
    Argued and submitted December 16, 1991,
    affirmed February 26, 1992
    JOSE VELASCO De La CRUZ, Appellant, v. STATE OF OREGON, Respondent.
    
    (CV 90-0836; CA A69929)
    825 P2d 296
    Alan Gallagher, La Grande, argued the cause for appellant. On the brief were Wade P. Bettis, Jr. and Bettis & Associates, P.C., La Grande.
    James H. Juliussen, Certified Law Student, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Janet Klapstein, Assistant Attorney General, Salem.
    Before Richardson, Presiding Judge, and Deits and Durham, Judges.
    PER CURIAM
   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 P2d 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 P2d 125 (1988); Moen v. Peterson, 104 Or App 481, 486, 802 P2d 76 (1990), aff’d 312 Or 503, 824 P2d 404 (1991).

Affirmed.  