When is a felony not a felony? The Colorado Court of Appeals answered that question last week.In Colorado, a misdemeanor is punishable by up to two years in a county jail (or less for less serious offenses). A felony is punishable by a year or more in state prison and has far more collateral effects, like disqualification from gun ownership, ineligibility for licenses, and consideration in habitual criminal sentencing for later felonies.
Defendants in felony cases are entitled to a variety of pro-defendant procedures, such as a larger jury and the opportunity to test the evidence of the charges in a preliminary hearing prior to trial, that are not available for people accused of misdemeanors.
But in Colorado, some crimes, including simple assaults involving domestic violence, that are usually misdemeanors, are treated as felonies at sentencing in cases involving habitual offenders. Do these crimes receive the more elaborate procedures applicable to felonies, or the streamlined procedures applicable to misdemeanors?
The Colorado Court of Appeals held last week that misdemeanors treated as felonies for sentencing purposes because someone is a habitual offender, can still be tried with the more streamlined procedures applicable to misdemeanors, creating a class of back-door felonies. It held that in these cases, the offense is a misdemeanor with more severe than usual consequences rather than a true felony.
This may be a distinction without a difference for the defendant.
The U.S. Constitution has little impact on the case. Most rights of criminal defendants under the U.S. Constitution limited to felony defendants, such as the right to trial by some jury, apply whenever the maximum punishment is more than six months in jail. Almost all rights that the U.S. Constitution requires in felony cases, that do not involve a death sentence, are afforded to both felony and misdemeanor defendants in Colorado.