October 23, 2020
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.
April 1, 2010
In Texas, felonies are reduced to misdemeanors all the time. This can be done several ways but almost always requires the agreement of the prosecutor.
Texas Penal code 12.44(a) and (b) are statutes governing reduction.
For a “12.44(a)”, the judge can impose misdemeanor punishment for a state jail felony where that is in the best interests of justice. The constraints of plea bargaining are such that this can typically only be done when the prosecuting attorney consents. For a “12.44(a),” the judge accepts the plea for the felony and the person is either convicted or placed on deferred for the felony — but the sentence range is reduced to that of a state jail felony (180 days to 2 years state jail and/or fine up to $10k) to a class A misdemeanor (0 days to 1 year in county jail and/ or fine up to $4k).
A “12.44(b)” is where a state jail felony is prosecuted as a class A misdemeanor. In this instance, the person is actually being charged and punished with a misdemeanor even though the legislature has deemed the actual offense worthy of a felony. A 12.44(b) requires the express consent of the prosecuting attorney. In this instance, the person is only convicted or placed on deferred for the misdemeanor.
Other ways felonies are reduced to misdemeanors is through plea bargaining. Plea bargaining occurs in practically every case and is legally a contractual negotiation by nature. Prosecutors often agree to reduce felonies to “lesser included” misdemeanors by agreement if the facts merit or if it’s in the best interests of justice.
Having a felony reduced to a misdemeanor is a very difficult task and attempting to do so should be handled by experienced criminal defense lawyers. Prosecutors hear many sob stories and are used to turning away people with hard-luck situations. Knowing how to fully analyze a criminal case and come up with creative solutions is something that is a bi-product of experience.
Jeremy F. Rosenthal, Esq.
Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific situation you should consult an attorney.