dissenting.
Because the legislature neither expressed its intention that the new 120-day Statute of Limitations for post-conviction actions, ORS 138.510, be applicable to judgments on convictions entered before the effective date (August 5, 1989) nor provided a grace period within which petitions concerning those pre-limitation judgments may be challenged under the Post Conviction Act, I dissent. As a matter of law, if the legislature had provided the grace period that the majority imposes ad hoc, it would have expressed its intention that the new limitation period apply to all judgments on convictions, whenever entered. See Evans v. Finley, 166 Or 227, 111 P2d 833 (1941). Because the legislature did not do that, it is not for this court to do so. The majority has put the cart before the horse.
The majority divines the legislature’s intent out of. thin air, as if the legislature does not know how to express its intention. That is unfair to that co-equal branch and is totally unjustified. When the legislature wants to apply a new limitation period retroactively, it says so. For example, in 1987, it adopted a new time limit for the appeal of premium audit disputes relating to workers’ compensation insurance. See Kilham Stationery v. National Council on Comp. Ins., 109 Or *288App 545, 820 P2d 842 (1991). ORS 737.505, as amended, allows 60 days after receipt of a final premium audit billing within which appeals to the director must be made. At the same time that it adopted the new limitation, the legislature also amended ORS 737.318(4):
“Notwithstanding ORS 737.505, the provisions of this section apply to all premium audit disputes between employers and insurers in existence on July 20,1987, regardless of the policy year involved or the date of the final audit billing.”
The legislature did not enact that kind of provision here.
The majority apparently accepts defendant’s contention that the amendment is to be applied retroactively, because it does not express an intention to exempt those convicted before its effective date from the new limitation period, and that previously convicted persons, including petitioner, have a 120-day grace period from the effective date of the amendment within which to file a petition. That is a new twist. The general rule is that, in the absence of a clear legislative direction, a statute that shortens a limitation period is applied prospectively only. Reynolds Metals Co. v State Tax Comm., 245 Or 156, 421 P2d 379 (1966); Fullerton v. Lamm, 177 Or 655, 163 P2d 941, 165 P2d 63 (1945); Pitman v. Bump, 5 Or 17 (1873); Bergstad v. Thoren, 86 Or App 70, 738 P2d 223 (1987); Bower Trucking and Whse. Co. v. Multnomah Cty., 35 Or App 427, 432, 582 P2d 439 (1978).
Furthermore, contrary to defendant’s assertion, ORS 138.510 does indicate the legislature’s intention that the limitation provided by the amendment not be applied retroactively. ORS 138.510(3) expressly provides that post-conviction relief is available to persons convicted before May 26,1959, the effective date of the original act. Obviously, the remedy would not be available to those persons if the newly adopted limitation was intended to apply retroactively, unless it can be said that the statute intends, by its silence, that there be a 120-day grace period. ORS 138.510(3) makes it clear that the post-conviction act applied retroactively, granting any person convicted of a crime, whether before or after the effective date of the act, the right to file for post-conviction relief. It is equally clear from that provision that the legislature knew how to express its intention to apply a statute *289retroactively, yet it did not do so in enacting the new 120-day limitation.
In Pitman v. Bump, supra, the plaintiff brought an action for criminal conversation. The action accrued in March, 1870, at which time the limitation for bringing the action was six years. In October, 1870, the legislature shortened the limitation period to require that.an action be brought two years “after the cause of action shall have accrued.” The defendant contended that the action, commenced in February, 1873, was barred, because the amendment required that it be brought within two years after the time it had accrued or, in any case, not “beyond two years from the passage of the amendatory act.” In rejecting each contention and holding that the amendment did not apply retroactively, the court stated:
“The amendment makes but one rule for ascertaining when the period is to commence, and it makes no provision for a period to commence at the passage of the act; the time when the ‘cause of action shall have accrued’ is the only point at which the period can commence, and it would be disregarding the statute, rather than construing it, to make the period of two years commence at the passage of the amendment, without regard to the time when the cause of action accrued.
“If any reasonable construction would exclude from the effect of the amendment all cases in which fully two years had then run, and yet include some other cases in which the cause of action had already arisen, we find no rule for determining which of the latter cases should be included, or for discriminating between causes of action that accrued nearly two years before the passage of the act, and those that accrued a month or even a day previous. The computation commencing in all cases at the time the cause of action accrued, it might include cases that would become barred in a week or a day after the passage of the act. As a general rule such construction is not favored, and courts have refused to give a retroactive effect to statutes of this kind, unless that intention is so clear and positive as by no possibility to admit of any other construction.” 5 Or at 21.
Similarly, ORS 138.510(2), as amended, states but one rule for determining when an action must be brought: within 120 days after “the date the judgment or order on the conviction was entered in the register,” if no appeal is taken. It would not be consistent with that expressed intention to *290It would not be consistent with that expressed intention to interpret the statute to provide a grace period of 120 days to those convicted before its effective date. As indicated, I would conclude that the amendment provides no basis for determining that it is to be applied retroactively.
