2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-33. Attempt or Conspiracy to Commit Offense Under This Article

Any person who attempts or conspires to commit any offense defined in this article shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

(Code 1933, § 79A-812, enacted by Ga. L. 1974, p. 221, § 1.)

- For article surveying developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981).

JUDICIAL DECISIONS

Legislative intent.

- Most reasonable interpretation of the legislative intent in enacting O.C.G.A. § 16-13-33 was to supplant the general punishment provision for criminal attempt found in O.C.G.A. § 16-4-6. Davis v. State, 164 Ga. App. 633, 298 S.E.2d 615 (1982).

- Threshold requirement of concurrent jurisdiction in O.C.G.A. § 16-1-8(c) was met in the defendant's state prosecution because the Georgia crimes of manufacturing, delivering, or selling a controlled substance and attempt, O.C.G.A. §§ 16-13-30(a) and16-13-33, were counterparts to the defendant's federal convictions under 21 U.S.C. §§ 841(b)(1)(C) and 846. Calloway v. State, 303 Ga. 48, 810 S.E.2d 105 (2018).

§§ 16-4-6 and16-13-33 are mutually exclusive. - O.C.G.A. § 16-13-33 does not affect operation of O.C.G.A. § 16-4-3, but rather it renders O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq. Davis v. State, 164 Ga. App. 633, 298 S.E.2d 615 (1982).

O.C.G.A. § 16-13-33 renders O.C.G.A. § 16-4-6 inapplicable in prosecutions under the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., because if a crime is penalized by a special law, the general provisions of the penal code are not applicable; accordingly, there is no merit to the assertion that O.C.G.A. § 16-13-33 contravenes the rule of lenity, and the trial court did not err in imposing a sentence for marijuana convictions under that provision rather than O.C.G.A. § 16-4-6. Woods v. State, 279 Ga. 28, 608 S.E.2d 631 (2005).

Phrase, "Any person who . . . conspires," means any person who commits a conspiracy as defined by O.C.G.A. § 16-4-8. Hammock v. Zant, 244 Ga. 863, 262 S.E.2d 82 (1979).

- Former Code 1933, § 79A-812 (see now O.C.G.A. § 16-13-33) required with certainty an overt act for successful prosecution. Hammock v. Zant, 244 Ga. 863, 262 S.E.2d 82 (1979).

To be guilty of conspiracy under O.C.G.A. § 16-13-33 one or more of the conspirators must commit an overt act as required by O.C.G.A. § 16-4-8. Price v. State, 247 Ga. 58, 273 S.E.2d 854 (1981).

- Whether object of single agreement is to commit one or many crimes, it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854 (1981).

- When conspiracy contemplates commission of more than one substantive offense, and there are separate conspiracy statutes separately punishing a conspiracy to commit each offense, a separate conviction under each conspiracy statute may be authorized. Price v. State, 247 Ga. 58, 273 S.E.2d 854 (1981).

There may be multiple convictions for multiple substantive offenses committed pursuant to single conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854 (1981).

- When the defendant was convicted of trafficking in marijuana, a conviction for conspiracy to traffic in marijuana cannot also stand and the jury should be instructed that a verdict of one or the other is authorized but not both. Hardin v. State, 172 Ga. App. 232, 322 S.E.2d 540 (1984).

Conspiracy to possess marijuana with intent to distribute is not a lesser included offense of possession. Rowe v. State, 181 Ga. App. 492, 352 S.E.2d 813 (1987).

Charging the defendant with conspiracy to sell and distribute cocaine after defendant pled guilty to a substantive crime, possession of cocaine, did not constitute double jeopardy because the second prosecution required proof of facts not required on the prior prosecution. Rogers v. State, 201 Ga. App. 426, 411 S.E.2d 289 (1991).

Trial court did not plainly err by failing to instruct the jury on possession of marijuana as a lesser-included offense of conspiracy to purchase marijuana because the offense of possession of marijuana was not a lesser-included offense of conspiracy to purchase marijuana as the facts necessary to prove each offense were different. Hunter v. State, 355 Ga. App. 520, 844 S.E.2d 858 (2020).

