dissenting.
It does not appear whether the State’s offer of a sentence of five years to serve, for all charges, would have been a recommendation or negotiated, but in either event it was rejected by defendant and he went to trial. Counsel asserts that this was because he did not want to plead guilty to the sex offenses, of which he was ultimately acquitted, but this reason was not explained to the trial court when the failed plea bargain was discussed.
*673Defendant contends that judicial vindictiveness is indicated because of certain comments made by the court during the sentence hearing. The court stated to the prosecuting attorney: “You offered him five. I’d like to give him seven,” and then remarked with reference to defendant: “I don’t think he was anything but coked out of his damn head, just like the jury did.” When defense counsel protested the sentence and sought five years, the court retorted as quoted in the majority opinion. It is argued that this was a clear reference to defendant’s choosing trial rather than pleading guilty.
There is no constitutional deprivation or violation per se arising from a defendant’s being sentenced after trial for a term in excess of the amount he was offered during plea bargaining. Corbitt v. New Jersey, 439 U. S. 212, 218 (99 SC 492, 58 LE2d 466) (1978); Bordenkircher v. Hayes, 434 U. S. 357, 363 (98 SC 663, 54 LE2d 604) (1978). Crapse v. State, 180 Ga. App. 321, 325 (4) (349 SE2d 190) (1986); Tutton v. State, 179 Ga. App. 462, 463 (3) (346 SE2d 898) (1986); Heaton v. State, 175 Ga. App. 735, 736 (7) (334 SE2d 334) (1985); Milner v. State, 159 Ga. App. 887, 889 (285 SE2d 602) (1981); German v. State, 159 Ga. App. 638 (1) (284 SE2d 654) (1981); Bennett v. State, 158 Ga. App. 421, 428 (9) (280 SE2d 429) (1981); Stroud v. State, 154 Ga. App. 852 (1) (270 SE2d 69) (1980). Because the imposition of difficult choices is an inevitable attribute of plea negotiations, fear of the possibility of greater punishment after a trial is a legitimate decisional factor. Bordenkircher, supra; Chaffin v. Stynchcombe, 412 U. S. 17, 29 (93 SC 1977, 36 LE2d 714) (1973); Thompson v. State, 154 Ga. App. 704, 708 (5) (269 SE2d 474) (1980).
Nonetheless, an accused may not be judicially punished for exercising his constitutionally guaranteed right to a jury trial. Alabama v. Smith, 490 U. S. _ (109 SC 2201, 104 LE2d 865) (1989) reemphasized this. To pursue a course of action the objective of which is to penalize a person’s reliance on his legal rights is a “flagrant violation” and “patently unconstitutional.” Bordenkircher, supra; Pearce v. North Carolina, 395 U. S. 711, 723-5 (89 SC 2072, 23 LE2d 656) (1969).
The application of OCGA § 17-10-7 (a) in conjunction with OCGA § 16-13-30 (c) as to the drug count required the fifteen-year sentence imposed but also retained trial court discretion to probate or suspend the prescribed sentence. The record of the court’s statements at sentencing is evidence of a judicial retaliatory motive insofar as the allocation of time served is concerned.
While defendant may suffer the consequences of his choice to be tried, including a more severe sentence, the Federal Constitution forbids the imposition of punishment when it comprises, at least in part, a penalty for the exercise of a legal right to trial. The decision in Thompson, supra at 708-709, recognized this when the specific finding *674was made that the trial court’s action in imposing sentence was not “vindictive” within the meaning of Pearce, supra. Without this factual basis the rest of Thompson would be mere rhetoric. In Sparks v. State, 176 Ga. App. 8, 12 (3) (335 SE2d 298) (1985) [physical precedent], it was argued that the trial court erred in assessing a harsher sentence because defendant elected to enter a not guilty plea, putting the State to the trouble of proving guilt. The author, with whom another panel member agreed, observed: “We would agree with [defendant] if we were satisfied that the trial judge was so motivated.”
Decided November 27, 1989. John V. Lloyd, for appellant. Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, *675Assistant District Attorney, for appellee.*674In brief, a more severe sentence may be imposed but only where its rationale or motivation is not tainted with “vindictiveness.” In recognition of this fundamental principle the Uniform Superior Court Rules, promulgated by the Supreme Court, admonish: “The judge should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere.” (Emphasis in original.) USCR 33.6 (B).
The appearance of vindictiveness jeopardizes the sentence and requires its reversal. If it is to be reimposed, a constitutionally permissible explanation must be made because of the prior comments; in any event, the imposition of sentence must be devoid of the vindictiveness described in Alabama v. Smith, supra, and cases cited therein.
I recognize that Alabama v. Smith involved a vacated guilty plea followed by a trial, that is, two court sentencings, whereas this case involves only a sentence offer by the State and one post-trial court sentencing. See also Thompson, supra. In defendant’s case the sentence complained of does not follow a less severe but voided sentence, that is, two judicial decisions regarding the appropriate sentence. Instead, it follows a less severe plea bargaining offer of which the court was aware when fashioning the sentence. However, the prohibition against improper motive as outlined in Alabama v. Smith, supra, applies as well, because of the root problem.
I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.