dissented in Polus, finding that the discussion of ov 12 in Warner was not dicta. Judge Griffin believed the decision in Warner was binding precedent pursuant to Administrative Order No. 1990-6.
*803More recently, another panel of this Court held that the Polus Court erred in concluding that Warner was not controlling with regard to the issue whether the trial court may consider prior conduct between the defendant and the victim in scoring ov 12. People v Bivens, 206 Mich App 284, 287; 520 NW2d 711 (1994). The Bivens Court reasoned that the consideration whether prior conduct can be used in scoring ov 12 was essential to the determination whether ov 12 was scored properly in Warner. Id. Thus, the Bivens Court concluded that the language in Warner was not dicta, and that the Warner decision resulted in a rule of law concerning the scoring of ov 12 to which Administrative Order No. 1990-6 applied. Id. Applying Warner, the Bivens Court held that the trial court properly scored fifty points for ov 12 because the presentence report revealed and the defendant admitted that he penetrated the victim on prior occasions.
Although Judge Michael Kelly concurred in Bivens, he concluded that Warner was inapplicable because the Warner Court never directly addressed the issue whether prior incidents of sexual penetration between the defendant and the victim can be appropriately considered when scoring ov 12. Id. at 288. Judge Kelly reasoned that because the Polus Court directly addressed this issue, Polus, rather than Warner, establishes the applicable rule of law. Id.
Although we conclude that this Court’s decisions in Warner and Bivens represent the better-reasoned view, we agree with Judge Kelly’s concurrence in Bivens. Because Polus directly addresses the issue of prior penetrations with respect to the scoring of ov 12, we are bound by Administrative Order No. 1994-4 to follow the Polus decision. Accordingly, we hold that evidence of prior instances of sexual penetration between defendant and the victim were inappropriately considered by the trial court in its scoring of ov 12.1
Were we not bound by the Polus decision, we would conclude that the trial court’s scoring was appropriate. That is, as Judge Griffin noted in his dissent in Polus: " '[T]he penetrations were properly scored under ov 12 because the multiple penetrations were from the same overall criminal transaction-—-years of molestation.’ ” Polus, supra, at 206, quoting People v Harris, unpublished opinion per curiam of the Court of Appeals, decided September 17, 1992 (Docket No. 126931). We believe that evidence of prior instances of sexual penetration between the defendant and the victim should be considered in the scoring of ov 12. In this case, we would conclude that the fact that defendant admitted molesting his daughter daily for over two years supported the court’s assessment of fifty points for ov 12. However, we must remand this case in order to afford the trial court *804the opportunity to resentence defendant if it concludes that a lesser sentence is appropriate in light of the revised guidelines scoring. "It is the trial court’s prerogative to make that determination, not ours.” Polus, supra at 204.
Remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
J. G. Collins, J., concurred.We note that another panel of this Court has recently addressed this issue, finding that the decision in Polus is binding under Administrative Order No. 1994-4. People v Hyland, 212 Mich App 701; 538 NW2d 465 (1995). We agree with the Hyland Court that Polus is dispositive. However, unlike the Court in Hyland, at 714, we do not believe that Bivens was wrongly decided.