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.