Felony vs Misdemeanor in West Virginia: Sentences and Probation

West Virginia law has only two kinds of offenses and no felony or misdemeanor classes: "Such offenses as are punishable by confinement in the penitentiary are felonies; all other offenses are misdemeanors" (W. Va. Code 61-11-1). Each offense statute sets its own term and fine, felony prison sentences are generally indeterminate up to the statutory maximum (61-11-16), probation may not exceed seven years (62-12-11), and the recidivist statute raises sentences for repeat qualifying offenses (61-11-18).

Information last verified on 2026-10-17. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers how the West Virginia Code classifies offenses and the general sentencing, recidivist, probation and revocation sections (W. Va. Code 61-11-1, 61-11-2, 61-11-16 to 61-11-19, 61-11-22a and 62-12-2, 62-12-3, 62-12-10, 62-12-11 and 62-12-13), with the homicide and larceny statutes as examples. It does not cover how every offense is graded (see the West Virginia theft laws and West Virginia assault and battery laws pages), time limits for prosecution, record clearing, magistrate or municipal court rules, traffic and ordinance penalties, or federal offenses. For every state side by side, see felony and misdemeanor classes by state.

Felony vs misdemeanor in West Virginia

W. Va. Code 61-11-1 sets the line in full:

"Offenses are either felonies or misdemeanors. Such offenses as are punishable by confinement in the penitentiary are felonies; all other offenses are misdemeanors. The word "penitentiary" as used in this section shall mean and include any and all institutions provided by the state for the confinement of persons sentenced to confinement in the penitentiary, notwithstanding that transfers of such persons from any one of such institutions to another may be authorized."

The test is the punishment the law allows, not the sentence a court actually imposes. An offense that may be punished by penitentiary confinement is a felony even when the statute lets the court choose a jail term instead, as the grand larceny statute does.

Unlike most states, West Virginia does not group offenses into lettered or numbered classes with shared sentence ranges. Article 11 of Chapter 61, the Code's general provisions on crimes, contains one classification section (61-11-1) and two general sentencing sections (61-11-16 for felonies and 61-11-17 for misdemeanors), and none of them sets a class or a general range. The term and fine come from the statute that defines each offense.

West Virginia felony and misdemeanor penalties: examples

Because there is no class table, the table below shows how the two tiers work through examples drawn from specific statutes.

These are the penalties in the offense statutes themselves. W. Va. Code 61-11-18 sets higher sentences for some repeat convictions of listed qualifying offenses, described below.

The grand larceny statute shows how the two tiers interact. Under 61-3-13(a), a person who commits simple larceny of goods worth $1,000 or more "is guilty of a felony, designated grand larceny, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and shall be fined not more than $2,500." Petit larceny, under $1,000, is a misdemeanor punished by "a term not to exceed one year or fined not to exceed $2,500, or both, in the discretion of the court" (61-3-13(b)). The West Virginia theft laws page covers the other theft offenses.

The most serious offenses

West Virginia has no death penalty: "Capital punishment is hereby abolished for all offenses against the laws of the State of West Virginia" (W. Va. Code 61-11-2). The top sentence is life imprisonment.

• First-degree murder. "Murder of the first degree shall be punished by confinement in the penitentiary for life" (61-2-2). Under 62-3-15, the person "shall not be eligible for parole: Provided, That the jury may, in their discretion, recommend mercy," in which case the person is eligible for parole under the parole article. A second proviso applies to guilty pleas: "if the accused pleads guilty of murder of the first degree, the court may, in its discretion, provide that such person shall be eligible for parole" (62-3-15).
• Second-degree murder. As amended by 2026 SB 137 (2026 Acts ch. 98, in effect June 9, 2026), 61-2-3 provides: "Murder of the second degree shall be punished by a definite term of imprisonment in the penitentiary which is not less than 15 nor more than 60 years." The person is not eligible for parole before serving 15 years or the minimum required by 62-12-13, whichever is greater.
• Voluntary manslaughter. As amended by the same act, 61-2-4 provides "a definite term of imprisonment in the penitentiary which is not less than five nor more than 25 years," with no parole before five years or the 62-12-13 minimum, whichever is greater.

