CRUZ, v. STATE

PER CURIAM

Appellant filed a petition for post-conviction relief on August 17, 1990. The trial court's judgment of conviction had been entered on February 20, 1985. Effective August 5, 1989, a 120-day Statute of Limitations applies to petitions for post-conviction relief. ORS 138.510(2). The petition was untimely. Boone v. Wright, 110 Or. App. 281, 822 P.2d 719 (1991). The state asserts the timeliness issue for the first time on appeal. The state, as respondent, is entitled to assert that the judgment of the post-conviction court was correct for that reason. Tarwater v. Cupp, 304 Or. 639, 644 n 5, 748 P.2d 125 (1988); Moen v. Peterson, 104 Or. App. 481, 486, 802 P.2d 76 (1990), aff'd 312 Or. 503, 824 P.2d 404 (1991).

Affirmed.