What is a wobbler?
A “wobbler” isn’t a misdemeanor, nor is it a felony. It’s
both. It’s a crime that prosecutors can charge as and judges can sentence as
either a misdemeanor or felony.
Consider, for example, California’s statute regarding
assault with a deadly weapon. That statute says that an assault with such a
weapon (other than a gun) can be punished by either prison time of two, three,
or four years, or time in jail not exceeding one year. (Cal. Penal Code § 245(a)(1); see Cal. Penal Code § 18.5 for the meaning of "not exceeding one year.") Prison time denotes a felony,
while jail time indicates a misdemeanor. If the judge sentences the defendant
to prison time, a felony conviction results. If the judge chooses jail time or
a lesser punishment, it’s a misdemeanor conviction. (Some states even allow
judges to wait to decide whether certain crimes are misdemeanors or felonies until the defendant has completed probation.)
have the choice of whether to charge a wobbler as a felony or a misdemeanor.
But even when prosecutors choose one over the other, judges typically have the
final say. For example, if prosecutors charge a wobbler as a felony, the judge
can reduce it to a misdemeanor at sentencing.
facts of the crime and the circumstances surrounding the offender often dictate
whether prosecutors and judges go with the misdemeanor or felony label. Stabbing someone
with a knife, for example, is a kind of deadly-weapon assault likely to incur a
felony charge or conviction. On the other hand, swinging a wine bottle in the
general direction of someone might result in a misdemeanor, particularly if the
judge determines that prison time wouldn’t have a rehabilitative effect.
by: Micah Schwartzbach