Safe Havens

(B)  Three Factors Determining Whether a Conviction is a Felony.  There are three factors that can contribute to the conclusion that a conviction is a felony conviction: (1) the level of the offense if it had been prosecuted in federal court (“hypothetical federal prosecution test”); (2) whether the convicting jurisdiction labels it as a felony or misdemeanor; and (3) the maximum sentence to custody possible for the conviction under the law of the jurisdiction of conviction. See § 7.19, supra.

            In some states, such as Arizona and California, it is possible for the sentencing court to set the level of the offense as a felony or a misdemeanor.  If the court sets the level of the offense as a misdemeanor, that can contribute the state label factor to a conclusion that the conviction is a misdemeanor rather than a felony. 

            Similarly, the setting of the level of the offense as a misdemeanor rather than a felony can affect the maximum possible custodial sentence — the second factor that can contribute to a conclusion that a conviction is a misdemeanor rather than a felony.  In states in which the maximum sentence for a misdemeanor is one year or less in custody, setting the level of the offense as a misdemeanor can create a misdemeanor sentence under the federal standard: an offense is a misdemeanor if the maximum is one year or less, and a felony only if the maximum is in excess of one year.

            The third factor — whether the offense would have been a misdemeanor rather than a felony if it had been prosecuted in federal court — is unaffected by the state court action in designating a conviction as a misdemeanor rather than a felony.