# Diff. between a felony and a misdemeanor?



## Carol (Jan 18, 2010)

Someone in my business discussion group was discussing the logistics of hiring someone in Massachusetts.  

Massachusetts has some very specific laws regarding criminal background checks, and pre-employment backround questions.   It is not legal to ask "Have you ever been convicted of a crime?" on a job application in Mass. 

It is, however, legal to ask "Have you ever been convicted of a felony?"

It is also legal to ask "Were you convicted of a misdemeanor in the last 5 years?"

This spun a side discussion, what is the difference between a misdemeanor and a felony? (Other than a misdemeanor is not so good...but a felony is really bad) :lol:


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## Archangel M (Jan 18, 2010)

They are usually defined in your state law, but in a nutshell:

In my state a misdemeanor means you can spend from 15 days UP TO, but not over, a year in jail. Usually served in a county jail.

A felony buys you a year or more. Usually in a state prison.

By definition a misdemeanor or a felony is a "crime". Violation level offenses are things like a simple harassment or a disorderly conduct and like traffic tickets are not "crimes" by definition. Although you could get up to 15 days on violations and even some traffic tickets if the judge so desires.


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## Carol (Jan 18, 2010)

Ahhhhhh OK, that makes sense.   

So based strictly on this attorney's web page, in Mass. the time appears to be 2.5 years jail time or less.



> In Massachusetts, misdemeanors are typically prosecuted in District Court and are punishable by up to two and one-half years in jail.


http://www.davidyannetti.com/PracticeAreas/Misdemeanors.asp

Also thanks for the clarification about how they are both crimes.  In the group's case, the question rose over over OUI, which could be a misdemeanor or a felony (and what impact on the job the conviction could have, if driving a vehicle was not a bona-fide occupational qualification).


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## Drac (Jan 18, 2010)

Archangel M said:


> Although you could get up to 15 days on violations and even some traffic tickets if the judge so desires.


 
*Story Time:*There was a traffic court judge up here that handed out fines and time if you had to appear before him and pled anything but guilty..His reasoning was " You got caught so admit it"..I once skated with a 10 dollar fine and minimal cost on passing someone on the soft shoulder because I admitted guilt..My buddy got caught speeding ( 75 in a 55 ) and pled no contest...The judge went balistic..


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## Bill Mattocks (Jan 18, 2010)

Typically, the difference is as stated - the length of time a person convicted of a crime can be imprisoned.  In some states, misdemeanor sentences are served in local jails, either city or county; whilst felony convictions are served in a state prison facility.  If a crime cannot be punished with imprisonment, but only a fine, it is not a misdemeanor or a felony, it is an infraction.  Examples of infractions are parking tickets.  

Interesting side-note: most states do not have a provision for assignment of counsel (free lawyer) or a right to trial for some infractions.  In other words, you can't 'take it to court' even if you wish to.  It's administrative, not criminal.

Also, and again this varies by state, a person convicted of a felony loses some of their basic rights all US citizens have.  Those are most often loss of the right to vote - in any municipal, county, state or federal election - and the right to own or be in possession of a firearm.  In some states, this loss is permanent.  In some states, the loss is for a certain time period.  In some states, a convict can petition to have their rights restored after a period of time, which they may or may not get back.

There are also federal convictions, which although not technically classified as 'felonies', have the same approximate impact and are considered as if they were felonies.

Most states make it clear in their criminal statutes whether or not a crime is a felony or a misdemeanor, but sometimes it is a matter of either degree (1st degree assault versus 3rd degree assault for example) or it is left up to the prosecution (so-called 'wobblers') and could be prosecuted as either a felony or a misdemeanor, depending on how the DA feels about it.

Many felonies have a lesser included offense which is a misdemeanor, which gives judges, prosecuting attorneys, and juries the ability to either seek or deliver a lesser conviction if conditions warrant it.

Most misdemeanors are not extraditable across state lines - some not even from city to city within a state.  This often stems simply from budget concerns.  Felonies are often, but not always, extraditable.  So a person accused of a misdemeanor could seek refuge in another state, but a person accused of a felony could not; if arrested, they would find themselves taken back to the state where the felony allegedly occurred to face trial.