Before this act, second-degree murder carried a definite term of 10 to 40 years with no parole before 10 years, and voluntary manslaughter 3 to 15 years with no parole before three years. The act states no offense-date rule for 61-2-3 or 61-2-4, unlike its parole changes in 62-12-13(c)(2)-(3), which apply to offenses committed on or after July 1, 2026.

For life sentences, the parole statute sets the minimum time before parole. An inmate sentenced for life may not be paroled until serving 10 years, or 15 years if previously twice convicted of a felony, and an inmate convicted of first-degree murder for an offense committed on or after June 10, 1994 is not eligible until serving 15 years (62-12-13(c)(1)). For offenses committed on or after July 1, 2026, those minimums become 20 years for a life sentence, 25 years for a life sentence after two prior felonies, and 25 years for first-degree murder (62-12-13(c)(2)-(3)). The West Virginia life sentence page explains life terms in more detail.

How a West Virginia sentence is set

West Virginia has no sentencing guideline grid. For most felonies the court imposes a general sentence. W. Va. Code 61-11-16 provides:

"Every sentence to the penitentiary of a person convicted of a felony for which the maximum penalty prescribed by law is less than life imprisonment ... shall be a general sentence of imprisonment in the penitentiary. In imposing this sentence, the judge may, however, designate a definite term, which designation may be considered by the board of probation and parole as the opinion of the judge under the facts and circumstances then appearing of the appropriate term recommended by him to be served by the person sentenced."

Imprisonment under a general sentence "shall not exceed the maximum term prescribed by law for the crime for which the prisoner was convicted, less such good time allowance" as the corrections statutes provide (61-11-16). Some offense statutes instead set a definite term, as the 2026 versions of the second-degree murder and voluntary manslaughter statutes do.

For misdemeanors, W. Va. Code 61-11-17 leaves the details to the offense statute or the court: the jail term "shall, unless otherwise provided, be ascertained by the court, and the amount of the fine, where the punishment is by fine, shall, except where it is otherwise provided, be assessed by the court, so far as the term of confinement and the amount of the fine are not fixed by law."

Two other provisions limit early release for firearm and drug cases:

• An inmate who committed or attempted a felony "with the use, presentment, or brandishing of a firearm is not eligible for parole prior to serving a minimum of three years of his or her sentence or the maximum sentence imposed by the court, whichever is less"; for a firearm robbery under 61-2-12, the minimum is five years or one third of a definite term, whichever is greater (62-12-13(b)(1)(C)).
• The drug kingpin sentence under 60A-4-419 "is mandatory. A person convicted of an offense set forth in this section is not eligible for probation, home incarceration, or to have his or her sentence suspended for any reason."

The West Virginia recidivist statute

W. Va. Code 61-11-18 is the state's repeat-offender law. It applies when a person is convicted of a "qualifying offense," a term the section defines by a list of offenses, and has earlier convictions. It works in three tiers:

• One prior conviction. When a person convicted of a qualifying offense is subject to imprisonment in a state correctional facility and "had been previously convicted in the United States of a crime punishable by imprisonment in a state or federal correctional facility, the court shall, if the sentence to be imposed is for a definite term of years, add five years to the time for which the person is or would be otherwise sentenced. Whenever in that case the court imposes an indeterminate sentence, the minimum term shall be twice the term of years otherwise provided for under the sentence" (61-11-18(b)).
• Two prior convictions. A person "twice previously convicted in the United States of a crime punishable by imprisonment in a state or federal correctional facility which has the same or substantially similar elements as a qualifying offense" is "sentenced to imprisonment in a state correctional facility for life." Prior convictions arising from the same transaction or series of transactions count as a single offense, and the most recent prior qualifying offense may not be considered if more than 20 years have passed between the person's release from imprisonment or supervision for it and the conduct underlying the current charge (61-11-18(d)).
• Repeat murder or 61-8B-3 offense. A person convicted of first- or second-degree murder or a violation of 61-8B-3 who was previously convicted of any of those offenses, in West Virginia or elsewhere for an offense with the same or substantially similar elements, "shall be punished by imprisonment in a state correctional facility for life and is not eligible for parole" (61-11-18(c)).

