dissenting.
I respectfully dissent. Today, the Court mandates that prosecutors second guess the holdings of appellate courts and submit evidence in anticipation of a post-trial change in the standard of proof. In so ruling, the Court adopts a special rule applicable only to the DWI prior and persistent offender statutes that is contrary to this Court’s precedent and unfairly impedes the state’s efforts to keep repeat drunk drivers off Missouri’s roads. In contrast, on the finding that Vanessa Severe’s claim of error is meritorious, I would follow precedent and remand the case to the trial court for additional proceedings during which the state can present evidence under the new standard of proof to show that Ms. Severe is a persistent DWI offender.
Ms. Severe was charged with the class D felony of DWI for acts that occurred January 12, 2007. The information filed against her also charged that she was a prior and persistent offender under section 577.028.1 She was tried by a jury October 31, 2007.
As noted by the majority, a persistent DWI offender under section 577.023 is “a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses.” At both the time Ms. Severe was charged and the time of her jury trial, the law was that an *646“intoxication-related traffic offense” for purposes of section 577.023 included a guilty plea to a municipal DWI charge with a suspended imposition of sentence (SIS). State v. Meggs, 950 S.W.2d 608, 612 (Mo.App.1997). In Meggs, the court of appeals interpreted the definition of “intoxication-related traffic offense” in section 577.023 to include pleas of guilty to a DWI in violation of a municipal ordinance, whether a sentence was imposed or imposition of sentence was suspended. Id. In accordance with such law, the state alleged in its information that Ms. Severe was a persistent offender because she had been convicted previously of a class B misdemeanor of driving while intoxicated and had pled guilty to a municipal charge of DWI and received an SIS.
At trial, as required by section 558.021.1, the state presented evidence regarding Ms. Severe’s prior intoxication-related traffic offenses prior to the case’s submission to the jury. That evidence proved Ms. Severe’s class B misdemeanor conviction and her municipal plea of guilty and SIS for DWI. Ms. Severe never asserted at trial that the municipal plea of guilty and SIS did not meet the definition of an intoxication-related traffic offense under section 577.023. Following the law as it existed at the time of trial, the trial court found that the evidence of Ms. Severe’s state DWI conviction and municipal plea of guilty with an SIS was sufficient to prove that Ms. Severe was a persistent offender. The case was submitted to the jury only on the issue of guilt, and the jury found Ms. Severe guilty of the class D felony of DWI. The trial court subsequently sentenced Ms. Severe to three years in the department of corrections, and she appealed her conviction and sentence.
While her appeal was pending, this Court ruled in Turner v. State that conflicting subsections in section 577.023 created an ambiguity as to whether a plea of guilty to a municipal DWI ordinance where imposition of sentence is suspended is included in the definition of “intoxication-related traffic offense.” 245 S.W.3d 826, 828 (Mo. banc 2008). The Court found that the rule of lenity2 required a finding that prior municipal DWI offenses resulting in an SIS do not qualify as intoxication-related traffic offenses to enhance punishment under section 577.023. Id. at 829. This ruling was contrary to the holding in Meggs and, although the Court did not reference Meggs in its opinion, the effect of Turner was to overrule the holding of Meggs. See T.Q.L. ex rel. M.M.A. v. L.L., 291 S.W.3d 258, 264-65 (Mo.App.2009) (lower courts constitutionally are bound to follow the most recent controlling decision of the Supreme Court of Missouri); see also Mo. Const, art. V. sec. 2 (“The supreme court shall be the highest court in the state.... Its decisions shall be controlling in all other courts.”).