- Because the defendant's convictions for attempt to sell oxycodone and possession with intent to distribute each required proof of a fact which the other did not, the trial court did not err in not merging the offenses and in sentencing the defendant on both. Crankshaw v. State, 336 Ga. App. 700, 786 S.E.2d 245 (2016).

- Offenses of conspiracy to traffic in marijuana and trafficking itself did not merge when conspirators first possessed the marijuana, since the "trafficking" charge involved sale of the marijuana, an act not yet completed. Meyers v. State, 174 Ga. App. 161, 329 S.E.2d 293 (1985).

Offense of selling marijuana was not complete upon defendants' leading of undercover agents to the site of the marijuana since an agreed-upon weighing, loading, and delivering had not yet occurred; thus, the substantive trafficking offense did not merge with or extinguish the conspiracy-to-traffic offense. Meyers v. State, 174 Ga. App. 161, 329 S.E.2d 293 (1985).

Charges of conspiracy to import marijuana and trafficking in marijuana could be joined for trial where the charges arose from the same conduct. Bridges v. State, 195 Ga. App. 851, 395 S.E.2d 30 (1990).

- Evidence of conversation showing that defendant was willing to be a "bigtime" cocaine dealer was erroneously admitted, but where the evidence of defendant's guilt was ample and it was highly probable that placing defendant's character in issue did not contribute to the jury's verdict, the error was not harmful. Hargrove v. State, 188 Ga. App. 336, 373 S.E.2d 44 (1988).

- Evidence that the defendant and the defendant's coconspirators arranged and attempted to purchase one kilogram of cocaine and also attempted to purchase 25 pounds of marijuana from an undercover officer and that the defendant showed the undercover officer money to make the purchases was sufficient to support the defendant's convictions for criminal attempt to traffic in cocaine and criminal attempt to traffic in marijuana. Rainey v. State, 319 Ga. App. 858, 738 S.E.2d 685 (2013).

- Evidence was sufficient to support the defendant's conviction of conspiracy to purchase marijuana because the defendant had previously gone to the seller's home to purchase marijuana, the defendant accompanied the codefendant to the seller's home when the latter went to purchase marijuana, the defendant entered the neighbor's porch with the codefendant where the seller was selling marijuana, drugs and money were visible on the porch, the defendant remained with the seller and the codefendant as they discussed the sale of marijuana for $20 and $10, and the defendant blocked the seller's friend's exit as the friend was leaving the residence. Hunter v. State, 355 Ga. App. 520, 844 S.E.2d 858 (2020).

- Sentencing provisions in O.C.G.A. § 16-13-33, not the general provisions in O.C.G.A. § 16-4-8, are applicable to the offense of conspiracy to traffic in marijuana. Raftis v. State, 175 Ga. App. 893, 334 S.E.2d 857 (1985).

- If defendants are indicted under general conspiracy statute, maximum punishment provisions of it apply, but if indictment charges, "Conspiracy to Possess and Sell Marijuana," a violation of provisions of the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., is properly charged and maximum punishment provisions of it apply. Jones v. State, 135 Ga. App. 893, 219 S.E.2d 585 (1975).

Because conspiracy to manufacture methamphetamine was a crime penalized by a special law, the general provisions of the penal code did not apply; thus, under both O.C.G.A. §§ 16-13-30 and16-13-33, which were mutually exclusive, defendant was properly sentenced to 30 years, which was the maximum sentence allowed. McWhorter v. State, 275 Ga. App. 624, 621 S.E.2d 571 (2005).

- Defendant's conviction did not have to be reversed on the ground that the indictment alleged one manner of the offense and the evidence showed another manner of the offense as the statute for trafficking in cocaine allowed possession of either pure cocaine or a cocaine mixture, and the conspiracy offense on which defendant was convicted required only that defendant conspire with others to knowingly possess cocaine and that one of the conspirators overtly acted to do so; since that evidence was present, defendant's conviction was not invalid and defendant was eligible for the maximum term for the offense which was the object of the conspiracy, trafficking in cocaine. Allison v. State, 259 Ga. App. 775, 577 S.E.2d 845 (2003).

- Although O.C.G.A. § 16-13-33 provides for the possible imposition of the same maximum term of imprisonment as would be applicable to the substantive crime, that section does not require the court to impose a mandatory term of imprisonment, or deny the court the discretion it would otherwise have under O.C.G.A. § 16-13-31 in determining whether the sentence it imposes is to be served entirely in prison. Raftis v. State, 175 Ga. App. 893, 334 S.E.2d 857 (1985).

