¶1concurring in part and dissenting in part: I concur fully in the holding of the majority that tire amount of restitution to an aggrieved party for the damage or loss caused by a defendant’s crime is to be determined by a trial judge exercising his or her judicial discretion. Nevertheless, I disagree with the majority’s holding that the trial judge properly applied his discretion in determining restitution in this matter.
¶2In ordering restitution in this case, the trial judge explained that although JC Penney’s loss was less than the $1,168 it requested as restitution, he would order restitution in this amount because the parties had presented him with no other amount:
“In the Court’s opinion the JC Penneys store is entitled ... to recouping any actual loss they have suffered. I don’t think today during the hearing I have heard what tlrat loss is. They didn’t lose $1,168. They lost their actual cost of that mer*585chandise. The fact that they didn’t make a profit is really not normally an issue that tire Court would award them in terms of restitution. But frankly, it’s the only figure I’ve got. It’s the only one that was presented by either side, and absent any other information, which is all past at this point, the Court will enter an order of restitution for tire amount of $1,168 in favor of JC Penneys.”
¶3When die trial judge stated that he was left with only one choice, I believe this was an abuse of discretion.
¶4An abuse of discretion occurs when a trial judge fails to appreciate tire discretion he or she has. State v. Horton, 292 Kan. 437, 440, 254 P.3d 1264 (2011); see also State v. Parker, 48 Kan. App. 2d 68, 76, 282 P.3d 643 (2012) (“Discretion is granted to a trial judge so that decisions can be made based on appropriate consideration in a given case. And an abuse of discretion does occur if the judge refuses to exercise discretion or fails to appreciate the discretion he or she has.”)- Here, the trial judge was not required to adopt JC Penney’s requested restitution amount of $1,168 because this was the only amount submitted for consideration. For example, the trial judge could have stated that JC Penneys evidence of the damage or loss caused by the defendant’s crime was inadequate and required JC Penney to furnish additional information. The trial judge could have required JC Penney to provide the court with the actual cost of the merchandise.
¶5Because the trial judge failed to appreciate the discretion he had, it is impossible to determine whether tire abuse of discretion resulted in the prejudice of the defendant. See Horton, 292 Kan. at 440-41. Thus, I would remand this matter to the trial court for a new determination of the amount of restitution to be ordered.