Aрpellant was tried before a jury on a two-count indictment. Count I alleged that appellant had conspired to sell more than 100 *894 but less than 2,000 pounds of marijuana in violation of OCGA § 16-13-33. Count II alleged that appellant had possessed with intent to distribute approximately one pound of marijuana in violation of OCGA § 16-13-30 (j) (!)• Appеllant was found guilty on Count I and was acquitted on Count II. Appellant’s motion for new trial was denied and he appeals.
1. In his first enumeration of error, appellant raises the general grounds. The evidence adduced at trial authorized a finding that appellant conspired and made the arrangements for an undercover agent to purchase 108 pounds of marijuana from a third party. However, the agreement was that both the actual delivery of the contraband and the undercover agent’s payment therefor would take place in Florida. A meeting with the purported supplier in Florida occurred. Due to the supplier’s additional demands, however, the sale was not finalized. Appellant contends that a sale of marijuana which is to take place in another state does not constitute a violation of the Georgia Controlled Substances Act. Thus, he contends that proof of a conspiracy, the object of which was the consummation of a sale of marijuana in Florida, would not constitute a violation of OCGA § 16-13-33, which criminalizes a conspiracy “to commit any offense defined in [the Georgia Controlled Substances Act].”
As noted above, appellant was indicted for
conspiring to sell
marijuana. It is true that “a sale of drugs is
complete
when the seller delivers the drugs to the feigned buyer.” (Emphasis supplied.)
Robinson v. State,
The jury was clearly authorized to find from the evidence introduced at appellant’s trial that, while in Georgia, he agreed to and made the necessary arrangements for a sale of 108 pounds of marijuana. Had the arranged sale actually taken place, the crime of trafficking in marijuana as it is defined in OCGA § 16-13-31 (c) would have occurred. That crime would have been at least partly committed in Georgia because, based upon aрpellant’s conduct in this state, he would have been the procuring agent of that sale. Thus, the evidence authorized a finding that appellant’s conduct in Georgia was in furtherance of a conspiracy to commit an offense defined in the Georgia Controlled Substances Act, which offense would have been within thе jurisdiction of this state to punish as such. “[0]ne commits a conspiracy ‘when he together with one or more persons conspires to commit a crime
and
any one or more [of] such persons does any overt
act
to effect the object of the conspiracy.’ ” (Emphasis in original.)
Hammock v. Zant,
2. The evidencе would have authorized a finding that, prior to the unsuccessful finalization of the sale in Florida, one of appellant’s co-conspirators gave the undercover agent approximately one pound of marijuana as “good will,” with the understanding that it was to be applied toward the 108 pounds that he wished to buy. Appellant contends that this evidence shows that the “lesser included offense” of possession of marijuana had been completed and that, for this reason, the guilty verdict for conspiracy to commit the “greater offense” of trafficking cannot stand.
The law does not provide that a mere showing of a comрleted lesser included offense will serve to preclude a verdict of guilt for conspiring to commit the greater crime. What the law does provide is that a
verdict
of guilt as to the
completed
crime will preclude a verdict of guilt for conspiring to commit
that
crime, since the conspiracy to commit an offense merges into the actually completed offense. See generally
Crosby v.
State,
3. Appellant also contends that the verdict of guilty as to conspiring to traffick in mаrijuana is inconsistent with the verdict of not guilty of possession of one pound of marijuana with intent to distribute. Based upon our review of the record, we find no “irreconcilable conflict” in the verdicts. See generally
Jones v. State,
4. “[I]f it appears that the intent to commit the crime did not originate with the accused but was suggested by the person present with him, with the knowledge and approval of the victim, the proseсution will . . . fail. [Cits.]”
Dalton v. State,
Dalton
does not hold that one may not be convicted merely because the crime was first suggested by another. What
Dalton
does hold is that one may not be convicted if the
intent
to commit a crime did not originate with him but arose solely from the suggestion of another.
Dalton
has consistently been interpreted to mean that “[w]here one is suspected of being a violator of the law, a trap may be set, and the suspected person given such opportunity to violate the law as would be usual and ordinary under the circumstances. [Cits.]”
Bienert v. State,
5. During the State’s opening statement, appellant moved unsuccessfully for a mistrial, contending that his character had been imper *897 missibly placed into issue. Appellant asserts the denial of the motion was erroneous.
The statement at issue did not constitute a direct comment on appellant’s character. Instead, it concerned an objective principle of law, to wit, entrapment, which principle the State apparently anticipated would be an issue in the ensuing trial. In response to appellant’s motion, the trial court instructed the jury that the State’s opening statement was not evidence and directed the assistant district attorney “to avoid that line of argument in opening statement.” The trial court’s refusal to grant further relief in the form of a mistrial was not erroneous. See
Daniels v. State,
6. The undercover agent was called as a witness for the State. During his testimony, the witness related a statement which had been made to him by appellant during the course of the conspiracy. Appellant objected that this testimony was not relevant to any issue and was calculated to inflame the jury. The trial court overruled the objection and refused to strike the testimony. This ruling is enumerated as error.