All misdemeanors have a statute of limitations which preclude prosecution if the crime is more than a certain number of years old.  Some felonies have statutes of limitations, but the most serious often do not.  Felonies also often do not have a statute of limitations if an arrest warrant has been issued - so thirty-year-old warrants for felonies are sometimes still prosecuted.


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## jks9199 (Jan 18, 2010)

Some specifics depend on state law.  Generally, a misdemeanor is any offense punished by a fine and/or less than a year in jail.  Felonies are punished by a greater fine and/or a year or more in prison, or death.  Laws on statutes of limitations vary greatly; generally, in Virginia, any misdemeanor (with a few specific exceptions) has a statute of limitations of 1 year, but felonies have no statute of limitations.  The clock for the statute of limitations stops, whether felony or misdemeanor, with the issuance of an arrest warrant.

However, I think that the reason for the difference in what you can ask is probably because felony conviction carries with it forfeiture of rights.  A convicted felon loses many of their rights, like the right to vote, even after they've served all their time and their parole.

Infractions are third class of offense; they're generally punished primarily by a fine, though some serious infractions may be punished as a misdemeanor.  Most traffic offenses are infractions.

I do take issue with Bill's suggestion that you don't enjoy the right to trial for infractions; you always can have a trial, though sometimes they make it so much of a pain in the *** that it's seldom done.  The US Supreme Court has ruled that you only get a guaranteed right to counsel if your liberty is at risk -- in other words, if you might go to jail.  You still have the right to confront your accuser at trial -- and can even have an attorney, if you want to pay for one.


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## Bill Mattocks (Jan 18, 2010)

jks9199 said:


> I do take issue with Bill's suggestion that you don't enjoy the right to trial for infractions; you always can have a trial, though sometimes they make it so much of a pain in the *** that it's seldom done.  The US Supreme Court has ruled that you only get a guaranteed right to counsel if your liberty is at risk -- in other words, if you might go to jail.  You still have the right to confront your accuser at trial -- and can even have an attorney, if you want to pay for one.



I remembered trying to take a parking ticket to court in Denver once - it had snowed and the snowplow had piled up the snow such that it was impossible to park within a foot of the curb; and I got a ticket for it.  Tried to fight it, was told that in Denver, parking tickets cannot be fought in court.  I was allowed to see an administrative referee, who listened to my sad story and told me to pay up or risk having my car booted.

I just now Googled and it would appear that people do take parking tickets to court in Denver now - so perhaps the law has changed or I was lied to.


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## Carol (Jan 18, 2010)

What, a city wants money from parking tickets?  I'm shocked!  :lol:

I know for minor legal stuff in Mass (small claims court, civil infractions), the matter doesn't generally go before a judge in a formal courtroom, it goes before a local clerk-magistrate in a conference room.  Its technically not a trial, but it is a hearing and the decision the magistrate makes is a binding one.  Maybe that is where some of the confusion lies?


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## jks9199 (Jan 18, 2010)

Carol said:


> What, a city wants money from parking tickets?  I'm shocked!  :lol:
> 
> I know for minor legal stuff in Mass (small claims court, civil infractions), the matter doesn't generally go before a judge in a formal courtroom, it goes before a local clerk-magistrate in a conference room.  Its technically not a trial, but it is a hearing and the decision the magistrate makes is a binding one.  Maybe that is where some of the confusion lies?


Each state has it's own judicial system, and the administrative law is separate from criminal law -- though there's some overlap.  But you always have some opportunity to defend yourself from the alleged offense.  It may start in magistrate's court or some other form of appearance before a lower judicial authority like the clerk/magistrate.  Often you can then appeal that decision to the next higher court...  and so on.

