What's the Difference Between a Felony and a Misdemeanor in Florida?

Most people know that when it comes to crimes, a felony is more serious than a misdemeanor. But what exactly draws the line between a felony and a misdemeanor in Florida? How is it that the same offense can be charged as a misdemeanor in one instance and a felony in another? 

As our Fort Lauderdale criminal defense lawyers can explain, certain crimes are inherently going to be charged as felonies. Offenses like murder, manslaughter, and rape - those are always going to be felonies, though of varying degrees, depending on the circumstances. But other offenses, like DUI, battery, or theft - they can be charged as either/or. 

The severity of the charge often comes down to some combination of the following: 

• How badly someone else was hurt (or how much property was stolen/destroyed). 
• Whether the defendant intended and/or tried to actually kill the victim. 
• Whether the defendant used a deadly weapon, such as a firearm. 
• The extent of the defendant’s prior criminal record.
• Where the offense took place. Offenses near schools or daycare centers are often deemed more serious than those outside those zones.
• The professional role and/or vulnerability of the victim. Crimes against children, police officers, teachers, the elderly, pregnant people, etc. are often considered more serious than similar offenses committed against others. 

For a defendant, the difference between a misdemeanor and a felony is the punishment - both fines and jail time. Judges have a lot of discretion, but the highest fine one can get for a misdemeanor in Florida is $1,000 and the most jail time is 1 year. Felony convictions, meanwhile, can result in thousands, tens of thousands, or even hundreds of thousands of dollars in fines, and years, decades, or a life term in prison. Capital felonies in Florida can result in the death penalty. Note that misdemeanors do not carry the possibility of a state prison sentence; only time in county jail. 

Classes of criminal offenses in Florida are spelled out in F.S. 775.08. 

The statute defines a felony as any criminal offense punishable under the laws of the state by death OR imprisonment in a state penitentiary/prison. Prison sentences are only imposed for crimes that carry an incarceration time that exceeds 1 year. These will be prosecuted by the circuit court. 

Further, misdemeanor is any criminal offense punishable under laws of the state by imprisonment in a county correctional facility for a term not to exceed 1 year. These will mostly be prosecuted in county courts. 

There is a separate category of offense known as a non-criminal violation. These are infractions that include non-criminal traffic violations or breaches of city or county ordinances. Penalties may be imposed (including maximum $500 in fines, plus forfeiture and/or other civil penalties), but the violations themselves are not criminal. There is no jail time imposed for non-criminal violations, though you may be compelled to appear in court. Failure to appear (FTA) in court to answer for a non-criminal violation may be a criminal offense that could lead to a warrant for your arrest.

While most states delineate between felonies and misdemeanors in the same way (maximum 1-year in jail for misdemeanors and more than 1 year in prison for felonies), each state has varying degrees of felonies and misdemeanors that they define in their own ways. 

The classifications of these offenses are laid out in F.S. 775.081, with incarceration penalties detailed in F.S. 775.082 and fines in F.S. 775.083.

Florida has five degrees of felonies, the lowest being third-degree felonies and the highest being capitol felonies. 

Severity and penalties are as follows:

• Third-degree felony - Maximum fine up to $5,000 and maximum prison sentence of up to 5 years.
• Second-degree felony - Maximum fine of up to $10,000 and maximum prison sentence of up to 15 years. 
• First-degree felony - Maximum fine of up to $10,000 and maximum prison sentence of up to 30 years. 
• Life felony - Maximum fine of up to $15,000 and maximum prison sentence of 25 years to life.
• Capital felony - Maximum prison term that may include life with ineligibility for parole or a death sentence. 

Upon release from prison, convicted felons may be required to complete a period of parole/community monitoring. 

All felony convictions - even a lower-level one - also have additional consequences and civil rights restrictions that will follow them throughout life. A person who is convicted of a felony may not be eligible for federal student loans, Pell grants, or other financial aid. Felony convictions may impede a person’s fitness for certain types of jobs (particularly higher-level positions and those that involve positions of trust or vulnerable populations). Certain housing opportunities can be denied to individuals who have a felony conviction. These can apply even for lower-level felonies. Voting rights for felons in Florida are not restored until one’s prison sentence and probation has been successfully completed and all fines, court costs, and victims’ restitution is fully paid. It is also illegal for convicted felons in Florida to own firearms - unless that specific civil right has been restored by the Clemency Board OR the weapon qualifies as an antique firearm (manufactured in or before 1918) pursuant to F.S. 709.001(1). 

Florida misdemeanors fall into just one of two categories: First-degree and second-degree, the former being the more serious of the two. 

Severity and penalties are as follows:

• Second-degree misdemeanor - Maximum fine of up to $500 and maximum jail time up to 60 days. 
• First-degree misdemeanor - Maximum fine of $1,000 and maximum jail time of up to 1 year. 

Misdemeanor convictions also often involve a period of community monitoring/probation, community service, driver’s license suspension and other driving restrictions, and continuing education requirements (i.e., batterers intervention courses, safe driving courses, etc.). 

Contrary to popular belief, you are not entitled to the services of a criminal defense lawyer for every single criminal case. It is only if you are facing incarceration that you are entitled to a lawyer - meaning if you can’t afford one, you’ll have one appointed to you by the state. 

However, as reported by the Equal Justice Initiative, in a single recent year, only 45 percent of all misdemeanor cases in Florida had a public defender present, and only in 13 percent of misdemeanor cases did defendants have a private attorney present. That means there are a whole lot of misdemeanor defendants going to court without a lawyer. 

It’s important if you can afford one to hire one - even for misdemeanors. That’s because defendants who appear in court with a defense attorney are MUCH more likely to accept unfair plea deals from prosecutors, spend extra time in jail, and pay higher court costs. People often plead guilty without understanding that they’ll end up with a permanent criminal record - and all the consequences that go with that (potential job loss, driver’s license suspension/revocation, deportation risks for immigrants, etc.). 

Always hire a lawyer if you can, even for less serious criminal offenses. 

If you’re facing a fe