Misdemeanors are crimes punishable by a fine and/or up to a year in the county jail. Felonies, on the other hand, are crimes punishable by imprisonment exceeding a year in the state prison or, in some cases, death (there's often a fine element too). Whether a criminal act constitutes a misdemeanor or a felony depends, then, on the punishment according to the applicable statute - the legal code defining the crime.
Statutes sometimes define a given crime as either a misdemeanor or a felony, leaving it up to the prosecutor to decide how to charge it. An example is Health and Safety Code section 11357(a) regarding hashish which reads: "Except as authorized by law, every person who possesses any concentrated cannabis shall be punished by imprisonment in the county jail for a period of not more than one year or by a fine of not more than five hundred dollars ($500), or by both such fine and imprisonment, or shall be punished by imprisonment in the state prison." This is a classic wobbler.
Misdemeanor Case Timeline
Misdemeanor cases usually start with an arrest, but sometimes, in less serious cases, law enforcement sends the defendant a letter demanding attendance at court to answer charges. The first court appearance is called "arraignment." There, the defense receives a copy of the criminal complaint, police report, lab report, rap sheet and other "discovery." The court informs the defense about the charges and constitutional rights (these steps are usually waived by defense counsel), a plea (usually "not guilty") is entered, bail (or "Own Recognizance" release) is discussed, the defense and prosecution commence negotiations and the court sets a pretrial hearing date. At the pretrial, the parties typically continue to negotiate, the judge reviews case status, another pretrial hearing date is usually scheduled for further negotiations, and a trial date set. Along the way, necessary motions are argued. The case then either results in a "dispo" (settlement) or goes to trial (usually by jury).
Felony Case Timeline
Felony timelines are like those for misdemeanors, but with important differences. After arraignment, the court often sends the case out for "early disposition and plea" ("EDP") where the sides discuss settlement. If there is no settlement at EDP, the court sets one or more "pre-prelims" (pre-preliminary hearing sessions) where, again, settlement and case management are discussed. If the case does not "dispo," it is called for a preliminary hearing where the court hears "prima facie" (basic) evidence and decides if there is probable cause (a "more likely than not" belief) that the defendant committed the charged crime. If so, the defendant is "held over" for trial, an "information" is filed with a higher level court and a felony arraignment is set. A plea is again entered and, if not settled at one or more pretrial hearings or if defense motions to dismiss are not granted by the court, the case goes to trial - usually by a jury.
Motions and Writs
There are several types of motions that the defense can use to its advantage. Generally, the motions concern suppression of illegally obtained evidence or dismissal of the case for one reason or another. In some cases, when the (typically defense) attorney sees an advantage to doing so, he or she will file a writ of mandate or prohibition to have a higher court force the judge in the lower court to do or not do something.
Criminal cases very often settle (by "plea bargain" or, more accurately, "sentence bargain"). In general, the prosecution will not agree to dismiss a case once they have decided to file it unless there is a new development like convincing evidence the defendant is not guilty or a prosecution belief it cannot win for some reason (e.g. witness problems). Sadly, cases sometimes settle simply to avoid the risk of (or stress associated with) trial even though the defendant feels he or she did nothing wrong; I try to discourage my clients from accepting such unjust dispositions, but ultimately the defendant - and only the defendant - is entitled to make that decision; as defense counsel, I am generally obligated to go along with what my client decides.
Our Rating is calculated using information the lawyer has included on
their profile in addition to the information we collect from state
bar associations and other organizations that license legal
professionals. Attorneys who claim their profiles and provide Avvo
with more information tend to have a higher rating than those who do
What determines Avvo Rating?Experience & background
Years licensed, work experience, education
Legal community recognition
Peer endorsements, associations, awards
Legal thought leadership
Publications, speaking engagements
This lawyer was disciplined by a state licensing authority in .
Disciplinary information may not be comprehensive, or updated. We recommend that you always check a lawyer's disciplinary status with their respective state bar association before hiring them.