What Is a Class Six Undesignated Felony?
Simply put, a class six undesignated felony (also known as a class six open) is a felony conviction that can be turned into a misdemeanor by the court. One way to think about it is to remember that all felonies are presumptively “designated” or unable to be brought up or down on the scale of seriousness. This means that they are closed cannot be messed around with following a conviction and sentencing. It is in this same way that a class six “open” is left undesignated until it’s designated a misdemeanor by the court.
So, are they misdemeanors, or felonies?
The answer is it depends. While the charge is a designated charge, it is what it is—either a designated felony or a designated misdemeanor. While the charge is undesignated, it is both a felony and a misdemeanor. The real question becomes for what purposes is it treated as a felony and for what purposes is it treated as misdemeanor?
If you’re interested in a deep dive, look at the old version of the law and then open a new window and look at the new version of the law next to it. It will be easier to spot the differences this way and will help you better understand for what purposes a class six undesignated felony is treated as a misdemeanor or a felony.
The old version of the law can be found here.
The new version of the law, as it is effective now, can be found here.
What’s the difference between the old version of the law and the new version of the law? When you look at the two versions side by side, it looks like there is quite a bit that has changed. Notably, there is one key difference that really stands out, and that is how the undesignated charge is treated when it is still undesignated. When a person is first sentenced, the charge is labeled a “class six felony.” While the charge is in the undesignated phase, before the new law, it was treated as a felony. But now the language demands that it be treated as a misdemeanor from the outset.
“The offense shall be treated as a misdemeanor for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor or a felony.”
That said, and like most things in the legal world, there are exceptions. For example, the undesignated charge is considered a felony for purposes of a person’s right to possess a firearm. This is really important!Even though it seems like a fine line, if a person with a class six undesignated felony that hasn’t been designated a misdemeanor is caught with a firearm—it’s a class 4 felony and now it will be with a prior conviction—which will make prison time mandatory for that person id convicted. However, while a class six undesignated felony is pending a misdemeanor designation a person may say that they have never been convicted of a felony on a job application and/or an application for housing. This change is HUGE and will undoubtedly benefit a lot of people. You can find the rest of the exceptions in ARS 13-604(B).
Are all class six felonies undesignated?
The answer is no. The charge that is sentenced itself must say “Class Six Undesignated Felony” for the court to recognize that the felony can later be turned into a misdemeanor offense. The language in the plea agreement is important here. In some situations, a person may not have to earn the misdemeanor designation—it can be designated by the court at sentencing. In other words, sometimes you do not have to wait to complete the terms of the sentence to have the undesignated felony designated to a misdemeanor.
Other times (and most times) the misdemeanor designation must be earned by the accused by completing probation, paying fines and/or completing classes. Once everything has been completed that the court ordered, only then the court will designate the offense a misdemeanor. Again, the language in the plea agreement is vital on this point. An Arizona criminal defense attorney like myself can help distinguish this point during a free consultation.
What about my rights?
When a class six undesignated felony is designated a misdemeanor, a person’s civil rights are restored as if there was never a felony conviction. This includes the right to vote, the right to possess a firearm (or other deadly weapon), the right to sit on a jury (a right some of us wish we didn’t have) and the right to hold public office. This can also have implications with the requirements to have the conviction eventually expunged. You can learn more about that here.
How do you get a class six undesignated felony? Can you get one if the original charges are not a class six felony?
Generally speaking, class six undesignated felonies are negotiated for while criminal proceedings are ongoing. Once a person is charged with a felony, a good defense attorney will gather all the mitigating circumstances that they can and put it together in a nice package to deliver to the prosecution to try to persuade them to offer a class six undesignated felony. Now, these requests are not always granted and not all charges can be pled all the way down to an undesignated offense. The more serious the underlying charges, the less likely it is you will receive an offer to a class six undesignated felony.
Either way, it is important to know your options and to fight for the best possible result. Hiring the right criminal defense attorney to achieve this result is critical. Find a lawyer that is passionate about criminal defense and that is knowledgeable on the class six undesignated laws. As mentioned before, I was involved in the drafting process and have a deep understanding of this law and all of Arizona’s sentencing laws. You can reach me 24/7 at (480) 363-0090.
