The State charged appellant with incest and rape by alleging that on numerous occasions he engaged in sexual intercourse or deviate sexual activity by forcible compulsion with his fourteen year old daughter. He employed an attorney but that attorney was granted leave to withdraw as the result of a conflict of interest. Appellant requested that.he be allowed to represent himself. The trial judge appointed a second attorney to assist appellant in the preparation of his defense and to act in a standby capacity at trial. The second attorney carefully detailed the various possible sentences which appellant faced and offered to assist the appellant in any manner. That attorney then moved to Texas and a third one was appointed. Over the next three and one-half months the third attorney consulted in person with appellant, telephoned him and wrote him. It is undisputed that the attorney related the nature of the charges and the possible penalties. He informed him of a plea bargain offer by the State. However, the appellant stated he did not want to plea bargain and did not want the attorney to defend him. Immediately prior to trial, the trial judge conducted another in camera hearing and again appellant stated that he desired to proceed without an attorney. He stated: "I understand that I have a right to use Mr. Lippard as my attorney. In fact he is my lawyer.” The j udge cautioned the appellant and questioned the wisdom of his decision. He responded that there was no defense and "I’ll take what they give.” Additionally, he stated that his family had already been hurt enough.
At trial, appellant’s daughter testified to incidents of sexual intercourse by forcible compulsion as well as deviate sexual activity by forcible compulsion. A medical doctor’s testimony tended to corroborate her testimony. The State rested. Appellant’s attorney approached the bench and stated that appellant would not allow him to put on a defense. In chambers appellant again stated he did not want to further embarrass his family and he simply did not want to defend.
The jury found appellant guilty and fixed his punishment at twenty years on the charge of rape and ten years on the charge of incest. We affirm,
An accused may voluntarily and intelligently waive the right to counsel and choose to represent himself. Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975). Here, such a waiver undoubtedly occurred. Nonetheless, the trial judge appointed a standby attorney but appellant refused to allow the attorney to defend. The services of an attorney cannot be forced upon an accused. Nichols v. State, 273 Ark. 466, 620 S.W.2d 942 (1981).
Appellant next contends that the charges of rape and incest should have been merged because they grew out of the same factual situation. We do not find it necessary to determine whether rape by sexual intercourse or rape by deviate sexual activity and incest require different elements of proof. There was ample testimony by which the jury could have found that appellant committed rape by deviate sexual activity on one occasion and, on other occasions, was guilty of incest by having sexual intercourse with his daughter. Each act constituted a separate offense. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977). Appellant was properly convicted on separate counts.
Appellant was convicted and transported to the Department of Correction. Twenty-six days later a motion for a new trial and a notice of appeal were filed. At the hearing, which was held two months after appellant was imprisoned, the trial judge announced he would change the sentences to run concurrently if he could. He later ruled that he no longer had jurisdiction to alter the sentences. The trial judge was correct. Once the execution of the sentence has begun the trial court loses jurisdiction to modify the sentence. Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974).
Affirmed.
Purtle, J., dissents.