Felonies and Misdemeanors
I think it’s a fair statement that most people know that a Felony is a more serious crime than a Misdemeanor. Beyond that, and given the terms that the Criminal Justice system uses, this can all be quite confusing.
Let’s take a very basic look at Criminal Offenses, and how they are classified.
First, we have the lowest-severity of offenses called Misdemeanors.
Misdemeanors can be further broken down into roughly three categories:93 days Misdemeanors
1. Many Misdemeanor charges are crimes that violate a Local Ordinance. These are known as ordinance violations. The prosecutor in these cases is called the City or Township Attorney. In most places (except cities like Detroit, Warren, and Troy) the City or Township Attorney is part of a private law practice. These firms, or individual Attorneys, submit annual bids to the City Council or Township Board to be hired to do all of the City’s legal work. This means that they represent the City or Township in all Civil lawsuits, Zoning cases, as well as handling the Criminal Ordinance cases. This very often also means that as private practitioners, they are sensitive to the relationship between the Defense Attorney and his or her Client, (many of these City Attorneys represent Defendants in different cities for the very same kinds of offenses they prosecute in the city where they are the City Attorney) and they know what it’s like to sit across a desk from a client, take money from them, and go out and try to make things better for them.
Local Ordinance violations are always the least serious of any offenses, and, by law, can only be punishable by a maximum fine of $500, plus costs, and no more than 93 days in the county jail.
2. A second kind of 93 day misdemeanor is a State Law violation, which is punishable in the same way. That is, the maximum fine is still no more than $500, plus costs, and there can be no more than 93 days of County Jail time ordered. What makes a case one of State Law rather than Local Ordinance is simply whether the municipality has enacted a law regarding it. For example, most cities have ordinances against both possession of marijuana and what is called “narcotics paraphernalia,” meaning things used to smoke the marijuana. A few cities, however, do not have a “Narcotics Paraphernalia” ordinance. In those cities, if a Police Officer finds someone with a marijuana pipe, he has two choices: Charge the person with the Local Ordinance crime of Possession of Marijuana (assuming there’s some residue of burnt marijuana in the pipe), or charge them under the State Law prohibiting the possession of narcotics paraphernalia. To complicate things even more, when a person is charged under a Local Ordinance, the Court gets to retain a bigger share of the fines and costs than when a case is brought under State Law. It is not unreasonable to assume that a Police Officer would rather any money paid in the case go to his or her city, rather than the state. State Law cases are always handled by the County Prosecutor’s office, whose Assistant Prosecutors are full-time Attorneys who only prosecute criminal cases.One Year Misdemeanors
3. The third kind of misdemeanor offense is what is known as a One-Year misdemeanor. These are always State Law cases, because under Michigan Law, with a few exceptions, Local Municipalities cannot handle One Year Misdemeanors. The term “One Year” means that these offenses are punishable by up to, but not more than, 1 year in the County Jail, and with a fine not to exceed $1000 plus costs.
To see how this works in real life, let’s talk about the charge of Driving While License Suspended. If a person is charged by a local Police officer with a first offense, the charge will most likely be handled as a 93 day Local Ordinance violation. Even under State Law, a first offense for this crime is limited to a maximum punishment of no more than 93 days in jail.
If a person has been convicted of DWLS before, and is later charged with Driving While License Suspended 2nd, or Subsequent Offense, then the charge is automatically a State Law offense, and thus a One Year Misdemeanor, as well.
The same thing holds true for Drunk Driving cases. All 1st offenses are 93 day misdemeanors, whether charged under local or state law.
All 2nd offenses are State Law violations, and, thus, one year misdemeanors.