The enhancement is not automatic. Under 61-11-19, it proceeds "upon an information filed by the prosecuting attorney, setting forth the records of conviction and sentence," and the court requires the person to say whether he or she is the person named. Where the conviction comes through a plea agreement, "the agreement shall address whether or not the provisions of this section and §61-11-18 of this code are to be invoked."

Separately, the parole statute provides that, except for an inmate serving a life sentence, a person "previously twice convicted of a felony may not be released on parole until he or she has served the minimum term provided by law for the crime for which he or she was convicted" (62-12-13(c)(1)).

Can a felony become a misdemeanor in West Virginia?

Some felony statutes give the court a jail option. Grand larceny, for example, may be punished by up to one year in jail instead of the penitentiary (61-3-13(a)). Because 61-11-1 classifies an offense by whether penitentiary confinement is possible, the offense remains a felony when the court chooses jail. None of the general sentencing sections in Article 11 (61-11-16 to 61-11-18) converts a felony conviction into a misdemeanor.

A different mechanism, deferred adjudication, applies after a guilty plea. Under 61-11-22a(b), "If the offense to which the plea of guilty is entered is a felony, the circuit court may defer adjudication for a period not to exceed three years. If the offense to which the plea of guilty is entered is a misdemeanor, the court may defer adjudication for a period not to exceed two years."

If the person complies with the terms, the person may withdraw the guilty plea and the matter is dismissed or, if the court and the parties agree, the person pleads guilty or no contest to a lesser offense (61-11-22a(f)). On a violation, the court may accept the plea to the original offense and sentence within its statutory penalty (61-11-22a(h)). Some charges are ineligible, among them a felony crime of violence against a family or household member and felony offenses under Articles 8B, 8C and 8D of Chapter 61 (61-11-22a(c)).

Infractions and violations

W. Va. Code 61-11-1 states that "Offenses are either felonies or misdemeanors" and sets out no third tier, so the classification statute contains no infraction or violation category. The lowest tier under that section is the misdemeanor. Traffic and municipal ordinance penalties are outside this page.

Probation in West Virginia

Who is eligible

W. Va. Code 62-12-2(a) makes eligible for probation everyone found guilty of "any felony, the maximum penalty for which is less than life imprisonment," and everyone found guilty of "any misdemeanor," and it does so "notwithstanding the provisions of §61-11-18 and §61-11-19 of this code." The statute then lists exceptions, among them:

• Listed drug offenses. "persons convicted of offenses set forth in §60A-4-409(c), §60A-4-414(b), §60A-4-416(a)(2), and §60A-4-419 are not eligible for probation" (62-12-2(a)). That proviso came from 2025 SB 196 (2025 Acts ch. 74, in effect July 11, 2025).
• Firearms. "any person who commits or attempts to commit a felony with the use, presentment, or brandishing of a firearm is not eligible for probation" (62-12-2(b)).
• Life-maximum felonies. A felony whose maximum penalty is life falls outside subsection (a).
• Sex offenses. A person convicted of a violation of 61-3C-14b, 61-8-12, Article 8A, 8B or 8C of Chapter 61, or 61-8D-5 "may only be eligible for probation after undergoing a physical, mental, and psychiatric or psychological study and diagnosis which shall include an ongoing treatment plan" (62-12-2(e)).

