Tuesday, July 6, 2010

Misdemeanors, Felonies and Common Law Crimes in Florida

Those who do not practice criminal law in the courts of Florida are often confused as to the differences in severity between misdemeanors and felonies, and between differing severity classes within those categories. Very few people understand what a common law crime under Florida law is. A good number of people who read this blog have told me that they do not fully understand the various classes of criminal offenses and how they differ, e.g., the difference in potential punishment between a third degree felony and a first degree felony. This post is meant to serve as a primer on the classes of offenses under Florida law.

In Florida, almost all criminal offenses are divided by severity into the two broad categories of misdemeanors and felonies. A third, very small, category is that of common law crimes which have attributes of each of the other two categories. County courts have original jurisdiction in all misdemeanor cases not cognizable by the circuit courts.[1] Circuit courts have jurisdiction, inter alia, of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged.[2] The circuit court also has original jurisdiction in all cases relating to juveniles except traffic offenses as provided in chapters 316 (State Uniform Traffic Control) and 985 (Delinquency), Florida Statutes, and exclusive original jurisdiction of proceedings in which a child is alleged to have committed a delinquent act or violation of law.[3] Juvenile cases are, however, processed separately from adult cases.[4] The Florida Rules of Criminal Procedure and Rules of Evidence apply uniformly to both classes of offenses.


The term “misdemeanor” means any criminal offense that is punishable under the laws of the State of Florida, or that would be punishable if committed in Florida, by a term of imprisonment in a county correctional facility, except an extended term, not in excess of one year. The term “misdemeanor” does not mean a conviction for any noncriminal traffic violation of any provision of chapter 316, F.S., or any municipal or county ordinance.[5]

Misdemeanors are less severe than felonies and are further divided by degree. Misdemeanors of the second degree may be punished by a statutory maximum of up to 60 days in county jail; first degree misdemeanors may be punished by up to a year in county jail.

As it can with almost all felonies, a court may also impose probationary sentences for misdemeanors up to the statutory maximum for the offense. Punishment for a second-degree misdemeanor thus can include up to six months probation, while for a first-degree probation it can be up to a year of probation. The court can also combine incarceration with probation. Examples of lawful combinations include a twelve-month straight probationary sentence with 364 days incarceration as a condition of probation for a first degree misdemeanor and six months straight probation with 60 days of incarceration as a condition of probation for a second-degree misdemeanor;[6] a true split sentence of incarceration followed by a period of probation totaling up to one year for a first degree misdemeanor and up to six months for a second-degree misdemeanor; and a reverse split sentence of probation followed by incarceration within the same respective totals as for true split sentences. Formerly, the practice in many jurisdictions (if not the rule) was that, upon revocation of probation, the defendant was eligible for credit for time spent on probation towards time spent incarcerated, so that the combined total of probation and incarceration did not exceed the relevant statutory maximums.[7] That is not the case today. Thus, it is now possible for a judge to revoke probation in a first-degree misdemeanor case and impose the full incarcerative penalty (one year for a first-degree misdemeanor and 60 days for a second-degree misdemeanor), with credit for any time served, upon revocation of probation, notwithstanding how long the defendant has been on probation.

There is no statutory authority for incarcerating misdemeanants in state prison, although a defendant charged with both a felony and a misdemeanor can be sentenced to prison for the felony with the misdemeanor sentence to run concurrently. Likewise, neither the sentencing guidelines nor the Criminal Punishment Code apply to misdemeanors.[8]

Some misdemeanors are subject to reclassification of the offense to a higher degree of misdemeanor or to a felony and/or enhancement of the penalty (sometimes including minimum mandatory provisions) based on recidivism and/or statutory aggravating factors. Common examples include driving under the influence,[9] driving while license suspended or revoked,[10] battery,[11] culpable negligence,[12] petit theft,[13] and possession of marijuana.[14]

The trend in Florida is toward more structured sentencing and less judicial discretion in misdemeanors, as has been the case with felonies. A longstanding example is in driving under the influence cases where, upon conviction, the trial court cannot withhold adjudication and is legislatively mandated to impose certain additional sanctions.

