dissent">LANSING, Chief Judge,

dissenting.

In this appeal Ronald Keith Henman has raised a significant question as to whether he received ineffective assistance of counsel when his appointed attorney failed to raise a double jeopardy defense to Henman’s prosecution for trafficking in cocaine. I disagree with the majority’s refusal to address that issue.

In Henman’s application for post-conviction relief he pleaded several claims. In separate counts, he alleged that prior to his conviction for trafficking he had already been “punished” for the same offense through assessment of a tax and the seizure of his personal property under Idaho’s Illegal Drug Tax Act, I.C. §§ 63-4201 to 4211, and that his conviction was therefore unlawful because it: (1) violated former I.C. § 18-301, (2) violated the double jeopardy clause of Idaho Constitution Art. I, § 13, (3) violated Art. I, § 3 of the Idaho Constitution, and (4) violated the double jeopardy clause of the Fifth Amendment to the United States Constitution as applied to the states by the Fourteenth Amendment. Although the majority opinion does not mention it, it is significant that Henman also asserted one more claim for relief — that he received ineffective assistance of counsel when his attorney advised him to plead guilty to the trafficking charge without ever having raised the double jeopardy bar as a defense.

As the majority points out, the district court cited two grounds for dismissing Hen-man’s post-conviction claims. First, the court concluded that Henman was never placed in “jeopardy” by the tax assessments and therefore had no double jeopardy defense to the trafficking charge. Second, the district court held that because Henman had pleaded guilty to trafficking, he had waived the double jeopardy defense and could not now raise it as a bar to fulfilment of his obligations under the plea agreement. The majority refuses to address the substance of Henman’s appeal because in his appellant’s brief Henman focused only on the district court’s first ground for dismissal and did not challenge the court’s second ground. I do not agree that this is a deficiency in the appellant’s brief that should prevent our consideration of the merits of his appeal with respect to his claim of ineffective assistance of counsel.

I do not take exception to the general proposition that if an appellant fails to challenge all of the trial court’s alternative grounds for a ruling, the trial court’s decision ordinarily should be upheld on appeal. However, that proposition should apply only where the alternative ground was in fact relied upon as a basis for the trial court’s disposition of the claim at issue on appeal. In this case, I do not believe that the alternative basis for the district court’s decision *53applied to the claim for ineffective assistance of counsel.

The first ground for the district court’s dismissal — essentially that Henman had no double jeopardy defense to raise — would, if correct, justify dismissal of all of Henman’s claims for relief in the post-conviction action. However, the second ground relied upon by the district court — waiver of the double jeopardy defense by Henman’s guilty plea — could appropriately serve as a basis for dismissal only as to those counts in his post-conviction application other than the count alleging ineffective assistance of counsel. This is so because it is very well established that a defendant may use a post-conviction action to seek relief from a guilty plea where the plea was the product of ineffective assistance from the defense attorney. State v. Blackburn, 99 Idaho 222, 579 P.2d 1205 (1978); Dunlap v. State, 126 Idaho 901, 905, 894 P.2d 134, 138 (Ct.App.1995); Remington v. State, 127 Idaho 443, 901 P.2d 1344 (Ct.App.1995). It is not at all apparent from the record that the district court was relying upon this second ground as a reason for dismissing the ineffective assistance count. If the district court was not so relying, then it was not incumbent upon Henman to challenge that second ground in his appellant’s brief contesting the dismissal of his ineffective assistance of counsel claim. In the absence of some indication from the trial court that it was (erroneously) applying the second ground as a basis to dismiss the ineffective assistance count, I am unwilling to assume that the district court did so. I am also unwilling to penalize Hen-man on this appeal for not assuming that the district court did so.

Henman’s argument in this appeal that his criminal defense lawyer was deficient for failing to recognize and raise a double jeopardy defense presents a substantive issue that warrants this Court’s attention. If Henman is correct, his guilty plea should be set aside. When an appellate court is presented with a challenge to the validity of a criminal conviction, it should address the merits of that challenge unless procedural bars, an inadequate appellate record, or similar factors make it impossible, unjust or unwise to do so. Such circumstances do not exist here. Therefore, Henman’s claim that he received ineffective assistance of counsel because his lawyer failed to recognize and raise a potential absolute defense to the criminal charge should be addressed and decided by this Court.

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