When an appellant is successful in challenging the standard of proof for a criminal offense, the remedy is to remand the case for retrial under the proper standard of proof. State v. Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994). In Cobb, the trial court found the defendant to be a persistent DWI offender because the state proved two prior intoxication-related offenses committed within a ten-year period. Id. at 534. While Cobb’s case was pending on appeal, this Court decided State v. Stewart, 832 S.W.2d 911 (Mo. banc 1992), which held that Missouri’s persistent DWI *647offender statute only can be invoked by proof of three prior convictions. Id. This Court held that a remand to allow the state the opportunity to prove a third prior conviction did not violate double jeopardy. Id. at 537. To resolve Ms. Severe’s case, this Court should rely on the rationale of Cobb because it is virtually factually identical to this case. 875 S.W.2d 538 (Mo. banc 1994).3
The remedy imposed by this Court in Cobb is consistent with the general principle that, when an appellant is successful in proving error on appeal, the remedy depends on the type of error that warranted reversal. State v. Wood, 596 S.W.2d 394, 397-98 (Mo. banc 1980). “[Rjeversal for trial error, as distinguished from evidentia-ry insufficiency, does not constitute a decision to the effect that the government has failed to prove its case.... [I]t is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecuto-rial misconduct.” Burks v. U.S., 437 U.S. 1, 15, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). “When this occurs, the accused has a strong interest in obtaining a fair readjudi-cation of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” Id. In a defective judicial process case, double jeopardy is not implicated by the prosecution’s second opportunity to try the defendant. Id. at 18, 98 S.Ct. 2141. On remand for trial error, the state may build its ease by presenting new evidence on any element. Lockhart v. Nelson, 488 U.S. 33, 42, 109 S.Ct. 285, 102 L.Ed.2d 265 (1988).
In determining that the state should be precluded from presenting evidence of any other prior intoxication-related offenses of Ms. Severe on remand, the majority opinion treats this case as though it is an insufficiency of the evidence case. It is not. It is an erroneous application of the law regarding the standard of proof for DWI prior and persistent offender status. That is a matter of judicial error, not insufficiency of the evidence, and the state should be able to present new evidence on remand.
The concept of whether the prosecutor should be permitted to rely on this Court’s rulings in deciding what evidence to present is analyzed in Wood, where evidence was admitted improperly. Wood, 596 S.W.2d at 398-99. Even though questions going to sufficiency of the evidence as well as trial error were raised on appeal, this Court held:
The prosecution in proving its case is entitled to rely on the rulings of the court and proceed accordingly. If the evidence offered by the State is received after challenge and is legally sufficient to establish the guilt of the accused, the State is not obligated to go further and adduce additional evidence that would be, for example, cumulative. Were it otherwise, the State, to be secure, would have to assume every ruling by the trial court on the evidence to be erroneous and marshal[l] and offer every bit of relevant and competent evidence. The practical consequences of this would adversely affect the administration of justice, if for no other reason, by the time that would be required for preparation and trial of every case.
Id. Erroneous admission of evidence does not preclude retrial “even though when such evidence is discounted there may be evidentiary insufficiency.” State v. Kin*648head, 983 S.W.2d 518, 519 (Mo. banc 1998). These concepts apply equally to erroneous application of the standard of proof as to error in admitting evidence.
By precluding the state from presenting evidence on remand, the majority creates a special remedy for judicial error in DWI prior and persistent offender cases. It misinterprets section 577.028.8 to preclude the state from presenting evidence of prior offenses on remand. Section 577.023.8 specifies that, “[i]n a jury trial, the facts [establishing persistent offender status] shall be pleaded, established, and found prior to submission to the jury outside of its hearing.” The timing requirement is a procedural requirement for trial; its purpose is to allow the judge to determine whether sentencing is to be decided by the jury or the judge prior to submitting the case to the jury. State v. Teer, 275 S.W.3d 258, 263 (Mo. banc 2009) (Fischer, J., concurring). It is crucial that the prior and persistent offender status be established and found prior to submission to the jury because, if the state cannot adduce evidence of the defendant’s prior offenses, the issue of punishment must be submitted to the jury. Id. The purpose of the timing requirement is not contravened by the state having the opportunity to present evidence of the defendant’s prior offenses on remand after a finding of judicial error, such as application of an erroneous standard of proof. There is no language in the statute to indicate that the legislature intended the procedure to apply on remand from an appellate court. The statute was not intended to govern such circumstance and has no application in the present case.
