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What's the difference between a misdemeanor and a gross misdemeanor?

Posted by Neil Shouse | Apr 09, 2019 | 0 Comments

Three differences between misdemeanor crimes in Nevada and gross misdemeanor crimes in Nevada are:

  1. the standard penalties they carry,
  2. whether defendants have the right to a jury trial, and
  3. how long defendants need to wait to get a conviction sealed from their criminal record

Difference

Misdemeanors versus

Gross Misdemeanors in Nevada

1) Standard penalties

Misdemeanor convictions:

  • Up to $1,000 in fines, and/or
  • Up to 6 months in jail

Gross misdemeanor convictions:

  • Up to $2,000 in fines, and/or
  • Up to 364 days in jail

2) Right to a jury trial

Misdemeanor charges:

  • Defendants have no right to a jury trial, just a bench trial

Gross misdemeanor charges:

  • Defendants do have a right to a jury trial

3) Waiting time to get a record seal

Misdemeanor convictions:

  • 1 year after the case ends

Exceptions:

  • 2 years after the case ends for battery, harassment, stalking or violation of a protection order
  • 7 years after the case ends for DUI or battery domestic violence

Gross misdemeanor convictions:

  • 2 years after the case ends

Nevada misdemeanors

Misdemeanors are the least serious class of crime in Nevada. Even minor traffic violations are considered misdemeanors (not infractions like in California).

Common examples of Nevada misdemeanors include:

  • first or second offenses of driving under the influence
  • first or second offenses of battery domestic violence
  • shoplifting less than $650 worth of goods ("petty larceny")
  • soliciting prostitution
  • trespass
  • smoking marijuana in public

As the least serious class of offense, misdemeanors carry a maximum penalty of:

  • six (6) months in jail, and/or
  • $1,000 in fines

It is rare for judges to impose jail for a first-time offense.

If a defendant wishes to go to trial on a misdemeanor charge, the defendant may not have a jury trial. This is because the constitutional right to a jury only applies when the defendant faces more than six (6) months in jail. However, the defendant does have the right to a bench trial, where the judge determines the verdict.

With some exceptions, people convicted of misdemeanors can petition the court to seal their criminal record after one (1) year has passed since the case ended. However, there is a two (2) year wait time to seal misdemeanor convictions of:

  • battery,
  • harassment,
  • stalking, and
  • violation of a protection order

And the waiting time is seven (7) years for misdemeanor convictions of:

  • first or second offense of DUI, and
  • first or second offense of BDV (battery domestic violence)

Nevada gross misdemeanors

Gross misdemeanor crimes are more serious than misdemeanors but less serious than felonies in Nevada. Common gross misdemeanors include:

  • first offense of open or gross lewdness
  • first offense of indecent exposure
  • false imprisonment (if it was not committed by a prisoner, with a deadly weapon, or to avoid arrest)
  • second or subsequent offense of stalking
  • unlawful use of a hotel key

The maximum penalties for gross misdemeanors are twice that of misdemeanors:

  • 364 days in jail, and/or
  • $2,000 in fines

Defendants accused of a gross misdemeanor have the right to a trial by jury. But they can also choose to have a bench trial instead, where a judge and not a jury decides the verdict.

People convicted of gross misdemeanors must wait two (2) years after the case ends to pursue a record seal.

Note that some Nevada crimes are "wobblers," which means they can be either gross misdemeanors or felonies. Examples of Nevada wobblers include:

  • attempted battery (causing substantial bodily harm without a deadly weapon)
  • attempted grand larceny (if the value of the property is from $650 to under $3,500)
  • attempted drug possession (first offense)

Felony punishments carry at least one (1) year in Nevada State Prison, though it may be possible to receive probation in lieu of incarceration.


Legal References:

NRS 193.140  Punishment of gross misdemeanors.  Every person convicted of a gross misdemeanor shall be punished by imprisonment in the county jail for not more than 364 days, or by a fine of not more than $2,000, or by both fine and imprisonment, unless the statute in force at the time of commission of such gross misdemeanor prescribed a different penalty.

NRS 193.150  Punishment of misdemeanors.

      1.  Every person convicted of a misdemeanor shall be punished by imprisonment in the county jail for not more than 6 months, or by a fine of not more than $1,000, or by both fine and imprisonment, unless the statute in force at the time of commission of such misdemeanor prescribed a different penalty.

      2.  In lieu of all or a part of the punishment which may be imposed pursuant to subsection 1, the convicted person may be sentenced to perform a fixed period of community service pursuant to the conditions prescribed in NRS 176.087.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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