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The Missouri Supreme Court on Tuesday reversed a Gentry County woman's felony drunken driving conviction as a persistent offender.

She won't receive a new trial, but the court sent the case back to Gentry County Circuit Court for re-sentencing, during which the state can't provide any new evidence of prior drunken driving offenses that could successfully label her as a persistent offender.

Both the state and the appellant's attorneys had agreed on a remand, but up for debate was the latter sentencing stipulation.

"Because of the timing requirement of the statute - which requires the trial court to determine persistent offender status before the case is submitted to the jury - there is no opportunity for the state to have a twice-bitten apple," Judge Michael Wolff wrote in the court's 5-2 opinion. Judge Patricia Breckenridge and Chief Justice William Ray Price Jr.dissented.

Richard Starnes, of the attorney general's office in Jefferson City, during oral arguments sought the ability to present more evidence. Nancy McKerrow, of the public defender's office in Columbia, said that the Supreme Court should only allow the lower court to sentence her client to a class A misdemeanor.

"The more important impact of this case is prosecutors will have to obey the enhancement statutes and prove them up before cases are submitted to the jury," McKerrow said in an interview. "No longer will prosecutors be given a second chance to fix what they didn't do in the first place."

Starnes couldn't be immediately reached for comment Monday. Nanci Gonder, a spokeswoman for the office, declined to comment.

Breckenridge, however, contended that the state had showed evidence that was adequate under the law until the Supreme Court decided a separate drunken driving case while the one from Gentry County was on appeal.

"Today, the Court mandated that prosecutors second guess the holdings of appellate courts and submit evidence in anticipation of a post-trial change in the standard of proof," Breckenridge wrote in a dissenting opinion.

According to court documents, Vanessa Severe flipped her car into a ditch in January 2007 in Gentry County. A member of the Missouri State Highway Patrol was suspicious that she was intoxicated. She eventually failed various tests given by the patrolman and was arrested for DWI.

At trial, prosecutors noted that Severe had two prior convictions. Severe pleaded guilty to a municipal infraction where she received a suspended imposition of sentence. She also pleaded guilty to another DWI incident, which was a class B misdemeanor.

Severe was ultimately convicted of a class D felony of driving while intoxicated as a persistent offender.

A persistent offender is "a person who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses."

She was sentenced to three years in prison. But at the time of her appeal, the Missouri Supreme Court decided in State v. Turner that municipal offenses can't be used to "enhance" DWI sentences.

"Here, Turner created no new law," Wolff wrote. "The state was on notice by the plain language of [the law] that a guilty plea followed by a suspended imposition of sentence in 'municipal court' was not to be treated as a prior conviction."

Wolff concluded, "If there were other potential convictions to be used at trial, the state should have presented that evidence before the cause was submitted to the jury."

Breckenridge said Wolff's assertion was "wrong" and that Turner did create new law.

She said at the time Severe was charged and at her Halloween 2007 jury trial, intoxication-related traffic offenses included guilty pleas to municipal DWI charges with a suspended imposition of sentence, under caselaw in effect at the time.

"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," she said.

She instead called for the case to be remanded to the trial court for additional proceedings so the state could present evidence under the new standard of proof.