There is another line of cases that bears discussion, however. In Evans v. Finley, supra, 166 Or at 233, an action to establish the priority of a mortgage lien, the Supreme Court accepted the view that the
“legislature may enact a statute which limits the time within which actions may be brought to enforce demands where there was previously no period of limitation or which shortens the existing time of limitations and such a law may operate upon existing contracts without necessarily being invalid as impairing their obligations. * * * [TJhe rule is subject to the limitation that a reasonable time must be given for the commencement of an action before the bar takes effect.” (Emphasis supplied.)
The statute at issue there had been amended to require the filing of an affidavit by the mortgagee every three years in order to retain a priority over subsequent mortgagees. Clearly, the legislature intended the statute to apply retroactively, because it expressly provided a six-month grace period after its effective date to those for whom the time for acting would otherwise have expired before the enactment of the statute.
In Nichols v. Wilbur, 256 Or 418, 473 P2d 1022 (1970), a wrongful death case, the court quoted from a California decision that made essentially the same statement as quoted from Evans:
“ ‘It is clear from the decisions of the courts of this state as well as those of other jurisdictions that a person has no vested right in the running of a statute of limitations unless it has completely run and barred the action. Before the action is barred by the statute, the Legislature has absolute power to amend the statute and alter the period of limitations prescribed therein, subject only to the requirement that a reasonable time must be allowed for the prosecution of an action or proceedings after the passage of an amendment shortening the period.’ ” 256 Or at 419, (quoting Davis & McMillan v. Industrial Acc. Com., 198 Cal 631, 636, 246 P 1046 (1926)).
*291The question in Nichols, however, was whether a statute that extended the limitation period should be applied retroactively. Despite the fact that the statute itself indicated no clear intention that it be applied retroactively, the court held that it should be, also relying on a rule quoted from the California decision that
“ ‘an amendment to a statute of limitations enlarging the period of time within which an action can be brought as to pending causes of action is not retroactive legislation, and does not impair any vested right.’ ” Nichols v. Wilbur, supra, 256 Or at 419, (quoting Davis & McMillan v. Industrial Acc. Com., supra, 198 Cal at 637).
Defendant contends that the two cited cases support the view that a statute that shortens a limitation period will be applied retroactively, so long as a reasonable time after its effective date is provided within which an individual with a previously accrued claim may bring an action. They do not. Nichols, apart from the quotations from the California decision, does not even discuss the retroactive application of a statute shortening a limitation period. Even the California decision dealt with a statute extending the limitation period. Evans is of no help to defendant, because the statute there expressly provided a grace period, thereby clearly indicating that it was to apply retroactively.
There is another reason why defendant’s argument is not persuasive. The requirement for providing a reasonable grace period after the statute’s effective date originated in contract cases to avoid the constitutional prohibition against the impairment of the obligations of contract. See Evans v. Finley, supra, 166 Or at 237. When the legislature expressly provides for a grace period, it expresses its intention that the statute be applied retroactively. In the absence of such a provision, I do not believe that a court’s providing a grace period is a substitute for the legislature’s doing so. That would express our intention, not the legislature’s.
Defendant cites McLaughlin v. Hoover, 1 Or 31 (1853), for the proposition that a “new statute applies if the plaintiff/petitioner actually had a reasonable period after the effective date in which to file the action.” (Emphasis defendant’s.) First, as defendant appears to concede, later cases, including Reynolds Metals Co. v. State Tax Comm., supra; *292Fullerton v. Lamm, supra; and Pitman v. Bump, supra, have rendered McLaughlin an “historical curiosity.” In any event, the case is distinguishable. Unlike here, the new Statute of Limitations there did not change the time for filing an action; it left it as it was. Additionally, as the court concluded, the new statute indicated an intention that it apply to existing claims.
In Wolf v. Goin, 26 Or App 23, 552 P2d 258, rev den (1976), we held that an amendment adding a limitation where none had previously existed applied to an action that had accrued before the amendment’s effective date, where the plaintiff had, in fact, had four years, “a patently ‘reasonable’ period,” 26 Or App at 28, after the effective date of the amendment, within which to bring the action. I would disapprove that decision to the extent that it suggests that an amendment shortening a limitation period is to be applied retroactively, in the absence of an express intention to that effect, just because the plaintiff, in fact, had a reasonable time after its enactment within which to bring the action.
Finally, defendant contends that, although the amendment does not expressly state that it is to be applied to prior convictions, that intention can be inferred from ORS 138.510(2), allowing a waiver of the 120-day period in certain circumstances. ORS 138.510(2) makes the 120-day limitation applicable,
“unless the court bn hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition.”
Defendant argues that that language allows for the filing of an untimely original petition for post-conviction relief if the petitioner has a legitimate excuse for not having filed the petition timely. As I read the quoted language, however, it says nothing about the late filing of original petitions; it deals only with “subsequent” petitions. Neither does the amendment provide a basis for excusing the late filing of a petition; it authorizes the filing of a subsequent petition that states grounds for post-conviction relief that could not reasonably have been raised in the original petition that presumably was filed within the 120-day limitation. The language relied on contains no suggestion that the 120-day limitation should apply to prior convictions.
*293Because I would reverse and remand, I dissent.
Rossman, Edmonds and Durham, JJ., join in this dissent.