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Felonies and Misdemeanors

A felony is a serious crime in the United States. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors. Most common law countries have now abolished the felony/misdemeanor distinction and replaced it with other distinctions such as between summary offences and indictable offences.

In the United States, where the felony/misdemeanor distinction is still widely applied, the Federal government defines a felony as a crime which involves a potential punishment of one year or longer in prison.

Crimes commonly considered to be felonies include, but are not limited to: aggravated assault and/or battery, arson, burglary, illegal drug abuse/sales, embezzlement, grand theft, tax evasion, treason, espionage, racketeering, robbery, murder, rape, kidnapping and fraud. Broadly, felonies can be categorized as either violent or non-violent (property, drug, white-collar) offenses.

Some offenses, though similar in nature, may be felonies or misdemeanors depending on the circumstances. For example, the illegal manufacture, distribution or possession of controlled substances may be a felony, although possession of small amounts may be only a misdemeanor. Possession of a deadly weapon may be generally legal, but carrying the same weapon into a restricted area such as a school may be viewed as a serious offense, regardless of whether or not there is intent to use the weapon.

"The common law divided participants in a felony into four basic categories: (1) first-degree principals, those who actually committed the crime in question; (2) second-degree principals, aiders and abettors present at the scene of the crime; (3) accessories before the fact, aiders and abettors who helped the principal before the basic criminal event took place; and (4) accessories after the fact, persons who helped the principal after the basic criminal event took place. In the course of the 20th century, however, American jurisdictions eliminated the distinction among the first three categories." Gonzales v. Duenas-Alvarez, 549 U.S. __ (2007)

Penal Code section 17 defines the terms " felony " and "misdemeanor." Subdivision (a) of that section reads: "A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime or public offense is a misdemeanor except those offenses that are classified as infractions."

Subdivision (b) of section 17 acknowledges that some offenses are "punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail." These offenses may be either felonies or misdemeanors. They are known as alternative felony-misdemeanors or, more informally, as wobblers.

Subdivision (b) of Penal Code section 17 specifies the circumstances under which a wobbler becomes a misdemeanor: (1) when the court imposes a punishment other than imprisonment in the state prison; (2) when the court designates the offense to be a misdemeanor upon committing the defendant to the Youth Authority; (3) when the court designates the offense to be a misdemeanor upon granting probation without imposition of sentence; (4) when a complaint charging the offense specifies that it is a misdemeanor; and (5) when the magistrate declares the offense to be a misdemeanor at or before the preliminary examination or before filing an order holding the defendant to answer under Penal Code section 872.

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