In every state, crimes are put into distinct categories. The categories are usually "felony," "misdemeanor," and "infraction." Decisions on crime classification are made by state legislators; the determination focuses on the seriousness of the crime. This article looks at the differences among these crime classifications, moving from least serious (infractions) to most (felonies). To learn more about how specific crimes are defined, check out Nolo's Crimes In-Depth section.
Infractions (sometimes called violations) are petty offenses that are typically punishable by fines, but not jail time. Because infractions cannot result in a jail sentence or even probation, defendants charged with infractions do not have a right to a jury trial. A defendant who has been charged with an infraction can hire an attorney, but the government doesn't have a constitutional duty to appoint one. Often, prosecutors don't appear on behalf of the government in cases involving infractions. Traffic offenses are the most common form of infraction. (Note that some states consider certain kinds of infractions like traffic tickets to be civil, rather than criminal, offenses.)
Infraction Example. Ginger receives a speeding ticket. After Ginger and the officer who issued the ticket testify, the judge concludes that Ginger was speeding. Ginger's punishment is limited to a fine and the addition of a point to her driving record. (Learn more in How do points against my license affect me?)
Misdemeanors are criminal offenses that carry up to a year in jail in most states. Punishment for misdemeanors can also include payment of a fine, probation, community service, and restitution. (For more on the potential punishment, see Sentencing.) Defendants charged with misdemeanors are often entitled to a jury trial. Indigent defendants charged with misdemeanors are usually entitled to legal representation at government expense. Some states subdivide misdemeanors by class or degree or define more serious misdemeanor offenses as "gross misdemeanors." These classifications determine the severity of punishment.
Misdemeanor Example. Dave is convicted of simple assault. The offense carries a maximum fine of $1,000 and maximum jail time of six months. It's a misdemeanor. (For example, see Cal. Penal Code 241.)
Felonies are the most serious type of criminal offense. Felonies often involve serious physical harm (or threat of harm) to victims, but they also include offenses like white collar crimes and fraud schemes. Offenses that otherwise are misdemeanors can be elevated to felonies for second-time offenders. A felony conviction, like a misdemeanor conviction, may not result in time behind bars. But felonies carry potential imprisonment that ranges from time in prison (a year is often the low end) to life in prison without parole or even death. As with misdemeanors, states may also subdivide felonies by class or degree.
Felony Example 1. Randy is convicted of felony assault with a deadly weapon even though the bottle that he threw at another patron in a tavern missed its intended target. Even though he failed to injure the intended victim, his behavior was intended to (and did) create a risk of serious physical injury.
Felony Example 2. Leora had two prior shoplifting convictions before being arrested for yet another shoplifting offense. State law allows prosecutors to charge shoplifting as a felony if the merchandise was worth a certain amount and the defendant has two or more prior shoplifting convictions. The prosecutor charges Leora with felony shoplifting. (See Miss. Code. Ann. 97-23-93.)
"Wobblers": Felony or Misdemeanor
A "wobbler" is an offense that may be prosecuted as a felony or as a misdemeanor. An offense that was prosecuted as a felony may also be downgraded to a misdemeanor at the time of sentencing. This occurs when statutes authorize judges to punish offenders as either misdemeanants or felony offenders.
"Wobbler" Example. Randy is convicted of assault with a deadly weapon. State law provides that the offense is punishable by up to one year in jail or up to five years in prison. The judge sentences Randy to four months in jail, three years of probation, and 200 hours of community service. The sentence makes the conviction a misdemeanor.
Depending on the circumstances, you may not need a lawyer for something like a traffic-ticket case. But for the overwhelming majority of criminal cases, using an attorney is the way to go. Beyond the sentence the judge imposes, a criminal conviction can carry long lasting consequences. If your lawyer can't avoid a conviction, he or she might be able to get you a better result than you would have otherwise. And an experienced lawyer wil be able to protect your rights and fully explain the applicable law, your options, and the potential outcomes. You can use Nolo's trusted Lawyer Directory to find an experienced criminal law attorney near you.