CONCURRING OPINION
ZEL M. FISCHER, Judge.I concur in the result of the principal opinion. I write separately to express my views more completely about certain aspects of this case and in particular to encourage courts to restrain from judicial emasculation of legislative direction.
In McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), the United States Supreme Court made clear that there is no constitutional right to jury sentencing. Missouri, however, grants the guilty the statutory right to jury sentencing unless that right is waived or subject to removal by another statute. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003). Here, as in many cases, sentencing by the trial court would have been proper if the State had pleaded and proven the defendant was a prior and persistent offender as set out in sections 557.036 and 558.021.1
The language in section 558.021 is unambiguous when it states that to be classified as a prior offender, thereby removing jury sentencing, the prior offender status “shall be pleaded, established and found prior to submission to the jury....” One primary purpose of having the prior offender status pled and proven before submission to the jury is because the status of the defendant removes the defendant’s statutory right to jury sentencing. Section 557.036.2. Absent prior or persistent offender status, section 557.036.2 provides the jury the opportunity to set a sentence lower than the maximum sentence. The jury’s function is to provide a ceiling on the sentence the defendant will receive. A judge can impose a lesser punishment but cannot exceed the punishment recommended by the jury unless the jury’s recommendation is below the legal limit. Rules 29.05 and 29.06; Emery, 95 S.W.3d at 102. The legislature, lawyers, and judges understand the potentially significant trial strategy decisions that would differ between jury and judge sentencing. Consistent with that reasoning, section 557.036 provides that if the criminal defendant desires to waive his right to jury sentencing, he must do so before trial begins.
As a practical matter, when should the attorneys and litigants know whether sentencing is being tried to the judge or the jury? Before trial begins would seem to be a sensible time for both sides to know whether the sentencing is being done by the jury or the judge. The first instruction given after the jury is sworn in a criminal case advises the jury if it will be assessing punishment, including sentencing. MAI-CR 300.06. The jury was instructed in this case if it found the defendant guilty, there would be a second stage where it would determine the punishment to be assessed.
The removal of jury sentencing by amendment to pleadings and presentation of proof after submission to the jury is implicitly prejudicial. The prejudice to the defendant in this case is that the rules of the game were changed after the game was over. As the dissenting opinion notes, defense counsel objected to the State’s late request to amend the information because had he known there would not be jury sentencing, he would have employed a different trial strategy.
It is undisputed in this case that the defendant’s status as a prior offender was not pled or established until after the ease *264was submitted to the jury. Therefore, the trial court’s judgment concerning sentencing should be reversed, and the trial court should be ordered to sentence Teer in accord with the jury’s verdict.2
The result in this case is controlled by this Court’s unanimous opinion in Emery. In Emery, the trial court sentenced the defendant as a prior and persistent offender despite the State’s failure to offer any evidence of the defendant’s prior or persistent offender status prior to submission to the jury. 95 S.W.3d at 99. On appeal, the State requested remand to present evidence of the defendant’s status, contending that the failure to present the evidence was harmless error because if the defendant was proven to be a prior and persistent offender, he would suffer no prejudice. Id. at 100-01. This argument was unanimously rejected by this Court, but is the sole basis for the dissenting opinion in this case. This Court in Emery recognized that general remand would violate the timing requirement of section 558.021.2 and refused to grant general remand, noting, “The question is whether this Court should order the trial court to commit a second error in order to correct its previous error. Or, to put it another way, should the Court follow the old adage that two wrongs do not make a right?” Id. at 101.3
Moreover, the State’s argument that the general language of Rule 23.08 regarding amendment of an information should be controlling over the specific language of section 558.021.2 lacks merit. This particular legislative mandate governs not only the pleading in this type of case, but also the order of proof in this type of case and what must be established prior to submission to the jury. “Where the legislature has enacted a statute pertaining to a procedural matter [that] is not addressed by or inconsistent with any supreme court rule, the statute must be enforced.” State ex rel. Kinsky v. Pratte, 994 S.W.2d 74, 76 (Mo.App.1999), citing State ex rel. Heilmann v. Clark, 857 S.W.2d 399, 401 (Mo.App.1993).
The only question remaining would be why the decisions in State v. Golatt, 81 S.W.3d 640 (Mo.App.2002); State v. Hinkle, 987 S.W.2d 11 (Mo.App.1999); State v. Thicker, 797 S.W.2d 794 (Mo.App.1990); State v. Street, 735 S.W.2d 371 (Mo.App.1987); State v. McGowan, 774 S.W.2d 855 (Mo.App.1989); State v. Jennings, 815 S.W.2d 434 (Mo.App.1991); and State v. Wynn, 666 S.W.2d 862 (Mo.App.1984), which failed to follow the clear legislative *265mandate, should not be overturned? These cases have judicially acquiesced in the removal of the right to a jury trial on sentencing without strict adherence to the clear mandatory directives of the legislature. The Street comment quoted in the principal opinion has come to fruition. “If the courts continue to indulge the laxity which has characterized so many cases of extended term sentencing, a judicial emasculation of the legislative direction will be the accepted procedural norm.” Street, 735 S.W.2d at 373. In Jennings, the court stated, “In McGowan, the Western District of this court reiterated its dissatisfaction with prosecutorial laxity in complying with the timing provision of § 558.021.2, RSMo 1986 and warned that future violations would be dealt with harshly. McGowan, 774 S.W.2d at 858. We echo both the sentiment and admonition of McGowan.” 815 S.W.2d at 446. Yet, Hinkle, Golatt and this case have followed.
The legislature’s decision in a single statutory scheme to remove jury sentencing from prior and persistent offenders only in cases where the prior or persistent offender status has been pleaded and proven prior to submitting the case to the jury is no more nor no less important than the legislature’s decision to extend the length of sentences of prior and persistent offenders. The courts of this state should declare the law accordingly; therefore, I would give proper deference to the legislature and specifically overturn Jennings, McGowan, Tincher, Hinkle, Wynn, and Golatt.
. All statutory citations are to RSMo 1994.
. The dissenting opinion rationalizes that "the legislature cannot have intended its scheme of extended term sentencing for prior offenders be rendered a nullity by trial court mistakes that are not unfair to the defendant.” This statement ignores basic principles of judicial philosophy and the primary rule to give effect to the legislative intent as reflected in the plain language of the statute. State ex rel. Selimanovic v. Dierker, 246 S.W.3d 931, 932 (Mo. banc 2008). In determining when it was fair to remove jury sentencing and enhance punishment, the legislature provided that pri- or convictions, if any, had to be pled and established prior to submission to the jury.
. The dissenting opinion mischaracterizes this Court's opinion in Emery regarding the mandatory pleading and proof requirements of section 558.021.2. In this case, and in Emery, it is undisputed that there was no evidence of prior convictions prior to submission of the case to the jury, which is the operative requirement of the statute. In Emery, the prior convictions were pled in the original information, but not proven prior to submission to the jury. In this case, the prior convictions were not pled or proven prior to submission to the jury. This Court in Emety did not remand the case for the defendant to be sentenced by the jury, as stated by the dissent, but rather remanded the case to the trial court to sentence the defendant on what was pled and established prior to submission of the case to the jury.