(dissenting).
I agree with the majority’s conclusion that James’s 39-month delay in bringing his petition is a relevant consideration in determining whether James is entitled to withdraw his guilty plea. However, because I disagree with the terms under *731which the majority has reversed and remanded, I respectfully dissent.
In a series of decisions addressing the relationship between plea agreements and the imposition of conditional release, our court has struggled to reconcile the requirements of constitutional due process, our rules of criminal procedure, and the conditional release statute. See State v. Wukawitz, 662 N.W.2d 517, 523-25 (Minn. 2003); Minn.Stat. § 609.109, subd. 7 (2004). This case focuses on the distinct procedural question of whether James’s motion was timely under Minn. R.Crim. P. 15.05, subd. 1, which provides that “[t]he court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Thus, a successful plea withdrawal petition — in all cases — must meet two separate requirements: first, the plea must be timely; second, the petition must show that plea withdrawal is necessary to correct a manifest injustice.
In keeping with the plain language of Rule 15.05, subd. 1, we have repeatedly stated that timeliness is a relevant factor in determining whether a petitioner should be allowed to withdraw his plea. Rairdon v. State, 557 N.W.2d 318, 322 (Minn.1996) (“In general, delay in filing a petition for posteonviction relief is one relevant factor against granting relief.”); Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (“[Djelay in seeking relief is a relevant consideration in determining whether that relief should be granted.”).
Although we have repeated the principle that timeliness is a factor in evaluating plea withdrawal petitions, we have elected in the great majority of cases to substantively review petitions on the merits — regardless of their timeliness — if the issues raised have not previously received substantive review. See, e.g., Alanis v. State, 583 N.W.2d 573 (Minn.1998) (reviewing on merits when defendant filed postconviction petition to withdraw plea four months after sentencing); Perkins v. .State, 559 N.W.2d 678 (Minn.1997) (reviewing on merits when defendant delayed six months to file postconviction petition to withdraw plea); State v. Ecker, 524 N.W.2d 712 (Minn.1994) (reviewing on merits when defendant pleaded guilty to first-degree murder, lost a direct appeal of his sentence, then filed a postconviction petition to withdraw plea five years after sentencing).
While we prefer to -review petitioners’ claims on the' merits, in order for the timeliness requirement in Rule 15.05, subd. 1, to retain any vitality, that preference cannot be absolute. The .rule requires both timeliness and a showing of- manifest injustice. Accordingly, there may be cases in which a petitioner has satisfied the manifest injustice requirement of Rule 15.05, subd. 1, but nonetheless should be denied relief because the petition was not timely brought. This may be one of those cases.
In Wukawitz we struck a balance between the dictates of the conditional release statute and constitutional due process concerns. 662 N.W.2d at 527. That balance, however, is not insulated from our procedural rules of law. Rule 15.05, subd. 1, applies to every plea withdrawal petition — and for good reason. Under the reasoning in Wukawitz, if a defendant agrees to a specific sentence but does not receive notice of the imposition of a conditional release term until after his sentence is executed — as here — the defendant’s due process rights have -been violated and, accordingly, the “manifest injustice” prong of Rule 15.05, subd. 1, has.been met. See Wukawitz, 662 N.W.2d at 522, 526. However, because the defendant in Wukaivitz brought his plea withdrawal petition shortly after being notified of the imposition of a conditional release term, we had no occa*732sion in that case to consider under what circumstances a petition that has met the manifest injustice prong of Rule 15.05, subd. 1, may nonetheless be untimely.
Here, although the postconviction court did not address the timeliness of James’s petition, the court of appeals found the issue dispositive. James v. State, 674 N.W.2d 216, 220 (Minn.App.2004). Although I agree with the court of appeals that there may be instances in which a court may conclude a defendant’s plea withdrawal petition is untimely — and thereby preclude relief under Rule 15.05, subd. 1 — I believe such a determination cannot be made by an appellate court on a record as slight as the one in this case, with no ruling on the timeliness issue by the postconviction court. Accordingly, I believe this case should be remanded to the postconviction court with instructions that the court consider whether James’s petition was timely.
Although Rule 15.05, subd. 1, does not provide clear guidance regarding how courts should determine whether a plea withdrawal petition is timely, the advisory committee comment to the Rule specifies that determining whether a plea withdrawal is timely “is left * * * to judicial decision.” Minn. R.Crim. P. 15.05 cmt. (citing Chapman v. State, 282 Minn. 13, 162 N.W.2d 698 (1968)). The comment follows ABA Standards regarding plea withdrawal, which state that a plea withdrawal request must be “made with due diligence, considering the nature of the allegations therein.” ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-2.1(b) (3d ed. 1999).
In determining the timeliness of a petition like the one at hand, it must be recognized that the balance struck by our court in Wukawitz already relaxes the strict requirements of the conditional release statute. In that case, we concluded that due process considerations mandate that if a defendant has not received notice of the imposition of conditional release until after sentencing, he is entitled to withdraw his plea or have his sentence modified to comport with his plea agreement. 662 N.W.2d at 526. In determining which option should be ordered by the district court, we stated that “the state should be allowed to present argument” regarding whether the state would be unduly prejudiced by allowing the defendant to withdraw his plea. Id.
In those cases in which the passage of time has unduly prejudiced the state’s ability to reprosecute, the remedy established in Wukawitz spares the state from having to retry a stale case in which a conviction would be unlikely. In turn, defendants receive the full benefit of the bargains they struck with the state and escape the imposition of conditional release.'
I believe that reconciling the remedy in Wukawitz with the timeliness requirement in Rule 15.05, subd. 1, requires postconviction courts to distinguish between the delay caused by the state and the delay caused by the defendant in evaluating whether the state has been unduly prejudiced. As noted earlier, the defendant in Wukawitz promptly moved to withdraw his plea; thus the timeliness of his motion was not at issue. Here, however, James served his prison sentence, remained free on conditional release for a number of months, violated the terms of his conditional release, and had his conditional release revoked. Then, only after having spent an additional eight months in prison for violating his conditional release, did he move to withdraw his plea.
By essentially waiving the timeliness requirement of Rule 15.05, subd. 1, the majority gives criminal sexual conduct defendants who have pled guilty and received notice of conditional release after sentenc*733ing a strong interest in delaying as long as possible before moving to withdraw their guilty pleas. Such delay all but assures that the state will not be able to reprose-cute, obtain a conviction, and impose the conditional release term as mandated by the legislature.
Accordingly, I would reverse and remand with instructions for the postconviction court to evaluate whether James’s petition was timely under Rule 15.05, subd. 1. The parties should be allowed to present argument regarding whether the state has been unduly prejudiced by the defendant’s delay in bringing his plea withdrawal petition. In making its decision regarding the timeliness of James’s petition, • the court should consider the degree to which the state’s nearly two-year delay in notifying James of the imposition of conditional release prejudiced its ability to reprosecute. If the postconviction court concludes that the state’s delay did not completely foreclose the possibility of successful reprose-cution, the court should then evaluate whether James’s 39-month delay unjustifiably frustrated the state’s ability to repro-secute, thereby assuring that James would completely escape the possibility of serving the mandated conditional release term. See Wukawitz, 662 N.W.2d at 527. Because the majority is not reversing and remanding with instructions for the post-conviction court to determine whether James brought his petition with due 'diligence, I respectfully dissent.