A more recent example is the creation of section 775.0837, F.S., the Habitual Misdemeanor Offenders Law. A habitual misdemeanor offender is defined as a person who is before the court for sentencing for any misdemeanor offense described in chapters 741, 784, 790, 796, 800, 806, 810, 812, 817, 831, 832, 843, 856, 893, or 901, F.S. and who has previously been convicted, as an adult, of four or more misdemeanor offenses described in these chapters that were not part of the same criminal transaction or episode and were committed within one year of the date of the commission of the misdemeanor that is before the court for sentencing. If the court finds that the defendant qualifies as a habitual misdemeanor offender, the court is required, unless it makes a finding that an alternative disposition is in the best interests of the community and the defendant, to sentence the defendant as a habitual misdemeanor offender and impose one of the following sentences:

(1) Incarceration in a county jail operated by the county or a private vendor for a term of not less than six months, but not to exceed one year;

(2) Commitment to a residential treatment program or other community-based treatment program or a combination of residential and community-based program for not less than six months, but not to exceed 364 days; or

(3) Detention for not less than six months, but not to exceed 364 days, to a designated residence.

A court may not sentence a defendant under section 775.0837, however, if the misdemeanor before the court for sentencing has been reclassified as a felony as a result of any prior qualifying misdemeanor.[15]

Note that the common law offense of criminal contempt and local ordinances punishable by incarceration are the legal equivalent to misdemeanors for purposes of sentencing.[16]


The term “felony” means any criminal offense that is punishable under the laws of Florida, or that would be punishable if committed in Florida, by death or imprisonment in the state penitentiary. “State penitentiary” includes state correctional facilities. A person must be imprisoned in the state penitentiary for each sentence which, except for an extended term, exceeds one year.[17] All felonies are punishable by incarceration in state prison. The legislature has created five categories of felonies, which are classified, for purposes of sentencing and for any other purpose provided by statute, as follows:

Capital felony. A defendant who has been convicted of a capital felony must be punished by death if the proceeding held to determine sentence in accordance with the provisions of section 921.141 results in findings by the court that such person shall be punished by death, otherwise such person must be punished by life imprisonment and will be ineligible for parole. In the event that the death penalty is held to be unconstitutional by the Florida Supreme Court or the United States Supreme Court, the court having jurisdiction over a defendant previously sentenced to death for a capital felony is required to cause that defendant to be brought before the court and to sentence that defendant to life imprisonment without possibility of parole. No sentence of death can be reduced as a result of a determination that a method of execution is held unconstitutional under the state constitution or the constitution of the United States.[18]

Life felony. A defendant who has been convicted of a life felony committed prior to October 1, 1983 may be punished by a term of imprisonment for life or for a term of years not less than 30; for a life felony committed on or after October 1, 1983 by a term of imprisonment not exceeding 40 years; for a life felony committed on or after July 1, 1995 , except for one which was committed on or after September 1, 2005 which is a violation of section 800.04(5)(b), for a term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment; and for a life felony committed on or after September 1, 2005 which is a violation of s. 800.04(5)(b), by a term of imprisonment for life, or a split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in section 948.012(4).[19] Note that the provision for not less than 25 years’ imprisonment is not a minimum mandatory sentence in the ordinary sense.[20] A defendant who has committed a life felony on or after July 1, 2008, which is that defendant’s second or subsequent violation of section 800.04(5)(b) may be punished by a term of imprisonment for life.[21]

Felony of the first degree. A defendant who has been convicted of a felony of the first degree may be punished by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment.[22]

Felony of the second degree. A defendant who has been convicted of a felony of the second degree may be punished by a term of imprisonment not exceeding 15 years.[23]

Felony of the third degree. A defendant who has been convicted of a felony of the third degree may be punished by a term of imprisonment not exceeding 5 years.[24]

A capital felony and a life felony must be so designated by statute. Other felonies are of the particular degree designated by statute. Any crime declared by statute to be a felony without specification of degree is a felony of the third degree, except that this provision does not affect felonies punishable by life imprisonment for the first offense.[25]

First degree felony punishable by life. There is no separate classification for first degree felonies punishable by life imprisonment.[26] Thus, a first degree felony, regardless of the sentence imposed by the substantive law prohibiting the conduct, is still a first degree felony under the statutory classification.[27] Some confusion in distinguishing a life felony from a first degree felony punishable by life can arise because of the statutory language that permits each, in certain circumstances, to be punished by a term of years not exceeding life imprisonment, and the lack of a definition of what such a term of years is.[28] The distinction that the former is a separate classification scheme and the latter is a penalty provision within a different classification scheme remains, however.[29]

