concurring and dissenting.
¶40 Although I concur in the result, I dissent as to the Court’s conclusion that the time bar of § 46-21-102, MCA, is jurisdictional in nature. Section 46-21-102, MCA, is, I believe, a statute of limitations. We recognized such in Morrison v. Mahoney, 2002 MT 21, ¶ 11, 308 Mont. 196, ¶ 11, 41 P.3d 320, ¶ 11, and State v. Placzkiewicz, 2001 MT 254, ¶ 11, 307 Mont. 189, ¶ 11, 36 P.3d 934, ¶ 11, where we characterized this statute as a “statute of limitations.”
¶41 If, as the Court concludes, the statute is jurisdictional, then it would be absolute in its application since it is axiomatic that subject matter jurisdiction can never be waived. See In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380. Unlike a jurisdictional bar, this statute is subject to exceptions and to waiver. There is a statutory exception for a “newly discovered evidence” claim. Section 46-21-102(2), MCA. We have interpreted this exception as encompassing petitions which allege that the defendant is “legally *363innocent.” See State v. Pope, 2003 MT 330, 318 Mont. 383, 80 P.3d 1232. We have also held that waiver of the time bar is justified by a “clear miscarriage of justice.” State v. Redcrow, 1999 MT 95, ¶ 34, 294 Mont. 252, ¶ 34, 980 P.2d 622, ¶ 34. Other than correctly pointing out that neither exception applies here because Peña does not make a claim that he is actually or legally innocent, the Court fails to discuss the inconsistency of holding that a statutory bar which is subject to exceptions or to waiver is, nonetheless, “jurisdictional.” As noted above, jurisdiction is absolute and cannot be waived.
¶42 Section 46-21-102, MCA, does not mention “jurisdiction.” I would interpret this statute as the federal courts have interpreted the one-year period for filing a petition for a writ of habeas corpus-that is, the one-year period is not a jurisdictional bar, but rather, a statute of limitations. See, e.g., Calderon v. U. S. Dist. Court (9th Cir. 1997), 128 F.3d 1283, 1288-89.
¶43 As a statute of limitations, § 46-21-102, MCA, is subject to waiver. Thus, when the State did not raise the statutory bar as a defense in the District Court, it waived the issue and is now precluded from raising the issue on appeal. Rule 8(c), M.R.Civ.P.; and Marias Healthcare Servs. v. Turenne, 2001 MT 127, ¶ 9, 305 Mont. 419, ¶ 9, 28 P.3d 491, ¶ 9.
¶44 However, even assuming that the State waived the time bar of § 46-21-102, MCA, Peña’s claim is still procedurally barred by § 46-21-105(2), MCA, since he could have challenged the legality of his sentence on direct appeal from the original judgment but did not. Accordingly, I concur in the result reached by the Court.