Interestingly enough, and not to confuse you, but one of the ironies in the marijuana laws is that while municipalities can charge such crimes as 93 day Misdemeanors, State Law charges it as a One Year offense. This most often comes into play when a person is pulled Over by the State Police, and marijuana is found. State Police arrests always result in State Charges, because the State Police are responsible for enforcing State Laws, not local ordinances.Felony Cases
Felonies are more serious crimes than misdemeanors. The principal difference between the two kinds of crimes is the potential punishment that can be handed down. While even the more serious, One Year misdemeanors can only result in a maximum of up to one year in the County Jail, Felonies can result in a Defendant being ordered to serve a sentence of more than one year (that depends, of course, on the crime) in the State Prison System.
To understand this better, you need to understand the difference between Prison and Jail. County Jails can only house a person for up to, but not more than, a one-year sentence.
State Prisons house inmates whose minimum sentences start at one year. Very often a person is sentenced to Prison for a period of time that contains both a minimum and a maximum (for example, 12 to 24 months). That minimum, however, always starts at one year.
In Michigan, when you hear someone talk about “6 months in prison,” you should realize that means “6 months in Jail.” Conversely, when you hear someone talk about “3 years in jail,” that really means “3 years in Prison.”
The potential fines in Felony cases are much higher, but in practice, such fines are often much lower than those ordered in misdemeanor cases.
Felonies, like Misdemeanors, are often spoken of in terms of the maximum period of incarceration that can be imposed. Thus, as we were just speaking of 93 day Misdemeanors and One Year Misdemeanors, we will now be talking about crimes that are most often called things like Four-Year (4) Felonies, Five-Year (5) Felonies, Ten-Year (10) Felonies, Fourteen-Year (14) Felonies, Fifteen-Year (15) Felonies, 20-Year (20) Felonies, and Life Offenses, or “Capital Crimes.” There are, of course, other crimes punishable by terms of up to seven years, or any other number of years, but the ones below are by far the most common. The somewhat confusing subject of Two-Year (2) Felonies, sometimes also called High Court Misdemeanors, will be examined at the end of this section because these offenses have been getting more and more common in recent years.
Felonies can also be roughly placed in a category that is defined by the maximum period of incarceration that can be imposed for the offense.
Four-Year Felonies and Five-Year Felonies are, not surprisingly punishable by up to 4 years or 5 years in State Prison, respectively. Generally considered the least severe of all real felonies (more on that later when we talk about Two-Year Felonies, or High Court Misdemeanors), the 4 and 5 Year categories includes things like Drunk Driving 3rd Offense (up to 5 years) and Possession of Cocaine or Heroin (4 years).
In many, if not most cases, a person charged with a 4 or 5 year offense, and with a decent prior record, with good legal help, will see no Jail, much less Prison time. This class of cases is probably the most common to occur, and for most Criminal Attorneys, are the most routine and predictable. While each case is unique, simply hearing that an offense carries up to 4 or 5 years in Prison should not make a person so charged tremble with fear. Remember, just as a general rule, the vast majority of people charged with this level of crime can be kept completely out of Jail or Prison. Drunk Driving 3rd Offense is a notable exception, as the law requires a minimum of 30 days incarceration for anyone convicted of this offense. Still, a person would generally have to have been convicted of this same felony offense at least one time in the past before they are likely to see a sentence of more than 1 Year in the County Jail, meaning a Prison term.
Ten-Year Felonies up the ante, so to speak, rather considerably. As an example, a person charged with Embezzlement of more than $20,000, but less than $50,000 faces a maximum Prison term of up to 10 years. Many Defendants can avoid Prison, or even Jail, if their prior record isn’t too bad, even when charged with one of these offenses. Nevertheless, Courts and their Judges are mindful of the penalties that the legislature has sought to impose for different offenses, and the chances of staying completely out of Jail, or Prison do begin to go down as the severity of the underlying offense goes up.