In Virginia, there is no magistrate's court; all misdemeanors and traffic infractions are heard in General District Court.  This is not a court of record, meaning that they don't routinely record the details of the arguments, only the outcomes.  You can appeal a conviction in GDC to Circuit Court, which is a court of record, and it's handled as a whole new trial, as if they lower trial never happened.  Magistrates come into the process before court; among their duties, they decide whether or not probable cause exists to issue a warrant (either arrest or search), and they set the initial bond and bond conditions upon arrest.


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## sgtmac_46 (Jan 19, 2010)

Drac said:


> *Story Time:*There was a traffic court judge up here that handed out fines and time if you had to appear before him and pled anything but guilty..His reasoning was " You got caught so admit it"..I once skated with a 10 dollar fine and minimal cost on passing someone on the soft shoulder because I admitted guilt..My buddy got caught speeding ( 75 in a 55 ) and pled no contest...The judge went balistic..



Did the prosecutor not take plea bargains?


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## sgtmac_46 (Jan 19, 2010)

Carol said:


> Someone in my business discussion group was discussing the logistics of hiring someone in Massachusetts.
> 
> Massachusetts has some very specific laws regarding criminal background checks, and pre-employment backround questions.   It is not legal to ask "Have you ever been convicted of a crime?" on a job application in Mass.
> 
> ...



Felonies are high crimes, the most serious violations of law in our society.

Misdemeanors are crime-lite........not taken lightly, but also not considered generally serious enough to hand down life altering punishments.

Infractions are the least serious violations of law, and are generally punished by punitive fines.


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## MA-Caver (Jan 19, 2010)

Drac said:


> *Story Time:*There was a traffic court judge up here that handed out fines and time if you had to appear before him and pled anything but guilty..His reasoning was " You got caught so admit it"..I once skated with a 10 dollar fine and minimal cost on passing someone on the soft shoulder because I admitted guilt..My buddy got caught speeding ( 75 in a 55 ) and plead no contest...The judge went ballistic..


That is PART of the problem of our judicial system... sometimes Judges are far too lenient or go too far on the opposite end of the scale. Power hungry or power mad. NOT ALL Judges are like this just that I've known one who had a Javert type of attitude of the law and there is no other recourse but THIS punishment because "... the law is the law, good, bad or indifferent it is the law!" 

Yet even within Felonies there are different classifications ... at least in Texas where I got busted and was slapped with a class C Felony. It might've been up to 15 years if the judge had his way (lucky I got one that was more on the lenient end of the pendulum/scale of justice). Still it carries a mark/brand that I haven't been able to shake off for the last 25 years.


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## jks9199 (Jan 19, 2010)

sgtmac_46 said:


> Did the prosecutor not take plea bargains?


I don't know about Ohio -- but we rarely have a prosecutor involved in a traffic case unless the defendant has a lawyer.  Even then, sometimes, it falls to the cop to handle the case if the prosecutor is busy.


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## Grenadier (Jan 19, 2010)

If you have a misdemeanor on your record, it doesn't automatically disqualify you from many things in life.  

If you have a felony on your record, then you lose a lot of your rights:

- No firearms ownership.  If you're caught even handling a firearm, you can go to prison.  

- Some states strip you of your voting rights.

- Many jobs will be off-limits to you. 

- Can't hold a good number of licenses.

- Can't run for public office.


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## jks9199 (Jan 19, 2010)

Grenadier said:


> If you have a misdemeanor on your record, it doesn't automatically disqualify you from many things in life.
> 
> If you have a felony on your record, then you lose a lot of your rights:
> 
> ...


It's worth remembering, too, that some convictions carry more freight than others, even as a misdemeanor.  If you're convicted of trespass for being in a park after dark, for example, it's much different than being convicted of a crime of moral turpitude (nebulous category of crimes that say you're a untrustworthy/corrupt person) or something like contributing to the delinquency of a minor...


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## Carol (Jan 19, 2010)

I realize this is going to vary by state, but what are some of the differences between a misdemeanor OUI and a felony OUI?  

Repeat offenses?  Injury/death to other people?


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## Archangel M (Jan 19, 2010)

In my state if your drivers license is suspended due to DWI and you are caught driving while intoxicated that DWI will now be a felony. That's the most common example, but there are others.


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