As noted, the contested testimony concerned a statement made by appellant himself in the course of the conspiracy for which he was being tried. Although it was somewhat cryptic in parts, the statement attributed to appellant apparently was merely an explanation of his relationship with his “girls,” the female members of the alleged conspiracy, one of whom was his wife and the other of whom he called his “girl-friend.” Thus, the testimony was not entirely devoid of connection to the issue before the jury, because it could be found to be indicative of the existence of a viable close-knit conspiracy with the intent and ability to traffick in marijuana. Compare
Camp v. State,
7. Appellant contests the legality of his sentence, which was eight years to serve and a $12,500 fine. Appellant contends that the imposition of a fine is totally unauthorized as punishment for conspiracy to traffick in marijuana. He also contends that his sentence to serve eight years of imprisonment should be reversed because the trial *898 court erroneously misconstrued the extent of the discretion that it had in imposing a sentence for conspiracy to traffick in marijuana.
The general sentencing provision for the substantive crime of drug trafficking provides for “imprisonment for not less than five years nor more than 30 years and ... a fine not to exceed $500,000.00.” OCGA § 16-13-31 (f). The authorized sentence for trafficking in more than 100 but less than 2,000 pounds of marijuana is “a mandatory minimum term of imprisonment of five years and ... a fine of $25,000.00.” OCGA § 16-13-31 (c) (1). The general provision for sentencing a defendant convicted of conspiracy to commit a felony provides for imprisonment “for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed, by one-half the maximum fine to which he could have been subjected if he had been convicted of such crime, or both.” OCGA § 16-4-8. Thus, if sentencing for the conspiracy for which appellant was convicted was controlled by the general provisions of OCGA § 16-4-8, a sentence of up to 15 years and/or a fine of $12,500 would be authorized.
OCGA § 16-4-8 is not, however, the applicable sentencing provision in the instant case. OCGA § 16-13-33 is. “[T]he most reasonable interpretation of thе legislative intent in enacting [OCGA § 16-13-33] was to supplant the general punishment provision . . . with a specific (and potentially more harsh) punishment provision for attempt or conspiracy to possess controlled substances.”
Davis v. State,
Turning to appellant’s sentence of imprisonment, our review of the transcript reveals that the trial court concluded that, for a conviction under OCGA § 16-13-33, it had no discretion to impose any sentence of less than 5 years. As noted, OCGA § 16-13-33 providеs for “harsher” sentencing insofar as the defendant faces the possible im
*899
position of the same
maximum
term of imprisonment as would be applicable to the substantive crime. See
Price v. State,
supra. OCGA § 16-13-33 does
not,
however, specify that the mandatory
minimum
terms of OCGA § 16-13-31 (c) are applicable to a sentence for conspiracy to traffick in marijuana. Moreover, OCGA § 16-13-33 does not indicate that a sentence for conspiracy to traffick in marijuana shall be imposed pursuant to the provisions of OCGA § 16-13-31 (e) (1), whereby a sentence for the substantive crime of trafficking “shall not be suspended, probated, deferred, or withheld prior to serving the mandatory minimum term of imprisonment prescribed. ...” Accordingly, although OCGA § 16-13-33 clearly provides for a potentially “harsher” sentence of imprisonment, we do not construe that statute as requiring that the trial court impose a mandatory minimum term of imprisonment, or as denying to the trial court the discretion it would otherwise have in determining whether the sentence it imposes is to be served entirely in prison. “If a statute increasing а penalty is capable of two constructions, it should be construed so as to operate in favor of life and liberty. [Cit.]”
Knight v. State,
Appellant was sentenced to serve eight years, a term of imprisonment well within the 30-year maximum imposable sentence under OCGA §§ 16-13-33 and 16-13-31 (f). However, the transcript indicates that the trial court sentenсed appellant pursuant to an erroneous understanding that its discretion in the matter was limited. Indeed, it would appear likely that the trial court based its sentence of appellant upon the inapplicable provisions of OCGA §§ 16-4-8 and 16-13-31 (c) (1) rather than the controlling statute, OCGA § 16-13-33. As noted above, the trial court, did have discretion to consider any sentence of less than 30 years, and was not limited to imposing one of at least 5 years. It also had discretion to consider a sentence which did not consist entirely of imprisonment. Because it appears that the trial court failed to exercise his discretion in this regard, we believe justiсe would best be served by reversing appellant’s 8-year sentence and by remanding the case for resentencing not inconsistent with this opinion. “This court has held repeatedly that the failure to exercise discretion when the law vests discretion in a judge, is reversible error. This is made very clear in those cases where thе judge lets it be known that he does not think he has any discretion, as was the situation here.”
Brown v. State,
8. Appellant’s judgment of conviction is affirmed. Appellant’s sentence is reversed and the case is remanded to the trial court with direction that appellant be resentenced in accordance with this opinion. See generally Olson v. State, supra.
Judgment affirmed as to conviction and reversed and case re *900 manded as to sentence.