Timing also matters. Under 62-12-3, the court may suspend imposition or execution of a sentence and release the person on probation, "but in no case, except as provided by the following section, shall the court have authority to suspend the execution of a sentence after the convicted person has been imprisoned for sixty days under the sentence."

How long probation lasts

W. Va. Code 62-12-11 sets one limit for every probation case: "The period of probation together with any extension thereof shall not exceed seven years." The section does not distinguish felonies from misdemeanors.

Separately from probation, a person convicted of incest (61-8-12) or a felony under Articles 8B, 8C or 8D of Chapter 61 must also serve a period of supervised release of up to 50 years, and a person designated a sexually violent predator is subject to supervised release for life (62-12-26(a)).

Probation violations

W. Va. Code 62-12-10(a) separates serious violations from other ones:

• If the court or judge finds reasonable cause to believe the probationer absconded supervision, engaged in new criminal conduct "other than a minor traffic violation or simple possession of a controlled substance," or violated a special condition designed to protect the public or a victim, the court may revoke the suspension, impose sentence if none has been imposed and order the sentence executed (62-12-10(a)(1)).
• For any other violation of supervision conditions, "for the first violation, the judge shall impose a period of confinement up to sixty days or, for the second violation, a period of confinement up to one hundred twenty days. For the third violation, the judge may revoke the suspension of imposition or execution of sentence, impose sentence if none has been imposed and order that sentence be executed, with credit for time spent in confinement under this section" (62-12-10(a)(2)).
• The judge may depart from these 60- and 120-day limits "upon making specific written findings of fact supporting the basis for the departure," and, unless the violation was the commission of a felony, may instead release the person on probation again (62-12-10(c)).

Recent changes

• 2025 SB 196 (2025 Acts ch. 74, in effect July 11, 2025) created the drug kingpin offense in 60A-4-419 and amended 62-12-2 to add the listed drug offenses to the probation bar; it also amended 61-11-18.
• 2025 SB 138 (2025 Acts ch. 157, in effect June 12, 2025) created second and third or subsequent fleeing-from-an-officer offenses under 61-5-17, extended the period for which prior convictions may be used, and specified that the new offenses are qualifying offenses for recidivist sentencing.
• 2026 SB 137 (2026 Acts ch. 98, in effect June 9, 2026) amended 61-2-3 (second-degree murder, now a definite term of 15 to 60 years, previously 10 to 40) and 61-2-4 (voluntary manslaughter, now 5 to 25 years, previously 3 to 15), with no offense-date rule stated for those two sections, amended 62-3-15, and added the longer parole minimums in 62-12-13(c)(2)-(3), which apply to offenses committed on or after July 1, 2026.
• 2026 HB 4755 (2026 Acts ch. 104, in effect June 12, 2026) added aggravated vehicular homicide, driving under the influence causing serious bodily injury, third offense driving under the influence, and obstructing law enforcement, fire personnel and emergency medical personnel causing death to the recidivist statute's qualifying offenses.
• 2026 HB 5466 (in effect June 10, 2026) amended 61-11-22a, the deferred adjudication section, as part of an act renaming and setting standards for a program under Article 26 of Chapter 48.

The Legislature's bill history for the classification section (61-11-1), the general felony and misdemeanor sentencing sections (61-11-16 and 61-11-17) and the recidivist procedure section (61-11-19) lists no 2025 or 2026 act.

Related legal issues

How a specific crime is punished depends on its own statute; the West Virginia theft laws and West Virginia assault and battery laws pages cover two common groups. Whether a conviction can be cleared is covered on the West Virginia expungement laws page, and time limits for filing charges are on the West Virginia statute of limitations page.

