However, it is clear that when two crimes arise from the same sequence of events, such is not sufficient to invoke the protection of I.C. § 18-301. See Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982); State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979). See also State v. Werneth, 101 Idaho 241, 611 P.2d 1026 (1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 118 (1981); State v. Horn, 101 Idaho 192, 610 P.2d 551 (1980).

Their approaches are frequently based on different considerations, and often with little citation, but most states find burglary and rape or any other felony committed inside the dwelling to be separate offenses, separately punishable by a same evidence Blockburger -like test. Beckley v. State, Ala. App., 357 So.2d 1022 (1978); Hunter v. State, Del., 430 A.2d 476 (1981) (first-degree assault and possession of a deadly weapon during commission of a felony); Vincent v. State, Del., 256 A.2d 268 (1969) (first-degree burglary and rape); Groves v. State, 152 Ga. App. 606, 263 S.E.2d 501 (1979) (burglary and rape); Dutton v. Smart, 222 Ga. 35, 148 S.E.2d 396 (1966) (burglary and assault with intent to rape); State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979) (burglary and rape); Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (1982) (burglary and grand larceny); People v. Weaver, 93 Ill. App.2d 311, 236 N.E.2d 362 (1968) (aggravated battery and rape); People v. Jones, 6 Ill. App.3d 669, 286 N.E.2d 87 (1972) (aggravated kidnapping and rape); Dragon v. State, Ind., 383 N.E.2d 1046 (1979), cert. denied, 442 U.S. 912, 99 S.Ct. 2829, 61 L.Ed.2d 279 (kidnapping and rape); Adams v. State, Ind., 386 N.E.2d 657 (1979) (burglary, armed robbery, armed rape, armed sodomy); Gibson v. Henderson, 376 F. Supp. 1065 (1974) (applying Louisiana law — burglary and rape); People v. Hughes, 85 Mich. App. 674, 272 N.W.2d 567 (1978) (armed robbery and felony-firearm statute — look to legislative intent); State v. Gant, Minn., 305 N.W.2d 790 (1981) (burglary and rape; burglary anti-merger statute shows legislative intent); Hughes v. State, Miss., 401 So.2d 1100 (1981) (kidnapping and rape); State v. Revelle, 301 N.C. 153, 270 S.E.2d 476 (1980) (felonious larceny, armed robbery, burglary and rape); Steele v. State, Okla. Cr.App., 629 P.2d

Walck also correctly cites to I.C. § 19-4906, which governs the power of a court to dismiss a petition for post-conviction relief. See Stone v. State, 108 Idaho 822, 824, 702 P.2d 860, 862 (Ct. App. 1985). This Court has held that a trial court cannot dismiss a petition without a hearing if there exists a material issue of fact. Daugherty v. State, 102 Idaho 782, 783, 640 P.2d 1183, 1184 (Ct. App. 1982). However, the converse is also true; a court may dismiss the petition without an evidentiary hearing when a petition for post-conviction relief does not raise material questions of fact which would entitle a petitioner to relief. Stone, 108 Idaho at 824, 702 P.2d at 862.

However, if the application presents only questions of law, disposition on the pleadings and the record is appropriate. Daugherty v. State, 102 Idaho 782, 783, 640 P.2d 1183, 1184 (Ct.App. 1982). On review of a dismissal of a post-conviction application without an evidentiary hearing, we will determine whether a genuine and material issue of fact is demonstrated in the record and whether one party was entitled to judgment as a matter of law. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.App. 1993).

"A court cannot dismiss a petition without a hearing if there exists a material issue of fact." Stone v. State, 108 Idaho 822, 824, 702 P.2d 860, 862 (Ct.App. 1985); Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982). To qualify for an evidentiary hearing, petitioner must tender a factual showing based on evidence admissible at the hearing that would entitle him to relief. Drapeau v. State, 103 Idaho 612, 651 P.2d 546 (Ct.App. 1982).

The court cannot dismiss an application without a hearing if a material issue of fact exists. Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982). Until the allegations in a post-conviction petition are in some manner controverted by the State, they must be deemed to be true. Tramel v. State, 92 Idaho 643, 448 P.2d at 649.

In the present case, the Blockburger test is satisfied because the statutory elements of burglary in the first degree and petit theft are different and require proof of different facts. Cf. Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982) (burglary and grand theft). Burglary is completed upon entry into a building with the intent to commit theft.

McNeeley's contention, while couched in the context of the voluntariness of his plea, essentially is that joint representation is per se violative of the sixth amendment right to counsel. That is not the law and we decline to so hold. State v. Taylor, supra; Roles v. State, supra; Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982). Judge Durtschi did find an actual conflict of interest at the sentencing stage because the attorney was faced with the dilemma of arguing relative degrees of culpability among three defendants. Any argument lessening the culpability of one defendant would necessarily reflect on the culpability of the others.

The burglary and the robbery require a different analysis. As noted in Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982), our Supreme Court has held that I.C. § 18-301 permits separate convictions and punishments for burglary and for an offense committed after an illegal entry has been made. See State v. McCormick, 100 Idaho 111, 594 P.2d 149 (1979).

On review, it is our task to determine if there were genuine issues of material fact making a dismissal on the pleadings and on the records improper. I.C. § 19-4906(b); Daugherty v. State, 102 Idaho 782, 640 P.2d 1183 (Ct.App. 1982). Svenson contends first that the state did not honor the plea bargain agreement which led to his guilty pleas.