What Is a Wobbler?

You won't see the word "wobbler" in the law. Rather, the law will indicate that two sentencing options exists—one that's a felony and one that's a misdemeanor. Not all states have wobbler offenses. A few of those that do include Arizona, California, and Massachusetts.

Consider, for example, California's statute regarding assault with a deadly weapon. That statute provides 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 up to 364 days in jail. 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. (Cal. Penal Code §§ 18.5, 245 (2024).)

Who Decides the Punishment for a Wobbler?

Prosecutors generally 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.

The 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.

Some states even allow judges to wait to decide whether certain crimes are misdemeanors or felonies until the defendant has completed probation.

Why Are Wobblers Important?

The difference between having a felony and a misdemeanor conviction is significant—both in the short term and long term. A felony sentence can mean potential time in a state prison versus a county jail where misdemeanor sentences are served. Felonies can also result in steeper fines and longer probation terms than misdemeanors. A felony conviction often results in loss of civil rights (such as the right to vote or possess a firearm). And, if you face later criminal charges, having a prior felony on record can result in a longer sentence.

It's important to speak with a criminal defense attorney any time you face criminal charges. When faced with a wobbler, you'll want an attorney's help to make the best case for misdemeanor charges.