5 Differences Between Misdemeanor and Felony Probation in California

There are five main differences between misdemeanor probation and felony probation in the California criminal court process. Perhaps the biggest difference is that while misdemeanor probation is typically available for defendants with a misdemeanor conviction, felony probation is available to persons that were convicted of felony offenses.

Other differences include that, in comparison to felony probation, misdemeanor probation:

1. does not involve probation reports,
2. is shorter in terms of duration,
3. does not involve a probationer reporting to a probation officer, and
4. provides probationers more opportunities to travel.

Note that misdemeanor probation is also referred to as “summary probation.”

Felony probation is also referred to as “formal probation.”

Both types of programs allow an offender to serve most, or all, of their sentence under court supervision instead of custody in either:

• county jail, or
• state prison.

Are summary probation and formal probation available to the same types of criminal offenses?

Summary probation and felony probation are not available to the same types of offenders.

Almost anyone convicted with misdemeanor charges can receive summary probation in California.

The purpose of this type of probation is to:

• protect the public,
• restore the victim, and
• rehabilitate the offender.¹

Courts, therefore, typically give summary probation to first-time and juvenile offenders. But even people with prior convictions may be eligible for it. A judge is likely to grant misdemeanor probation if a defendant will take advantage of a second chance.

Felony probation, on the other hand, is afforded to certain people convicted of felony charges (not misdemeanor charges). But note that not all people with felony convictions are eligible for this type of probation.

Whether or not a convict is eligible for formal probation depends on such factors as:

• the seriousness of the felony offense committed,
• whether the defendant was armed,
• the victim’s character,
• the degree of monetary loss to the victim,
• whether the defendant’s crime involved a complex plan,
• the accused’s attitude about probation, and
• the defendant’s prior criminal record before the felony conviction.²

Do both misdemeanor and felony probation use probation reports?

Only felony probation uses probation reports.

Prior to awarding a defendant with formal probation, a judge must order a probation report from the county probation department. The judge reviews and considers this report before imposing the sentence.

In drafting the report, the department evaluates the defendant’s eligibility and then recommends:

• the appropriateness of probation, and
• the length and conditions of probation.³

In the end, the judge makes the final decision as to whether to grant probation. The probation report serves as a tool to help the judge make this decision.

In most misdemeanor cases, the judge does not request a probation report. An exception is misdemeanor cases involving sex crimes.⁴

Are summary and formal probation imposed for the same amount of time?

Summary and formal probation are imposed for different periods of time.

With a misdemeanor offense, summary probation typically lasts for between one and three years in California. During that time, the defendant must comply with certain conditions, such as:

• attending counseling,
• undergoing drug testing,
• paying restitution, or
• performing community service.

In felony cases, formal probation is typically imposed for between three and five years. As with misdemeanor probation, a probationer must adhere to certain conditions of probation.

Do both misdemeanor and felony probation involve the use of probation officers?

Only felony probation incorporates the use of probation officers.

Once a person is placed on felony probation, he/she most likely must meet with a probation officer. The role of the officer is to verify:

• where the felon is living and with whom, and
• where the felon is employed and his/her work schedule.

Probation officers also check to ensure that a probationer is not in violation of probation.

California criminal law says that probation officers are not necessary for summary probation for misdemeanor crimes.

A defendant on misdemeanor probation, though, may have to return to court periodically to meet with the judge and give a “progress report.”

During this meeting, the judge will:

• review the offender’s case and criminal convictions (e.g., disorderly conduct or domestic violence convictions),
• ask questions about his or her progress, and
• discuss any specific problems.

A failure to appear (“FTA”) at a scheduled meeting is a violation of probation. It will result in the judge issuing a bench warrant for the defendant’s arrest.

Are probationers allowed to travel while on misdemeanor and felony probation?

Travel opportunities are different under each type of probation.

People on misdemeanor probation generally face no restrictions on travel.

Note, though, that defendants remain obligated to comply with all their probation conditions. Sometimes compliance with these conditions make it difficult for the probationer to leave the state.

Prior to traveling, a convict on summary probation should consult with his/her criminal defense attorney to make sure he/she will not commit a violation by traveling.

A probationer can also petition the court to modify his/her probation terms so that he/she can travel or relocate.

Felony probation often involves restrictions on moving and traveling.

In general:

• if a probationer wants to move, he/she must first get court approval, and
• if a probationer wants to travel, he/she must first get the parole officer’s consent.

As to moving, it is a good idea for probationers to consult with criminal defense lawyers prior to going to court. A lawyer will most often provide a person with a free consultation that will explain the best steps a felon should take to make sure his/her rights are protected.

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Legal References:

1. California Penal Code Section 1202.7 PC.
2. California Rules of Court 4.414.
3. California Penal Code Section 1203b PC.
4. See same.