- Fines imposed upon convictions of conspiracy to traffic in cocaine and marijuana were unauthorized and void since no part of the sentences was probated. Gonzalez v. State, 201 Ga. App. 437, 411 S.E.2d 345 (1991).

O.C.G.A. § 16-13-33 contains no provision for imposition of a fine. Gonzalez v. State, 201 Ga. App. 437, 411 S.E.2d 345 (1991).

- Even though conviction of conspiracy under O.C.G.A. § 16-13-33 did not authorize imposition of a fine, a fine up to $10,000 was authorized as a condition of probation. Washington v. State, 183 Ga. App. 422, 359 S.E.2d 198 (1987).

Imposition of $100,000.00 fine as condition of probation was invalid, illegal and void for the reason that, since the offense of attempted trafficking in cocaine is punishable by imprisonment but contains no provision for a fine, the maximum fine which could be imposed as a condition of probation was $10,000.00. Holbert v. State, 177 Ga. App. 461, 340 S.E.2d 25 (1986).

- When the clear language of O.C.G.A. § 16-13-33 precludes the imposition of a fine in conjunction with a prison sentence for conspiracy to violate the Georgia Controlled Substances Act, O.C.G.A. § 16-13-20 et seq., the preclusion applies equally to attempt and conspiracy. Watson v. State, 276 Ga. 212, 576 S.E.2d 897 (2003).

Under O.C.G.A. § 16-13-33, a conviction for criminal attempt to violate the Georgia Controlled Substance Act, O.C.G.A. § 16-13-20 et seq., does not authorize the imposition of a fine; therefore, Watson v. State, 256 Ga. App. 789 (2002) is reversed to the extent that it holds to the contrary. Watson v. State, 276 Ga. 212, 576 S.E.2d 897 (2003).

Improper conviction of multiple conspiracy counts is harmless when sentence is within legal limits for single conspiracy. Price v. State, 247 Ga. 58, 273 S.E.2d 854 (1981).

- Circumstantial evidence linking defendant to codefendant drug pilot, to a warehouse containing weapons, records of the criminal enterprise and aircraft equipment, and to an admitted smuggler of Colombian cocaine, was sufficient for a conviction under O.C.G.A. § 16-13-33. Parrott v. State, 206 Ga. App. 829, 427 S.E.2d 276 (1993).

- Trial court properly vacated a consent order modifying the defendant's original sentence as such was based upon a mistake of law induced by the defendant personally, and hence, void; moreover, because the defendant was sentenced as a recidivist, the trial court was required to impose a sentence pursuant to O.C.G.A. § 17-10-7(a). Sosebee v. State, 282 Ga. App. 905, 640 S.E.2d 379 (2006).

Cited in Barner v. State, 139 Ga. App. 50, 227 S.E.2d 874 (1976); Hammock v. State, 146 Ga. App. 339, 246 S.E.2d 392 (1978); Hammock v. Zant, 243 Ga. 259, 253 S.E.2d 727 (1979); Hughes v. State, 150 Ga. App. 90, 256 S.E.2d 634 (1979); Owens v. State, 153 Ga. App. 525, 265 S.E.2d 856 (1980); Little v. State, 157 Ga. App. 462, 278 S.E.2d 17 (1981); Tookes v. State, 159 Ga. App. 423, 283 S.E.2d 642 (1981); Lewis v. State, 161 Ga. App. 348, 288 S.E.2d 124 (1982); State v. Lewis, 249 Ga. 565, 292 S.E.2d 667 (1982); Dyer v. State, 162 Ga. App. 773, 293 S.E.2d 42 (1982); Barnes v. State, 255 Ga. 396, 339 S.E.2d 229 (1986); Causey v. State, 192 Ga. App. 294, 384 S.E.2d 674 (1989); Lovain v. State, 253 Ga. App. 271, 558 S.E.2d 812 (2002); Capestany v. State, 289 Ga. App. 47, 656 S.E.2d 196 (2007).

RESEARCH REFERENCES

ALR.

- When does statute of limitations begin to run against civil action or criminal prosecution for conspiracy, 62 A.L.R.2d 1369.