In this case, the prosecutor’s conduct does not violate the holdings of State v. Emery or State v. Teer. 95 S.W.3d 98 (Mo. banc 2003); 275 S.W.3d 258 (Mo. banc 2009).4 In those cases, this Court held that to sentence a defendant as a prior and persistent offender, the state must present evidence to prove the status before the case is submitted to the jury. Emery, 95 S.W.3d at 101; Teer, 275 S.W.3d at 261. When the state fails to offer this evidence at the proper time, it may not present evidence of the alleged prior and persistent offender status on remand because such an opportunity would violate the timing requirement of the statute. Emery, 95 S.W.3d at 101; Teer, 275 S.W.3d at 261.
This case is distinguishable from Emery and Teer. In Emery, the state failed to offer any evidence of the defendant’s persistent offender status at trial. 95 S.W.3d at 101. In Teer, the state presented the evidence after the case had been submitted to the jury. 275 S.W.3d at 260. In this case, there was no prosecutorial laxity. The state properly and timely offered evidence of Ms. Severe’s persistent offender status. The state complied with the mandatory pleading and proof requirements of section 577.023.8 during the trial. The offered evidence was sufficient to establish Ms. Severe as a prior and persistent offender until this Court decided Turner v. State, 245 S.W.3d at 826.
To support its conclusion, the majority opinion wrongfully states that “Turner created no new law.” Turner overruled Meggs. This Court was not bound to follow the court of appeals interpretation of section 577.023 in Meggs and was free to determine that the court of appeals’ inter*649pretation was erroneous. However, until that occurred, the court of appeals’ interpretation of section 577.032 was the existing law, and the state and the trial court were properly were following that precedent. See Lombardo v. Lombardo, 120 S.W.3d 232, 243 (Mo.App.2003) (lower courts are bound by the decisions of appellate courts).
In further justifying its holding, the majority says that the state should not be given “two bites at the apple” by being permitted to have the case remanded so it could present evidence of other DWI convictions of Ms. Severe. That rationale invokes concepts of fairness and in doing so the majority ignores the fact that it is granting Ms. Severe plain error relief. Ms. Severe did not preserve her challenge to the standard of proof by raising the issue at trial. While I agree that is it fundamentally fair to grant Ms. Severe plain error relief in light of this Court’s holding in Turner, it is fundamentally unfair to require the state to predict a post-trial change in the standard of proof when that issue never was raised at trial. I do not agree that the language of the statute alone should have put the state on notice that it could not rely on the standard of proof established by Meggs.
The majority’s opinion is contrary to precedent and unfairly precludes the state from offering evidence of Ms. Severe’s pri- or DWI convictions on remand. The adjudication that Ms. Severe was a persistent offender was reversed because the trial court used an erroneous standard of proof, and on remand the state should be permitted to present additional evidence. Such an outcome does not offend the timing requirement for presenting of evidence of prior and persistent offender status at trial imposed by section 558.021.2 or the cases holding that such timing requirement is mandatory. Nor does the remand for additional evidence offend the Double Jeopardy Clause.
. All statutory references are to RSMo Supp. 2007 unless otherwise indicated.
. The rule of lenity is a rule of statutory construction that is used when a criminal statute is ambiguous. Bifulco v. U.S., 447 U.S. 381. 387. 100 S.Ct. 2247. 65 L.Ed.2d 205 (1980). Under the rule of lenity, any ambiguity in a criminal statute must be construed in favor of the defendant and against the state. Id.
. The fact that Cobb does not address the timing requirement of the statute has no bearing on Ms. Severe's case because the state did comply with the statute's timing requirement as the law at that time dictated. See discussion in text infra.
. Emery and Teer dealt with section 558.021.2, whereas this case deals with 577.023. Section 577.023 provides for extended prison sentences for those who are prior or persistent offenders of intoxication-related offenses. Section 558.021 provides ior sentence enhancement for those who are prior or persistent offenders of other offenses. Both statutes contain identical language that requires presentation of such evidence prior to the case’s submission to the jury.