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State v. Garel

Court of Appeals of Wisconsin
Aug 10, 2000
Case No. 99-3057-CR (Wis. Ct. App. Aug. 10, 2000)

Opinion

Case No. 99-3057-CR.

Opinion Released: August 10, 2000. Opinion Filed: August 10, 2000. This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL from an order of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.

Before Dykman, P.J., Eich and Roggensack, JJ.


Robert Garel appeals from an order denying his motion for a reduced sentence. The dispositive issue is whether Garel presented clear and convincing evidence of a new sentencing factor. We conclude that he did not and therefore affirm.

¶ 2. Garel was sentenced in 1991 after his probation was revoked on a robbery conviction. Among those testifying at the sentencing hearing was the program manager of a drug and alcohol treatment facility where Garel spent time while on probation. Garel contends that this testimony included privileged information about his treatment and should have been excluded from consideration under the patient's privilege set forth in Wis. Stat. § 905.04(2) (1997-98). The court's alleged error in considering the privileged information was the new factor identified in Garel's motion. However, records and information about treatment ordered as a condition of probation are not privileged. See State v. Verstoppen , 185 Wis.2d 728, 743-44, 519 N.W.2d 653 (Ct.App. 1994). Because the trial court properly considered this information, its use cannot be considered a new factor justifying a reduced sentence.

All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

¶ 3. Garel's brief raises various other issues concerning the 1991 sentencing proceeding. He did not raise them in the trial court and has therefore waived those issues on appeal. See Wirth v. Ehly , 93 Wis.2d 433, 443-44, 287 N.W.2d 140 (1980). Even had he raised them in the trial court, his motion would have been untimely. See State v. Hayes , 167 Wis.2d 423, 425-26, 481 N.W.2d 699 (Ct.App. 1992).

By the Court. — Order affirmed.


Summaries of

State v. Garel

Court of Appeals of Wisconsin
Aug 10, 2000
Case No. 99-3057-CR (Wis. Ct. App. Aug. 10, 2000)
Case details for

State v. Garel

Case Details

Full title:STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. ROBERT GAREL…

Court:Court of Appeals of Wisconsin

Date published: Aug 10, 2000

Citations

Case No. 99-3057-CR (Wis. Ct. App. Aug. 10, 2000)