A capital crime may be charged only by indictment, but any other felony may be charged by either information or indictment.[30] An indictment may be amended only to correct a defect, error, or omission in a caption or to eliminate surplusage.[31] Otherwise, a trial court has no authority to issue an order amending an indictment.[32] Further, once an indictment has been returned, a grand jury cannot charge a new or different crime through an amendment to the indictment.[33] However, the grand jury and state attorney have concurrent authority to charge noncapital crimes.[34] Even when the grand jury has declined to charge an offense by indictment, the state attorney may charge the same offense by information.[35]

Common Law Crimes

A third category of crimes in Florida comprises crimes at common law. Common law crimes are the vestiges of the time before the rise of criminal codification, when the inherited common law of England was in force in the state. Generally,
The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.[36]
As to crimes, the common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, is of full force in Florida where there is no existing provision by statute on the subject.[37] Those crimes which have not been separately reclassified by statute as either a felony or a misdemeanor therefore retain their status as common law crimes.[38]

There are two types of common law crimes in Florida (1) those for which the elements are defined by statute but which are not classified, and (2) those for which the elements are not defined but which are classified by statute. Punishment at common law has been effectively abolished by Florida statutory law, which now defines the range of punishments for each of the statutory crimes, also provides that “When there exists no such provision by statute, the court shall proceed to punish such offense by fine or imprisonment, but the fine shall not exceed $500, nor the imprisonment 12 months.”[39]

Contempt is a common law crime in Florida,[40] which, although recognized by statute,[41] is not specifically classified by statute as either a felony or a misdemeanor.[42] Criminal contempt is a common law crime which can carry a maximum term of imprisonment for twelve months and which case law regards as the functional equivalent of a misdemeanor for purposes of the right to court-appointed counsel during contempt proceedings.[43] Cheating is another common law crime, the elements of which are not set out by statute, although it has been classified as a felony.[44]

An unresolved issue is whether or not contempt convictions can be scored as prior record on a scoresheet used at sentencing. Common practice is to list contempt convictions under the defendant’s prior record as misdemeanors, but Fla. R. Crim. P. 3.702-3.704 and the statutory guidelines and Criminal Punishment Code address only felonies and misdemeanors and do not address common law crimes.


1 Sec. 34.01(a), F.S.

2 Sec. 26.012(2)(d), F.S.

3 Secs. 26.012(2)(c) and 985.0301(1), F.S.

4 See, ch. 985, F.S.

5 Sec. 775.08(2), F.S.

6 See, Smith v. State, 484 So. 2d 581 (Fla. 1986: Sloan v. State, — So. 3d —, 2009 WL 1212257 (Fla. Dist. Ct. App. 2d Dist. 2009).

7 See, Baldwin v. State, 558 So. 2d 173 (Fla. Dist. Ct. App. 5th Dist. 1990), subsequently modified by Grissinger v. State, 905 So. 2d 982 (Fla. Dist. Ct. App. 4th Dist. 2005).

8 Singleton v. State, 554 So. 2d 1162 (Fla. 1990) at 1164 n.2.

9 Sec. 316.193, F.S.

10 Sec. 322.34, F.S.

11 Sec. 784.03, F.S.

12 Sec. 784.05, F.S.

13 Sec. 812.014, F.S.

14 Sec. 893.13, F.S.

15 Sec. 775.0837, F.S.

16 See, Saridakis v. State, 936 So. 2d 33 (Fla. Dist. Ct. App. 4th Dist. 2006) (criminal contempt); City of Ft. Lauderdale v. Mattlin, 566 So. 2d 1330 (Fla. Dist. Ct. App. 4th Dist. 1990) (municipal ordinance); Moorman v. Bentley, 490 So. 2d 186 (Fla. Dist. Ct. App. 2d 1986) (criminal contempt).

