Phelan Crooks was convicted in Fayette Circuit Court of knowingly receiving stolen property. The jury recommended a sentence of three and one-half (3½) years imprisonment, which the trial court imposed.
Then, in the second phase of a bifurcated proceeding, Crooks was also found guilty by the jury of being a persistent felony offender in the first degree, but the jury was unable to agree upon a verdict.
Ultimately, the jury sent the trial judge a note saying that they had reached a unanimous decision that Mr. Crooks was “guilty,” but they were unable to reach a unanimous decision on the penalty to be imposed. Thereafter, the trial judge directed that the jury return its “verdict of guilty” in open *476court and that he would fix the penalty. The jury returned with the following verdicts written on the form provided:
“(b) We, the jury, find the defendant guilty.
Foreman /s/ Allen W. Richards The jury is deadlocked as to the punishment to be imposed.
/s/ Allen W. Richards”
After the jury was discharged, upon motion of the Commonwealth and over the objection of Crooks, the trial court then imposed the minimum sentence authorized for a person who stands convicted of a Class C or Class D felony, who is then convicted as a persistent felony offender in the first degree, which is ten (10) years imprisonment. KRS 532.080(6)(b).
On appeal, the Kentucky Court of Appeals held: (1) that in the absence of a recommendation by the jury, the trial court erred in fixing Crooks’ punishment on the persistent felony offender charge and (2) that the jury’s failure to agree upon an appropriate penalty is tantamount to a mistrial and thus does not prevent Crooks’ retrial as a first-degree persistent felon.
Both Crooks and the Commonwealth sought discretionary review by this Court. We granted their motions and now affirm the decision of the Court of Appeals in all respects.
First we consider whether it was proper for the trial court to impose the minimum penalty for Crooks when the jury found guilt but failed to agree upon punishment. We agree with the Court of Appeals that this was reversible error and adopt the following from the opinion by Judge How-erton as an appropriate statement of the law:
“Although at first blush it seems logical that there can be no prejudicial effect if the court imposes a minimum sentence, we must nevertheless agree that it is legally impermissible for the trial court to do this. KRS 532.080 specifically provides that the jury ‘shall’ fix the sentence to be imposed in a PFO conviction. The statute and the commentary require the jury not only to find guilt but to fix the sentence. It is only after the jury has fixed the penalty that the judge may proceed to enter judgment sentencing the defendant ... (citation omitted).
“... (I)n PFO proceedings, the finding of guilt and the fixing of an appropriate sentence are inextricably linked, and no final action has been taken until the jury performs both functions.”
Having decided that the trial court lacked authority to sentence Crooks as a persistent felony offender in the absence of the jury’s recommendation as to punishment, we must now consider whether he is subject to retrial on the charge. We conclude that he can properly be retried.
A defendant is not placed in double jeopardy when retried for the same offense after the jury in the first trial has been unable to make a determination as to guilt or punishment. Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977); Cornwell v. Commonwealth, Ky., 523 S.W.2d 224 (1975). The logic of this rule is even more compelling in the present case where the jury found Crooks guilty of both the principal offense and the status offense but simply deadlocked on the overall penalty to be imposed. However, Crooks contends we cannot follow the same rule on the additional charge of being a persistent felony offender because of certain language in the Commentary to the Penal Code.
The Commentary is advisory (KRS 500.100). In this instance it gives bad advice. We see no reason to believe that the legislature intended the incongruous result that the Commentary to KRS 532.080 suggests. The last sentence in the Commentary states: “If the jury is unable to agree unanimously that the defendant is a persistent felony offender or as to the sanction to be imposed upon him the sentence fixed by the jury under KRS 532.060 (for the primary offense) shall stand.” But this is a gratuitous addition to the section on “Persistent Felony Offender Sentencing” rather than an appropriate explanation of anything contained in that section.
*477The persistent felony offender sentencing statute, KRS 532.080, contemplates that it may be appropriate to try the defendant separately and at a later time on the persistent felony offender charge. It states, “Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense unless the court for good cause discharges that jury and impanels a new jury for that purpose.” When the jury was unable to agree upon a sentence as to the persistent felony offender charge, it was discharged “for good cause.” In conformity with that statute a new jury should now be impaneled to consider the persistent felony offender charge.
To follow the Commentary we would reach this bizarre result: at the same time the defendant is both guilty and acquitted. The legislature did not intend such a result. To quote Judge Henry Friendly of the United States Court of Appeals, Second Judicial Circuit, “guilt is not irrelevant.”
Crooks has raised four additional issues on this appeal, each of which we believe were properly resolved by the Court of Appeals.
We affirm the decision of the Court of Appeals in all respects.
LEIBSON, STEPHENSON and WIN-TERSHEIMER, JJ., and WILLIAM L. SULLIVAN, Special Justice, concur. HOBGOOD, BYRON L., Special Justice, files a dissent in which STEPHENS, C.J., and AKER, J., join.