¶1specially concurring:
¶2I concur with the decision of the majority but write separately to more sharply examine the issue raised by defendant concerning the use of the records of his previous court-ordered evaluation. The majority is correct that such records are not privileged under the confidentiality statute. See 740 ILCS 110/10(a)(4) (West 2000). However, the privilege is not deemed waived unless the mental-health provider advises the person being evaluated that the communications made during the evaluation are not privileged and may be revealed to the trial court.
¶3Here, no evidence shows whether defendant was so advised during his 1995 evaluation. As it is defendant’s burden to preserve the issue for review, I am not willing to presume that defendant was not so advised and accordingly concur.