17 Sec. 775.08(1), F.S.

18 Sec. 775.08(1)(a), F.S.; Sec. 775.082(1) & (2), F.S.

19 Sec. 775.081(b), F.S.; Sec. 775.082(3)(a), F.S.

20 Montgomery v. State, — So. 3d —, 2010 WL 2330419 (Fla. Dist. Ct. App. 2d Dist. 2010).

21 Sec. 775.082(3)(a)4.b., F.S.

22 Sec. 775.081(c), F.S.; Sec. 775.082(3)(b), F.S.

23 Sec. 775.081(1)(d), F.S.; Sec. 775.082(3)(c), F.S.

24 Sec. 775.081(1)(e), F.S.; Sec. 775.082(3)(d), F.S.

25 Sec. 775.081(1), F.S.

26 See, Jones v. State, 546 So. 2d 1134, 1135 (Fla. Dist. Ct. App. 1st Dist. 1989) (“It is clear that there is no distinct felony classification of ‘first degree felony punishable by life,’ but only a first degree felony which may be punished in one of two ways.”).

27 Burdick v. State, 594 So. 2d 267 (Fla. 1992).

28 See, Powlowski v. State, 467 So. 2d 334 (Fla. Dist. Ct. App. 5th Dist. 1985) (a sentence of 300 years is a term of imprisonment less than life); Greenhalgh v. State, 582 So. 2d 107 (Fla. Dist. Ct. App. 2d Dist. 1991) (99-year sentence would be lawful for felony punishable by life).

29 See, Brown v. State, 412 So. 2d 58 (Fla. Dist. Ct. App. 4th Dist. 1982); Trent v. State, 403 So. 2d 1131 (Fla. Dist. Ct. App. 4th Dist. 1981).

30 Art. I, § 15, Fla. Const.; Fla. R.Crim. P. 3.140(a).

31 Fla. R. Crim. P. 3.140(c)(1), (i)-(j).

32 Snipes v. State, 733 So. 2d 1000, 1004 (Fla. 1999).

33 Smith v. State, 424 So. 2d 726, 729 (Fla. 1982).

34 State ex rel. Hardy v. Blount, 261 So. 2d 172, 174 (Fla. 1972).

35 State ex rel. Hardy v. Blount, 261 So. 2d 172, 174 (Fla. 1972); State ex rel. Latour v. Stone, 135 Fla. 816, 185 So. 729, 730 (Fla. 1939).

36 Sec. 2.01, F.S.

37 Sec. 775.01, F.S.

38 Giordano v. State, 32 So. 3d 96 (Fla. Dist. Ct. App. 2d Dist. 2009).

39 Sec. 775.02, F.S.

40 Kramer v. State, 800 So. 2d 319 (Fla. Dist. Ct. App. 2d Dist. 2001).

41 Sec. 38.23, F.S.

42 Sec. 38.22, F.S.; see, Ducksworth v. Boyer, 125 So. 2d 844, (Fla. 1960) (contempt is neither a felony nor a misdemeanor).

43 Giordano v. State, 32 So. 3d 96 (Fla. Dist. Ct. App. 2d Dist. 2009).

44 “Whoever is convicted of any gross fraud or cheat at common law shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.” Sec. 817.29, F.S.


julio said...

Good morning,

I would appreciate your assistance and expertise in clarifying the following question please.
If an individual is sentenced to 2 seperate indictments 5 years in federal prison and 15 years in state; has completed the 5 years in federal and completed confiditional release portion of first indictment (5yer feds) with no violations, would this 1st case of 2 cases be considered as an expired sentence? Currently serving time in state prison, is the state required or should they award me all gain time received from feds.. is there a case law for this? your prompt attention will be greatly appreciated?

patrickmcdiver said...

Can a combination of probation and incarceration exceed 1 year for a first degree misdeamonor (Possession of drug paraphernalia) with no specification of split sentence or any other special circumstance?

maliciousme112233 said...

Whats the least charge you can receive for a misdemeanor under 20g of marihuana?

VanRiperandNies said...

This is a nice guide.

Ethan Smith said...
This comment has been removed by the author.
Unknown said...

I'd like to know what a 16 year old juvenile faces when convicted of a 1st degree felony

Mark said...

I am studying funeral law. What crimes are 3rd degree misdemeanors related to funeral services

Shiena DeCenso said...
This comment has been removed by the author.
Unknown said...

What is the minimum and maximum sentencing forcharged with 1 count Sale of Prescription Medications, 1 count Dispensing Prescription Medication without a License, and 1 count of Misuse of 2-Way Communication Device.