There are six classes of felonies in Virginia, with a Class 1 felony being the most serious. The crime classification of a Class 5 can land the convicted in prison for less than one year or up to ten years. A Class 5 felony is subject to lesser penalties than the first four classes, and depending on the circumstances of the crime, may even be prosecuted as a misdemeanor instead of a felony.
A "Wobbler" Crime
A Class 5 felony is figuratively known as a "wobbler" in criminal law because the crime treads a fine line between misdemeanor and felony charges, depending on how the prosecution chooses to treat it. As such, the penalties for a conviction can range widely. Wobbler crimes are also known as hybrid crimes. Although a prosecution has the choice of charging a Class 5 wobbler crime as a misdemeanor or a felony, a judge or jury can also tip the scale, sentencing a wobbler as a misdemeanor or felony, depending on how they choose to treat the conviction.
Difference in Punishment
When treated as a misdemeanor, a Class 5 felony can result in either up to one year in jail and no more than $2,500 fine, or both. If convicted as a felony, a Class 5 results in one to 10 years in prison. Having a Class 5 felony reduced to a misdemeanor can not only save the convicted significant jail time, it is much easier to set aside or remove a misdemeanor conviction than a felony.
Class 5 Felony Examples
Typical crimes that fall into the Class 5 felony category include battery, involuntary manslaughter and extortion. Other examples of wobbler offenses include certain DUI charges resulting in serious harm or death, theft and receiving stolen property, burglary, willful neglect and domestic violence.
Because a Class 5 felony is the least serious of felonies in Virgina, you may benefit from consulting an attorney to defend you when charged with a wobbler crime; however, the presence of aggravating factors in your case may cause your crime to be elevated to a felony. You might have a better chance of having your wobbler sentenced as a misdemeanor – avoiding prison – with strong legal representation and the absence of aggravating factors. Examples of aggravating factors which could elevate the perceived severity of your crime include: alcohol or drug involvement, serious bodily injury or death to the victim; whether the victim is a woman, child or law enforcement; and possession of a gun during the crime.