By Criminal Defense Attorney Jeremy Rosenthal
A misdemeanor is any criminal charge which carries a potential jail sentence of a year or less, and a felony is anything which has a potential jail sentence over a year.
What dictates is the punishment range – not the actual punishment itself.
Here’s an example:
- In Texas we have a classification known as a “State Jail Felony.” Many street drugs such as cocaine in trace or user amounts fit in this category.
- State jail felonies carry a possible punishment between 6 months and 2 years confinement.
- Let’s say a person is sentenced to 6 months of state jail
- The case is a felony because the punishment range or potential punishment from the outset is over a year.
- Even if the 6 months is probated and the person never goes to jail – the case is still a felony.
What Does it Mean if a Case is a Felony?
Felonies usually carry with them collateral consequences in addition to the potential increased jail. States can typically restrict voting and professional licenses to felons as an example. Many employers ask questions to candidates about felonies. In Texas, some rights are restored to felons after they are no longer under the Court’s thumb.
The Federal Government’s View
Each state may define a felony or misdemeanor however they’d like – but the federal government in making policy on things like immigration, lending, and firearms makes it clear this is how they define the difference. The US Constitution also has “the Supremacy Clause” which dictates federal law is superior to state law.
For this reason – the federal government labeling someone a felon can be more severe than the state doing so. As an example, a felon in Texas is permitted to carry a firearm five years after their sentence is complete. But because the federal government also regulates firearms and they strictly prohibit felons from owning pistols or handguns ever – the Texas law allowing a felon to possess such a weapon is somewhat meaningless. You’re still breaking the law.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He has been designated as a Texas Super Lawyer by Thomson Reuters.