Fourteen-Year Felonies and Fifteen-Year Felonies encompass a class of even more serious offenses. An offense like Uttering an Publishing which entails using altered, false or forged instruments (like a check or a property deed) is punishable by no more than 14 years in the State Prison. Criminal Sexual Conduct in the 2nd Degree (with a person under the age of 13, or older than 13 but less than 16 years of age when certain defined relationships exist) can result in sentence of up to 15 years in Prison. Like Ten-Year Felonies, Jail or Prison terms in this class of cases can be avoided, but much of that has to do with a Defendant’s prior record, or more importantly, lack of one.
Twenty-Year Felonies comprise a class of extremely serious offenses. Things like Delivery of Ecstasy or Arson of a Dwelling can result in an offender being sentenced to up to 20 years in the State Prison. As with the less-severe offenses, a Defendant’s prior record is important in determining what kind of sentence he or she actually receives. More than with the less severe classes of crimes, however, the nature of the crime itself, even for a person with no prior criminal record, can result in a Jail or Prison sentence. I have handled Delivery of Ecstasy cases where the Defendant has not had to serve any time. If a person stands before a Court, however, convicted of something like Arson of a Dwelling, after burning down someone’s home, and making them homeless, it doesn’t take a lot to figure that they are going to get locked up, and probably for more than one year, meaning a Prison rather than a Jail Sentence.
Life-Felonies, or Capital Cases, are the most serious of all criminal offenses. Things like Murder or Criminal Sexual Conduct in the 1st Degree (Rape) can result in a term of Life in Prison. Generally, I do not handle these cases. In many of these cases, the likelihood of a long Prison sentence is a very real thing, and rather than go down without a fight, many people will at least have a trial and require the Prosecutor to prove its case to a jury. I cannot express enough how strongly I feel that these most serious kinds of cases should be handled by experienced trial attorneys. Privately, theses are the highest of high-dollar lawyers, but given the stakes, it’s well worth the money. There are a lot fewer Court-appointed attorneys who take these cases as opposed to the less severe types, and among them are many very competent and dedicated people. The main point here is that if you are going to trial, you want an attorney who tries cases regularly and does so at this serious level.Two-Year Felonies, or High Court Misdemeanors
I chose to put this class of crimes in a special section because they are so different from the other “real” felonies we discussed above. In recent years, there has been a virtual explosion of cases involving the charge of “Possession of analogues.” This term means narcotic-derivative prescription medications such as Vicodin, Oxycontin, and a host of other drugs. The term “High Court Misdemeanor” is really a hybrid term. Although these cases follow the exact same procedure as a Felony, they are called “misdemeanors” and are treated, to tell the truth, much more leniently than regular felonies. Possession of Analogues and other two-year offenses, such as Resisting and Obstructing Arrest (R&O) are really looked at as serious misdemeanors. Without a bad prior record, most Defendants can forget worrying about jail and instead worry about how intense their probation terms are likely to be and whether they can keep the charge off their record.Attempt Crimes
Despite how complex Criminal Law and Procedure can be, there is one simple rule that applies across the board, in every case. Any attempted crime is punishable by a maximum penalty of exactly half the incarceration of the completed crime. Let’s look at a real-world example. A person who doesn’t comply with a Police Officer at the time of arrest, and pulls away when the Officer tries to cuff him or her will be charged with the Two-Year Felony, or High Court Misdemeanor of Resisting and Obstructing Arrest. Often, the Defense Lawyer is able to convince the Prosecutor to reduce the charge down to an attempt, meaning that the Defendant will be convicted of a One-Year Misdemeanor. This is particularly important in terms of legal fees, because if that deal can be made early on, then the lawyer does not have to charge for the additional time and work defending the case in the Circuit Court, or the Court of higher jurisdiction within which all felony cases are decided.
Likewise, Possession of Cocaine, as we noted above, carries a maximum penalty of up to 4 years in Prison. If a person with that charge (and who is otherwise unable to keep the whole thing of his or her record) is able to have the charge reduced to an Attempt, meaning they end up being convicted of the Attempted Possession of Cocaine, they then face a maximum sentence of two years in Prison.
And with that, we shall turn our attention to the differences amongst and between the different Courts.