dissenting.
Although I agree that petitioner’s petition should not have been dismissed, I do so because I believe that the newly enacted Statute of Limitations, ORS 138.510(2), is unconstitutional for the reasons stated in my dissent in Bartz v. State of Oregon, 110 Or App 614, 619, 825 P2d 657, rev allowed 313 Or 209 (1992), not because ORS 138.510(2) provides the “escape” clause theory adopted by the majority.
From the beginning of litigation concerning the new Statute of Limitations, the state has attempted to soften its harsh effects on convicted persons. To avoid the harshness of its contention that the statute applies retroactively, it offered a “grace period” to those persons convicted before the effective date of the statute. Out of thin air, it took the gratuitous, *188and gracious, position that it would waive the Statute of Limitations for persons convicted before the effective date, if they filed petitions within 120 days after the Statute of Limitations became effective. A majority of this court accepted that offer in Boone v. Wright, 110 Or App 281, 822 P2d 719 (1991), rev allowed 313 Or 209 (1992), when it held, that the statute applies retroactively.
The state has also graciously argued consistently that ORS 138.510(2) provides a “safety valve” or “escape clause” for those who file too late, if they allege facts that show that the grounds for relief could not have been raised before the limitation period had run. Previously, we have paid lip service to that “interpretation” of that statute. See Morrow v. Maass, 109 Or App 694, 695, 820 P2d 1374 (1991), rev den 312 Or 676 (1992). Now, the majority accepts and applies it.
ORS 138.510(2) provides:
“(2) A petition pursuant to ORS 138.510 to 138.680 must be filed within 120 days of the following, unless the court on hearing a subsequent petition finds grounds for relief asserted which could not reasonably have been raised in the original or amended petition:
“(a) If no appeal is taken, the date the judgment or order on the conviction was entered in the register.
“(b) If an appeal is taken, the date the appeal is final in the Oregon appellate courts.”
The majority holds: “ ‘Subsequent petition’ means a post-conviction petition that is filed after the expiration of the applicable 120-day limitation period.” 114 Or App at 187. It completely ignores the language: “which could not reasonably have been raised in the original or amended petition.” Obviously, the statute requires that there have been an “original or amended petition” that was timely. The “subsequent petition” is permitted to raise entirely new grounds for relief only if it alleges grounds that could not reasonably have been raised in the timely petition. That is not this case.
The majority says that, if the statute means what it says, prisoners would be encouraged to file timely, frivolous petitions to reserve a forum for untimely petitions, which it characterizes as an “absurd result.” 114 Or App at 186-87. *189We did not write the statute; if it is absurd, the legislature can amend it. In any event, we know that, even before there was a time limitation for filing post-conviction petitions, a large number of them were amended after an attorney was appointed, and the vast majority of them have been frivolous in both their original and amended forms. That is beside the point; it is the 1 percent or 2 percent that are meritorious that should concern us. The Post Conviction Relief Act was intended to replace habeas corpus; ORS 138.510 effectively destroys that purpose without reviving habeas corpus in its former status. Bartzv. State of Oregon, supra, 110 Or Appat616 (Buttler, J., dissenting).
If our decisions in Boone and Bartz are correct, petitioner is out of luck; dismissal was proper. This court’s attempts to ameliorate the harshness of the limitation by accepting the state’s offer of grace is unfounded in the statute and is inappropriate.
I would reverse and remand for trial.