Under federal law, a person convicted of "a crime punishable by imprisonment for a term exceeding one year" may not possess a firearm or ammunition (18 U.S.C. 922(g)(1)). The definition excludes a state offense classified as a misdemeanor and punishable by two years or less (18 U.S.C. 921(a)(20)), so because West Virginia sets misdemeanor terms offense by offense, the maximum in the specific statute matters. Separately, 18 U.S.C. 922(g)(9) bars possessing a firearm or ammunition after a conviction in any court of a misdemeanor crime of domestic violence, as 18 U.S.C. 921(a)(33) defines it, whatever the misdemeanor's maximum sentence. The felony and misdemeanor classes hub covers the federal classes.

Related

• Felony and misdemeanor classes by state
• West Virginia theft laws
• West Virginia assault and battery laws
• West Virginia expungement laws
• West Virginia life sentence
• Virginia felony and misdemeanor classes
• Ohio felony and misdemeanor classes

This article provides general legal information about West Virginia offense classification and sentencing statutes, current as of 2026-10-17. It is not legal advice. For a specific situation, contact a lawyer licensed in West Virginia.

Last updated: 2026-10-17.

Frequently Asked Questions

What is the difference between a felony and a misdemeanor in West Virginia?

An offense punishable by confinement in the penitentiary is a felony, and every other offense is a misdemeanor (W. Va. Code 61-11-1). The test is whether penitentiary confinement is possible, so an offense such as grand larceny is a felony even though the court may choose a jail term of up to one year instead (61-3-13(a)).

What are the felony classes in West Virginia?

West Virginia has none. The Code sorts offenses only into felonies and misdemeanors (W. Va. Code 61-11-1), and each offense statute sets its own term and fine; grand larceny, for example, carries 1 to 10 years (61-3-13(a)). The recidivist statute, 61-11-18, can add five years or require life for listed qualifying offenses.

How much jail time is a misdemeanor in West Virginia?

It depends on the offense statute; the Code sets no single misdemeanor maximum. Under W. Va. Code 61-11-17, the court fixes the jail term and fine so far as they are not fixed by law. Petit larceny, for example, carries up to one year in jail, a fine of up to $2,500, or both (61-3-13(b)).

Does West Virginia have infractions or violations?

Not in its general classification statute. W. Va. Code 61-11-1 states that offenses are either felonies or misdemeanors, with no third tier. This page does not cover traffic or municipal ordinance penalties.

How long is probation in West Virginia?

The period of probation together with any extension may not exceed seven years (W. Va. Code 62-12-11), for felonies and misdemeanors alike. Separately, listed sex offenses carry supervised release of up to 50 years, or life for a sexually violent predator (62-12-26). Some defendants cannot receive probation, including those convicted of a felony with a maximum of life, a felony committed or attempted with a firearm, or listed drug offenses (62-12-2).

What happens if you violate probation in West Virginia?

If the court finds reasonable cause that the probationer absconded, engaged in new criminal conduct (other than a minor traffic violation or simple possession) or violated a special protective condition, it may revoke and order the sentence executed. For other violations, the judge imposes up to 60 days of confinement for the first and up to 120 days for the second, and may revoke on the third, with credit for that confinement (W. Va. Code 62-12-10(a)). The judge may depart from those limits on specific written findings (62-12-10(c)).

What is the West Virginia recidivist law?

W. Va. Code 61-11-18 enhances sentences for listed qualifying offenses: five years added to a definite term after one prior conviction punishable by imprisonment in a state or federal correctional facility, life after two prior convictions with the same or substantially similar elements as a qualifying offense (with a 20-year limit on the most recent prior), and life without parole for a murder or 61-8B-3 conviction after a prior one. The prosecuting attorney invokes it by filing an information (61-11-19).

What is the sentence for second-degree murder in West Virginia?

W. Va. Code 61-2-3, as amended by 2026 SB 137 (in effect June 9, 2026), provides a definite term of 15 to 60 years in the penitentiary, with no parole before 15 years or the minimum required by 62-12-13, whichever is greater. The prior range was 10 to 40 years, and the act states no offense-date rule for this section. Voluntary manslaughter is 5 to 25 years under 61-2-4 (previously 3 to 15).