COURT OF APPEALS DECISION DATED AND RELEASED November 7, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2184-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
GREGORY J. LIBKE,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for La Crosse County:
MICHAEL J. MULROY, Judge. Affirmed.
Before Eich, C.J.,
Dykman, P.J., and Vergeront, J.
PER
CURIAM. Gregory Libke appeals from a judgment convicting him
of armed robbery. Libke pleaded guilty
to the charge, and only challenges his sentence on appeal. He contends that the trial court improperly
considered his testimony from another proceeding that was protected by use
immunity. He also contends that the
trial court failed to properly consider the Wisconsin sentencing guidelines
then in effect. We conclude that Libke
waived the first issue, and that the second is not reviewable. We therefore affirm.
Libke made inculpatory
statements, with use immunity, at an accomplice's preliminary hearing. At his sentencing hearing, the prosecutor
described those statements to the trial court, which considered them when it
imposed sentence. However, Libke failed
to object to the description and consideration of his protected testimony. We therefore deem the issue waived. See State v. Skamfer,
176 Wis.2d 304, 311, 500 N.W.2d 369, 372 (Ct. App. 1993). It is true that we may excuse a waiver and
review an issue where the interest of justice require it and where there are no
factual issues which require resolution.
See id.
That is not the case here because a factual dispute remains whether the
prosecutor had other sources for Libke's inculpatory statements. Only if the prosecutor had no other source
for the inculpatory information would resentence be necessary. State v. J.H.S., 90 Wis.2d
613, 617, 280 N.W.2d 356, 358-59 (Ct. App. 1979).
We do not review whether
the trial court properly considered the sentencing guidelines, as was formerly
required by § 973.012, Stats. The trial court's failure to comply with
that statute is not an appealable issue.
State v. Elam, 195 Wis.2d 683, 685, 538 N.W.2d 249, 250
(1995).
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.