dissenting. I respectfully dissent from the majority’s disposition of the defendant’s claim that this court does not have subject matter jurisdiction over this appeal. It is my opinion that this issue must be resolved in favor of the defendant because the trial court’s order denying with prejudice the state’s request to appeal is governed by the majority decision in State v. S & R Sanitation Services, Inc., 202 Conn. 300, 521 A.2d 1017 (1987).
The record before us clearly requires that we examine the threshold question of our jurisdiction to entertain this appeal and to dismiss it if we lack subject matter jurisdiction. Id., 301-302 n.2; State v. Phillips, 166 Conn. 642, 644, 353 A.2d 706 (1974).
General Statutes § 54-96 provides that the state “may” appeal “all questions of law” in a criminal case “with the permission of the presiding judge.” It bears repeating that “[t]he statutory language unmistakably confers upon the trial court the choice of granting or withholding the appeal privilege depending upon the circumstances of each case. It is apparent from the permissive language of the statute that the legislature did not intend that permission to appeal be granted in every case in which it is sought.” State v. S & R Sanitation Services, Inc., supra, 308. “[A]s the dominant intention of the legislature [in enacting § 54-96] was to extend the right of appeal to the state, the limitation [of requiring permission of the presiding judge] placed upon that right is one which must be so exercised as to avoid abuse and unreasonable consequences.” State v. Avcollie, 174 Conn. 100, 110, 384 A.2d 315 (1977). This is so because, without the granting of the requisite permission by the presiding judge, there is no viable appeal unless the court’s denial of permission is “ ‘so unreasonable as to constitute an abuse of discretion.’ ” Id.; see State v. S & R Sanitation Services, Inc., supra. *681There can be no question but that this court has the general supervisory power to protect its jurisdiction to hear appeals and that this power cannot be defeated by the arbitrary action of a trial court. State v. S & R Sanitation Services, Inc., supra, 309-10. As in S & R Sanitation Services, Inc., the jurisdictional predicate for this appeal under § 54-96 exists only if the trial court abused its discretion in denying the state’s motion for permission to appeal. Id., 310.
In setting out its version of the trial court’s “rationale” for denying the state permission to appeal, the majority states that that “rationale” was “that the state was seeking to appeal questions of fact rather than questions of law.” The majority maintains that “[t]he underlying premise of the trial court’s reasoning is unsound” because “[t]he issues raised by the state are not purely factual but also involve questions of law.” The trial court’s memorandum of decision in which it denied the state’s request for permission to appeal acknowledged that the provisions of § 54-96 allowed the state to appeal “upon all questions of law” with permission. The trial court pointed out that in the “extensive memorandum” filed by the state in support of that request, “the State has based the substance of its attack on the factual findings made by this Court.”1 (Emphasis in original.) It then observed that the state contested the following: “(1) This court’s determination, in view of the facts surrounding the preparation of the affidavit and the procedural history, that the date of the alleged bribe is a material element under the facts of this case; (2) The finding by this court that omissions concerning the defendant’s absence and omissions concerning the admissions of intent of certain interested persons were material to the question of bribe receiv*682ing; (3) This court’s finding that when the affidavit is reviewed with the omitted material inserted, that probable cause to believe the defendant received a bribe on or about June 14, 1985 is defeated.”
It should not be overlooked that in its earlier twelve page memorandum granting the dismissal with prejudice the trial court found the “deliberate misrepresentations and reckless omissions on the part of the affiant to be the defects inherent in the initiation of the prosecution for which [Practice Book §] 815 (1) was designed.”2 The trial court, invoking not only Practice Book § 815 (1) but also the inherent supervisory power of the court, found that the institution of the prosecution was defective and proceeded to enter the dismissal with prejudice. I do not read the majority opinion (1) as suggesting that § 815 (1) proscribes the dismissal of a prosecution “prior to trial” even where Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), is involved, or (2) that a trial court lacks, in a proper case, inherent supervisory power to dismiss a prosecution. I do want to be clear and point out that I fully agree that pretrial dismissal of charges is not a matter to be done lightly. By the same token, our practice does provide for such dismissals prior to trial in a proper case. See Practice Book § 815 (1).
