
    Submitted on record and brief July 21, 1991,
    reversed and remanded May 13, 1992
    Steven R. WAGY, Appellant, v. Manfred (Fred) MAASS, Respondent.
    
    (89C-10617; CA A66483)
    829 P2d 1057
    Noel Grefenson, Salem, filed the brief for appellant.
    Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Harrison Latto, Assistant Attorney General, Salem, filed the brief for respondent.
    Before Buttler, Presiding Judge, and Rossman and De Muniz, Judges.
    PER CURIAM
   PER CURIAM

Petitioner was convicted of failure to appear in the first degree, ORS 162.205, and was placed on probation for five years. Subsequently, his probation was revoked, and he was sentenced to a prison term of three years. He appealed the judgment revoking his probation. Meanwhile, he had filed this proceeding for post-conviction relief, alleging ineffective assistance of counsel in connection with his original conviction. The court granted defendant’s motion for summary judgment, finding that the petition was premature under ORS 138.540(1), because petitioner had “an appeal pending on the same matter. ’ ’ The state concedes that the pendency of petitioner’s appeal from the revocation of his probation does not preclude his filing a petition for post-conviction relief from his original conviction.

Reversed and remanded.  