
    Submitted on record and briefs March 1,
    reversed and remanded with instructions; otherwise affirmed April 3, 1991
    CHARLES EMERY DUNCAN, JR., Appellant, v. STATE OF OREGON, Respondent.
    
    (89-3013-E-1; CA A63288)
    807 P2d 346
    Charles Emery Duncan, Jr., Simi Valley, California, filed the brief in propria persona for appellant.
    Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and John Reuling, Assistant Attorney General, Salem, filed the brief for respondent.
    Before Buttler, Presiding Judge, and Joseph, Chief Judge, and Rossman, Judge.
    PER CURIAM
   PER CURIAM

Petitioner appeals the dismissal of his petition for post-conviction relief. The petition was dismissed as time-barred under ORS 138.510(2), as amended by Or Laws 1989, ch 1053, § 18, and because the prayer sought relief that is not obtainable by a post-conviction petition.

The state concedes that the petition was timely filed within 120 days after August 5,1989, the effective date of the amendment to ORS 138.510(2) that added the 120-day filing limitation. It also concedes that the post-conviction court should have allowed petitioner an opportunity to amend his petition under ORCP 23A.

The state argues, however, that petitioner did not prove his indigency and that the court’s refusal to appoint counsel for him was not error. We agree.

Reversed and remanded with instructions to allow petitioner to amend petition; otherwise affirmed.  