Felony Stalking vs. Misdemeanor Stalking

Often times the prosecution over charges a crime. Luckily, a good criminal defense attorney can sift through the facts and bring the error to light.

Honestly, I don't think the state of Oklahoma purposefully tries to trump up criminal accusations on a regular basis. Don't get me wrong: there are definitely prosecutors I have dealt with that will do whatever they can to get the most bang for their buck when filing a criminal complaint, but generally prosecutors try to match the facts to the law as best as they can.

Sometimes an oversight as to the facts, or just plain confusion, can easily lead to what normally would be a misdemeanor being charged as a felony instead.

This is often true in the case of stalking allegations. In Oklahoma, stalking can either be charged as a misdemeanor or a felony.

Stalking should normally be charged as a misdemeanor if a person knowingly and willingly harasses another person in a way that would cause a reasonable individual to feel "frightened, intimidated, threatened, harassed, or molested..." and that individual is actually feels "terrorized, intimidated, threatened, harassed, or molested."

A person facing misdemeanor stalking charges will face up to 1 year in county jail and/or a fine of up to $1,000.00.

Conversely, stalking should only be charged as a felony if the person committing the act of stalking:

  • has a permanent or temporary restraining order against them previously filed by the victim of the conduct;
  • is on probation or parole with conditions that prohibit contact with the victim;
  • has, within 10 years proceeding the current conduct, completed a sentence from a conviction resulting from a crime involving a threat of violence against the victim or the victim's immediate family;
  • commits a second act of stalking within 10 years of the completion of the sentence for the first act of stalking; or
  • has a prior conviction for stalking and then makes contact with a person whom has a protective order against the person.

Anyone who is charged with felony stalking under the above-referenced facts will face up to 5 years in prison and/or a fine of up to $2,500.00.

Moreover, anyone who commits a third or further subsequent act of stalking within 10 years of completing the sentence for the prior conviction of stalking will face up to 10 years in prison and/or a fine of up to $5,000.00.

As you can see, there is a huge discrepancy between the punishment for misdemeanor and felony stalking. I've seen situation where the victim filed for, and received, a temporary protective order on the date that the alleged stalking occurred. As a result of the allegations happening on the same date that the temporary protective order was granted, the prosecution mistakenly filed the case as a felony.

Luckily, the defendant was smart enough to hire an attorney knowledgeable in the law and willing to review the actual facts. We were able to get the case amended to a misdemeanor. The defendant was able to keep from becoming a convicted felon.

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