2010-M-152             Gary L. Roby, petitioner, Appellant, vs. State of Minnesota, Respondent.

Gary Roby was found guilty in 1989 of first-degree premeditated murder, first-degree felony murder, and second-degree murder for the shooting death of Marlizza McIntyre.  Roby was convicted of the first-degree premeditated murder charge and sentenced to mandatory life in prison.

 Roby filed a direct appeal of his conviction, which we affirmed.  Roby has since filed three petitions for post-conviction relief.  The first two were denied by the post-conviction court, which we affirmed on appeal.

 In 2009, Roby filed his third petition for post-conviction relief, which the post-conviction court denied. 

This appeal followed.  The primary issue on appeal is whether the post-conviction court erred when it concluded that Roby had not properly invoked any of the exceptions set forth in Minn. Stat. § 590.01, subd. 4(b) (2008).

First, to determine whether a petition for post-conviction relief invokes an exception to the two-year statutory time limitation under Minn. Stat. § 590.01, subd. 4 (2008), a court must look at the statement of the facts and grounds on which the petition is based, waiving any irregularities or defects in form and liberally construing the petition, to ascertain whether the petitioner raised an exception.

Second, a petition for post-conviction relief containing claims of newly discovered evidence and requesting that the petition be considered in the interests of justice sufficiently invoked the exceptions listed in Minn. Stat. § 590.01, subd. 4(b)(2) and (b)(5), such that the post-conviction court erred in not considering whether the exceptions were established. 

Reversed and remanded.

               Meyer  (Gildea, Page, Paul Anderson, Barry Anderson, and Dietzen)

               Took no part:  Stras

               [MURDER]