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Appellate Procedure: Respondent’s Waiver

State v. Roberto Vargas Rodriguez, 2007 WI App 252, PFR filed 11/1/07; on remand from supreme court, and affirming, 2006 WI App 163
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶12      Generally, we do not apply waiver against a respondent who is seeking to uphold a trial court ruling. See State v. Holt, 128 Wis. 2d 110, 124-26, 382 N.W.2d 679 (Ct. App. 1985). If, however, actions by the State prevented fact finding on an issue that could have been resolved, then waiver may be applied. See State v. Nichelson, 220 Wis. 2d 214, 230, 582 N.W.2d 460 (Ct. App. 1998). Here, the State did nothing to prevent necessary fact finding; on the contrary, the State initiated the process from which the trial court made the pretrial findings of witness intimidation that supported the order terminating Rodriguez’s access to telephone, mail and visitors in order to prevent further intimidation.

 

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