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Differences between Misdemeanors and Felonies

Interviewer: What’s the difference between a misdemeanor and a felony?

Brian Geno: A misdemeanor is a misdemeanor if the statute says so. Sometimes you’ll get cases where you don’t know why it was a felony or why it was a misdemeanor. You think it should be a felony when it’s a misdemeanor, or you think it should be a misdemeanor when it’s a felony, but because the statute says it’s a felony or says it’s a misdemeanor, it is. What that means is, it doesn’t always make a lot of sense to you and me, but typically, if it’s a bigger case, it’s a felony.

Felonies have different penalties. If you are getting a misdemeanor in Virginia, you’ll have a maximum of one year in jail. You’ll have a maximum of $2,500 fine. Oftentimes, if your license is suspended, it doesn’t have to be capped at one year, but it’s typically a year for loss of life. Some counties make it longer, because they hold other things over your head. When it comes to felonies, they can put you in jail for different lengths of time. They have different classes of felonies, so like a class six felony has a one year max in jail and a max $2,500 fine, but when it goes up to a class five felony, they have more jail time and bigger fines. There are class four felonies all the way up to class one felonies, which are essentially life in prison for the worst and most heinous crimes.

The process that they go through for a felony must end in circuit court. If it’s a misdemeanor, it can end in circuit court or a general district court. How it gets there is sometimes a strategy on the part of the prosecution. Sometimes they go straight to the circuit court. Circuit court is where you can have what’s called a “court of record,” and in that court, they record everything and you can get a jury. If it’s not a court of record, like the general district court, there’s no transcription and there are no juries. There are a number of distinctions, but for the most part, a big case is a felony, and a small case is a misdemeanor. Big cases can have bigger penalties. Big cases can have juries. Big cases create a record or transcript. Those are some of the big differences.

When it comes to felonies, a felony will have a minimum of five different appearances. It would have the arraignment, a preliminary healing, term day, a trial date, and a sentencing date. Those are the minimum amount of dates you’ll see in a felony. The only exception would be if you win the case at the trial, you don’t have a sentencing.

In general district court, the lower court, you don’t have to have the preliminary hearing. You don’t have to have the difference between the trial and the sentencing date, so it’s fewer hearings in court, and of course more hearings require more money. If you have a felony and you’re looking for a lawyer, and all of a sudden the lawyer is quoting you fees that are two to three or maybe ten times higher than you thought, it could very well be because circuit court requires so much more skill, so much more time, so many more moving parts. I know that I have to explain that every time I get a client who has a felony. They need to understand why the fees are higher, why the amount of time involved is so much longer, why the juries are or are not available. That’s another difference with respect to felonies versus misdemeanors.

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