dissenting.
I respectfully submit that my colleagues have erroneously interpreted the rule of waiver contained in I.C. § 19-4908. The statute provides that a person seeking post-conviction relief from a criminal judgment must set forth all grounds for such relief in the original, supplemental or amended application. Any grounds not set forth are waived, and “may not be the basis for a subsequent application,” unless the court finds “sufficient reason” why those grounds were not raised previously. The statute plainly is intended to discourage multiple requests for relief from a judgment of conviction. It does not preclude the filing of separate applications seeking relief from separate judgments. But as I shall attempt to explain, the Court has given precisely that effect to the statute today.
Barry King stands convicted, by separate judgments, of burglary and rape. The burglary judgment, supplemented by a probation revocation order, imposes a sentence consecutive to the sentence contained in the rape judgment. In 1984 King filed an application for post-conviction relief, seeking to have the sentences made concurrent. The relief requested would not have affected the rape judgment. It would have required only a modification of the burglary judgment. The application was denied. In 1986 King filed another application, this one seeking relief only from the rape judgment. This application was dismissed on the basis of waiver under I.C. § 19-4908. The Court today upholds this result, explaining that the first application “referred to” both judgments. Thus, the Court has broadened the statutory rule of waiver to include a first-time request for relief from a judgment which had been “referred to” in an application filed in a separate case.
In my view, the nexus between a judgment and a post-conviction relief application is determined by the relief actually sought, not by matters merely “referred to.” Because King’s first application actually sought relief only from the burglary judgment, I would hold that he was entitled to file another application seeking relief only from the rape judgment. By holding otherwise, the Court exalts form over substance and distorts the meaning of I.C. § 19-4908.
The Court then advances an alternative rationale for upholding the dismissal of King’s 1986 application. The Court holds that the application failed to establish any genuine issue of material fact because it contained only conclusory allegations. This, of course, is not the reason given by the district judge for dismissing the application. Nevertheless, I realize that we can affirm a lower court’s decision on an alternative legal theory. I also acknowledge *448that many of King’s allegations were, indeed, conclusory.
However, one of the grounds stated in the 1986 application, and later elaborated in King’s “traverse” to a motion to dismiss, was that he pled guilty to the rape charge while suffering the effects of withdrawal from alcohol and drugs. This allegation may be true, or it may be fabricated, but in any event it is not conclusory. It avers a specific fact. If the allegation is true — as we must assume for the purpose for reviewing a summary dismissal — then it may give rise to relief. If the guilty plea was made at a time, when King was sick and unable to think clearly, the plea could not be regarded as knowing, intelligent and voluntary. Accordingly, I would vacate the district court’s decision in part, remanding the case for an evidentiary hearing on the question whether King’s guilty plea was indeed significantly affected by withdrawal from alcohol or drugs. Cf State v. Cobb, 100 Idaho 116, 594 P.2d 154 (1979) (overturning summary dismissal of post-conviction relief application and remanding for evidentiary hearing on allegation that plea was tainted by influence of drugs).
Finally, the Court today declares that the burglary sentence should have been made concurrent with the rape sentence, as King requested in his first application. That declaration is supported by Idaho case law, and I agree with it — as far as it goes. But if it was unlawful for the burglary sentence to run consecutively to the rape sentence, then the district court erred in denying King’s first application upon the belief that the relief sought was unavailable in a post-conviction relief proceeding. Relief from an illegal sentence is available under I.C. § 19-4901(1). Unfortunately, King did not appeal the order denying his first application. That decision has long since become final.
Perceiving an apparent injustice, and acting with a commendable motive, my colleagues ride to King’s rescue. They say that relief is still available under I.C.R. 35 and, “in the interest of efficient judicial administration,” the burglary sentence shall be modified on remand. This sua
sponte directive overlooks two problems. First, it cannot be broadly presumed that a person who seeks a modification of his sentence under the post-conviction relief statutes, and who fails to appeal an adverse ruling, would be automatically entitled to seek identical relief in another proceeding under Rule 35. A system designed to achieve “efficient judicial administration” should carefully limit a litigant’s right to seek the same relief in different proceedings. The Court today does not articulate any limits, nor does it fully explain why no such limit would apply to this case. The issue deserves closer consideration.
The second problem is that, unlike the cases cited by the Court as precedent for its action, the instant case does not come to us on appeal from a judgment containing an illegal sentence. This is not an appeal from the burglary judgment. Nor is it an appeal from the denial of a post-conviction relief application directed at the burglary judgment. It is an appeal from the dismissal of an application directed solely at the rape judgment. I fail to see how the Court in this case can order a district judge on remand to modify a final judgment in another, separate case.
The better approach, I submit, would have been for our Court simply to “flag” the issue of an illegal sentence. King then could seek relief in a proper manner. If he wished to test the continued availability of Rule 35 relief, he could file a motion under that rule in the burglary case. Alternatively, he could request the Commission for Pardons and Parole to commute his burglary sentence from consecutive to concurrent, thereby bringing it within the legal limits prescribed by settled case law.