dissenting. In addition to the fact that appellant never had the services of any single lawyer long enough to prepare a defense I disagree with the majority opinion. As I understand the opinion it holds that one act of sexual conduct may result in a conviction for rape by deviate sexual activity or rape and incest. If that is not the holding then the holding must be that it is not necessary to charge and convict a defendant for a criminal act performed on a particular date so long as there is evidence that some or similar criminal acts were committed in the past. It is not possible to determine from the record, briefs or majority opinion on what date the criminal act occurred or for which specific act appellant was convicted. The same conduct cannot support two convictions in violation of Ark. Stat. Ann. § 41-105 (Repl. 1977). See Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983). The majority cites King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977) as support for the opposing position; however, King was convicted of burglary and theft by receiving. His offenses occurred at separate places and apparently on different dates. I agree with our holding in King but think it has absolutely no bearing on the present facts.
I cannot agree with an opinion which holds that the trial court had no authority to cause the sentences to run concurrently after the appellant commenced serving his sentence under the present circumstances. Appellant was tried on March 3, 1982, and transported to the Arkansas Department of Correction the next day. The judgment was not filed until March 11, 1982, at which time appellant was already serving the sentence. On March 29, 1982, a motion for a new trial was filed. Notice of appeal was filed on the same date. On April 14, 1982, the trial court ordered appellant returned for a hearing on the motion for a new trial. This hearing was held on May 11, 1982. The motion was denied but appellant was allowed to remain on bail pending an appeal. He is still on bond pending appeal.
The majority rely upon the case of Charles v. State, 256 Ark. 690, 510 S.W.2d 68 (1974). Charles had entered guilty pleas to eight charges and had served four months of his sentence. Additionally, Charles is not precedent for the present facts because he sought to have the trial court order the department of correction to credit him with time served. The holding was that the trial court had no authority to order prison officials to credit certain time toward the sentence. The Charles opinion did recognize that the trial court had power over i ts j udgmen t during the term in which it was renderd and until the appeal is perfected to an appellate court. Appellant had no time within which to perfect his appeal because he was whisked away the day after his trial.
If such procedure is allowed to stand, the state may cause a person to be illegally sentenced and rush him to the penitentiary to start serving a sentence thereby denying him his right of appeal to correct the error. A.R.Cr.P. Rule 36.13 (Supp. 1981) specifically deals with appeals after confinement. The rule states in part:
If the trial court admits the defendant to bail pending appeal, the court may recall the commitment by which the sentence was carried into execution.
The trial court set appeal bail at ten thousand dollars on the day of the trial. The majority opinion allows the sheriff to override the court order, and deny appellant his rights, by simply rushing the convicted person to prison immediately after trial. This simply cannot be right, and I must dissent.