Felonies and Misdemeanors in Massachusetts

Massachusetts defines a felony by the punishment the statute authorizes, not by the sentence a judge imposes. Under M.G.L. c. 274, § 1, “[a] crime punishable by death or imprisonment in the state prison is a felony. All other crimes are misdemeanors.”

Section 1 therefore classifies an offense according to the maximum punishment the statute authorizes. A state-prison alternative makes the offense a felony even if the judge ultimately imposes probation or no incarceration. An offense punishable only by a house-of-correction sentence, a jail term, or a fine is a misdemeanor even if the judge imposes two and a half years in the house of correction.

The classification depends on whether the statute authorizes a state-prison sentence. The trial court, the actual sentence, the immigration treatment, firearms eligibility, any professional reporting duty, CORI access, and eligibility for sealing do not depend on the classification alone.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201.

Reading the Punishment Clause

A person can classify an offense by reading the penalty provision of the statute that defines it.

An offense is a felony if the statute authorizes imprisonment in the state prison. Larceny of property worth more than $1,200 is punishable by state prison for up to five years, so it is a felony. Strangulation or suffocation under M.G.L. c. 265, § 15D is punishable by state prison, so it is a felony.

An offense is a misdemeanor if the statute authorizes only a house of correction or jail sentence, or only a fine. Larceny of $1,200 or less is punishable by jail for up to one year, so it is a misdemeanor. Resisting arrest is punishable by up to two and a half years in a jail or house of correction, so it is a misdemeanor despite that substantial exposure.

Some statutes authorize either a state prison term or a house of correction term for the same offense. An offense punishable by either a state prison term or a house of correction term is a felony, because the statute authorizes a state prison sentence.

Which Court Hears the Case

Which trial court hears the case does not depend on the Massachusetts felony or misdemeanor label alone. The District Court, the Boston Municipal Court, and the Superior Court have different jurisdiction and sentencing authority. The page on Massachusetts courts, state prison, and house of correction explains which court hears each kind of case.

Sentencing and Where a Sentence Is Served

A state-prison sentence places the defendant in the Department of Correction system. A house-of-correction sentence places the defendant in a county correctional system. The judge imposes a sentence within the authority provided by the offense statute and the trial court. Correctional authorities determine the particular placement and classification.

A felony classification does not itself require incarceration. The statute defining the particular offense governs which nonincarcerative or suspended dispositions remain available.

Criminal Records

After arraignment in a misdemeanor or felony case, the charge appears in CORI regardless of the later disposition. CORI is not open to the public at large. The CORI statute, M.G.L. c. 6, §§ 167 to 178L, and the Department of Criminal Justice Information Services regulations at 803 CMR 2.00 govern what a particular requester receives.

Classification affects the conviction-sealing waiting period. Under M.G.L. c. 276, § 100A, an otherwise eligible misdemeanor conviction may be sealed after at least three years and an otherwise eligible felony conviction after at least seven years, including any period of incarceration or custody.

Section 100C requires sealing of a not-guilty finding, no bill, or no-probable-cause finding unless the defendant objects. Sealing a dismissal requires a petition and a judicial finding that substantial justice would best be served. Section 100C imposes no waiting period.

See criminal records and outcomes and sealing and expungement.

Voting

A Massachusetts felony conviction does not by itself cost a person the right to vote.

M.G.L. c. 51, § 1 qualifies “[e]very citizen eighteen years of age or older, not being a person under guardianship or incarcerated in a correctional facility due to a felony conviction.” The disqualification is tied to incarceration for a felony conviction, not to the conviction itself.

A person serving probation can vote. A person on parole, being no longer incarcerated, can vote. A person incarcerated on a misdemeanor can vote. A person released after serving a felony sentence can vote, and should confirm current registration, because a person removed from the voter list while incarcerated needs to register again.

Immigration

Massachusetts classification and federal immigration categories are different systems. The federal immigration category depends on federal definitions, not on the Massachusetts felony or misdemeanor label.

Immigration authorities ask whether a conviction falls within a category federal law defines, including a crime involving moral turpitude, an aggravated felony under 8 U.S.C. § 1101(a)(43), a controlled-substance offense, a firearms offense, or a crime of domestic violence. The federal categories depend on the elements of the offense and, for some categories, the sentence imposed. A Massachusetts misdemeanor can qualify as an aggravated felony if it falls within a federal aggravated-felony category that uses a one-year sentence threshold and the court imposes at least one year, including a suspended term. A Massachusetts felony may fall outside every federal category.

Federal law also provides its own definition of a conviction, 8 U.S.C. § 1101(a)(48)(A). Under that definition, a continuance without a finding counts as a conviction when the judge orders some form of punishment, penalty, or restraint on the defendant’s liberty, even though Massachusetts law treats it otherwise.

A noncitizen should have immigration counsel review a proposed disposition before accepting it. See immigration consequences of Massachusetts criminal charges and criminal convictions for immigrants and visa holders.

Firearms

Massachusetts and federal firearms laws contain their own definitions and disqualifying events. The question whether a person may possess a firearm or qualify for a Massachusetts firearms license does not depend on the Massachusetts felony or misdemeanor label alone. See firearms and weapons charges in Massachusetts.

Professional Licenses

Licensing authorities set their own rules. A licensing authority’s rules do not depend on the felony and misdemeanor distinction alone. Each licensing authority decides which events a licensee must report, and sets its own form and deadline.

A Massachusetts attorney must notify bar counsel within ten days of a conviction under S.J.C. Rule 4:01, § 12(8). Rule 4:01 defines conviction to include an admission to sufficient facts. FINRA asks about certain criminal charges when they are filed. Other boards ask at renewal. What the person must disclose depends on the wording of the profession’s rule or form.

See criminal defense for licensed professionals.

Clerk-Magistrate Hearings

Under M.G.L. c. 218, § 35A, a court ordinarily must give a person who was not arrested notice and an opportunity to be heard before it issues process on a misdemeanor complaint application, subject to the statute’s exceptions. The statute also permits a hearing on a felony complaint application when a law-enforcement officer requests one.

The question whether a clerk-magistrate hearing occurs depends on how the case began and on the statutory exceptions. A person arrested at the scene ordinarily proceeds to arraignment. No complaint, arraignment, or CORI entry results from a complaint application that the clerk-magistrate denies after a hearing. A police report of the incident can still exist.

See Massachusetts clerk-magistrate hearings.

Contact With Witnesses

A defendant who contacts a complaining witness risks a separate charge. Intimidation of a witness under M.G.L. c. 268, § 13B is a felony. The statute covers conduct directed at interfering with a criminal investigation or proceeding.

Asking a complainant to drop a case is not automatically witness intimidation. The Commonwealth must prove the conduct and intent that the statute defines. A defendant should direct any necessary communication through counsel because personal contact can create evidence or lead to a new allegation.

See intimidation of a witness and the witness intimidation FAQs.

What Depends on the Classification, and What Does Not

Two consequences addressed on this page depend directly on the classification, namely whether § 100A applies a three-year or seven-year conviction-sealing period and whether a person incarcerated for the conviction may vote. The classification itself depends on whether the statute authorizes a state-prison sentence.

Other consequences do not depend on the classification alone, namely which court hears the case, the sentence the judge imposes within the governing statute, federal immigration treatment, firearms eligibility, professional reporting, and whether the record satisfies every sealing requirement.

Clients often need to know how a charge may affect employment, immigration status, a professional license, or CORI. The answer depends on the rules governing employment, immigration status, professional licenses, and CORI, not on the Massachusetts offense label alone.

Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.

Related Page

• Rights and Legal Concepts in a Massachusetts Criminal Case