have written questions asking what the differences are between a misdemeanor and a felony, and why some crimes seem to be both.

Michael W. Flynn
3-minute read

The Difference Between a Felony and a Misdemeanor


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.

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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.

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