Sweat next argues that restitution should not have been ordered because a Texas bankruptcy court discharged the amounts he owed to the victims in January 1990. In State v. Foley, 142 Wis.2d 331, 417 N.W.2d 920 (Ct.App. 1987), however, we relied upon Kelly v. Robinson, 479 U.S. 36 (1986), and the legislative history of § 973.09(1)(b), STATS., to hold that a restitution order is unaffected by bankruptcy proceedings. In Foley, the defendant's debts were discharged in bankruptcy and then he was ordered to repay those debts in restitution as part of his criminal sentence.
In considering the defendant's ability to pay, courts may consider external legal realities as well, such as the fact that a restitution order is not dischargeable in bankruptcy. State v. Foley, 142 Wis. 2d 331, 417 N.W.2d 920 (Ct. App. 1987). There the court held that "[t]he trial court correctly concluded that it could require, as a condition of Foley's probation, that he make restitution to the victims of his crime even though his civil liability to them had been discharged in bankruptcy.
See United States v. Pepper, 51 F.3d 469, 473-74 (5th Cir. 1995); United States v. Carson, 669 F.2d 216 (5th Cir. Unit B 1982); United States v. Alexander, 743 F.2d 472, 479-80 (7th Cir. 1984); United States v. Roberts, 783 F.2d 767, 770-71 (9th Cir. 1985); United States v. Kunzman, 125 F.3d 1363, 1365-66 (10th Cir. 1997); Barnette v. Evans, 673 F.2d 1250 (11th Cir. 1982); People v. Milne, 690 P.2d 829, 837 (Colo. 1984); State v. Angle, 353 N.W.2d 421, 424 (Iowa 1984); State v. West, 845 P.2d 1097, 1103-04 (Ariz. Ct. App. 1992); Baker v. State, 616 So.2d 571 (Fla. Dist. Ct. App. 1993); State v. Hamilton, 935 P.2d 201, 205-06 (Idaho Ct. App. 1997); State v. Muzio, 732 P.2d 879, 880-82 (N.M. Ct. App. 1987); State v. Eyre, 692 P.2d 853 (Wash. Ct. App. 1984); State v. Foley, 417 N.W.2d 920, 923-26 (Wis. Ct. App. 1987); People v. Stavrinoudis, 586 N.Y.S.2d 865, 866-67 (N Y Dist. Ct. 1992). Although each of these decisions construes the Bankruptcy Code as it relates to their own unique restitution statutes, they all have in common a fundamental concern for principles of federalism and judicial comity.
One of its primary purposes is to rehabilitate a defendant. SeeState v. Foley, 142 Wis.2d 331, 338, 417 N.W.2d 920, 924 (Ct.App. 1987). Rehabilitation is furthered by requiring those convicted of crimes to take responsibility for the consequences of their actions. Seeid. at 339, 417 N.W.2d at 924 (citing Huggett v. State, 83 Wis.2d 790, 798-99, 266 N.W.2d 403, 407 (1978)).
We decline to consider new arguments made in the reply brief. SeeState v.Foley, 142 Wis.2d 331, 345 n. 7, 417 N.W.2d 920, 927 (Ct. App. 1987). Klopotowski argues the court erred by admitting testimony of Joseph Tomczak about certain statements by Caroline Nicpon, a neighbor of the victim, in a telephone call to Tomczak.
This court will not review these issues because they were raised for the first time in Marnae S.'s reply brief. SeeState v. Foley, 142 Wis.2d 331, 345 n. 7, 417 N.W.2d 920, 927 n. 7 (Ct.App. 1987). This appeal is reviewed by one judge, pursuant to § 752.31, STATS.
Kennedy's argument that restitution is limited by a jury's determination of the value of stolen property eliminates the sentencing judge's discretion and ignores legitimate sentencing factors, such as the rehabilitative component of restitution. We rejected a similar argument in State v. Foley, 142 Wis.2d 331, 417 N.W.2d 920 (Ct.App. 1987). In Foley, the defendant argued that he was denied his right to trial by jury when the trial court imposed restitution in an amount greater than the damages determined by the jury.
In his first appeal we held that the trial court's failure to show on the record that it had considered Foley's financial resources and his ability to pay when setting $600 per month restitution was an abuse of discretion. State v. Foley, 142 Wis.2d 331, 346-47, 417 N.W.2d 920, 927-28 (Ct.App. 1987) ( Foley I). We reversed the order and remanded for further proceedings. On remand Foley requested a substitution of judge under sec. 971.20(7), Stats., which provides:
We hold that there is no right to a jury trial when a trial court determines the amount of restitution required as a condition of probation. State v. Foley, 142 Wis.2d 331, 342-43, 417 N.W.2d 920 (Ct. App. 1987). Commentators have disagreed as to whether a formal jury trial is required when determining the amount of restitution in a given case.
While a victim may ask the trial court to order a specific amount of restitution, "[t]he victim has no control over the amount of restitution [ordered] or over the decision to order probation and restitution." State v. Foley, 142 Wis. 2d 331, 341, 417 N.W.2d 920 (Ct.App. 1987). ¶ 12. Restitution in a criminal case is governed by Wis. STAT. § 973.20. Pursuant to § 973.20(5), the restitution order