The majority concludes that the trial court abused its discretion in denying the state permission to appeal. I do not agree. We have said that “[discretion . . . *683imports something more than leeway in decision-making. See State v. Battle, 170 Conn. 469, 365 A.2d 1100 [1976]; State v. Gilligan, 92 Conn. 526, 103 A. 649 [1918]; McCormick, Evidence (2d Ed.) § 190. ‘ “Discretion means ‘a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice. . . .’ ” ’ ” State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). In S & R Sanitation Services, Inc., we observed that “[i]nherent in the concept of judicial discretion is the idea of choice and a determination between competing considerations. Discretion could generically be said to apply to issues which do not yield a fundamentally empirical yes or no answer. The very core consideration of choice in discretion logically means that neither party is absolutely entitled to have that discretion exercised in its favor.” State v. S & R Sanitation Services, Inc., supra, 311. Because discretion obviously involves some independence of judgment, there can be no hard and fast rule or absolute criterion governing it in all cases, because such a rule would be the end of discretion. See Bringhurst v. Harkins, 32 Del. 324, 331, 122 A. 783 (1923). Discretion is, “in a legal sense, abused when the court exceeds the bounds of reason, all the circumstances before it being considered. An exercise of discretion may be erroneous but still be legal and free from abuse.” Id. In exercising discretion, however, the “right to be wrong without incurring reversal” is not absolute. M. Rosenberg, “Judicial Discretion of the Trial Court, Viewed from Above,” 22 Syracuse L. Rev. 635, 637 (1971).
It is because of this leeway in deciding or this “some independence of judgment” in making decisions that permeates the exercise of discretion which has given rise to the presumption that “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in *684favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did . . . .” Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); Rokus v. Bridgeport, 191 Conn. 62, 72, 463 A.2d 252 (1983); W. Maltbie, Conn. App. Proc. § 59. This “great weight” and “every reasonable presumption ... in favor of its correctness” should be more than bland rhetoric. Moreover, an appellate court determination of whether a trial court has abused its discretion does not, and should not, depend upon whether it would have reached the same conclusion. State v. S & R Sanitation Services, Inc., supra, 311-12, and cases there cited.
In categorically denouncing as “unsound” the underlying premises of the trial court’s reasoning, the majority is careful to say that “[t]he issues raised by the state are not purely factual but also involve questions of law. ” (Emphasis added.) It goes on to say that our case law provides abundant authority that all of the issues that the trial court deemed were precluded from review present questions “that we can and will consider.” This “not purely factual” label, I view as a subliminal concession that perhaps the majority’s broad brush in sweeping away the trial court’s “considered reasons” for denying the right to appeal is not as unquestionable as one might first think. I understand that there is no litmus test that totally distinguishes those matters that are “factual” from those that are “legal” or those that are of “mixed law and fact.” While at opposite ends of the spectrum, it is perhaps quite easy to separate issues of fact and law; the more difficult area is where facts and the application of a legal rule to facts tend to blend. This is where judging facts in terms of their legal consequences and applying law to facts approach a process of fusion where what is a question of law and what is a question of fact is provoca*685tively puzzling. This can be especially true here where fact-sensitive issues tend to predominate.
No one can argue that there are cases when facts may assume infinite variety, yet applicable legal rules are stated in a fashion calling for the application of judgment. The abstract denomination of disputed issues as “factual,” “legal” or “mixed law and fact” is not fairly dispositive of their amenability to appellate review where the type of issue it is may turn upon the application of legal criteria in determining whether a fact is material. Even if it were dispositive on an issue of abuse of discretion, the concept of choice inherent in discretion, the great weight deference, the every reasonable presumption of correctness and the like cannot be eliminated in arriving at a conclusion on the exercise of discretion. This is especially so when the issues are designated as issues of mixed law and fact. Judicial characterization of what constitutes issues of mixed law and fact has produced a source of disagreement even among members of the United States Supreme Court.3 The United States Supreme Court has said: “Nor do we yet know of any other rule or principle that will unerringly distinguish a factual finding from a legal conclusion.” Pullman-Standard v. Swint, 456 U.S. 273, 288, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982).
*686It is because discretion is not governed by an absolute standard that the application upon review of all of the factors referred to above in evaluating its exercise leads me to disagree with the majority’s resolution of the subject matter jurisdiction issue. The trial court in this case gave “considered reasons” for its denial of permission to appeal. In S & R Sanitation Services, Inc., “we weigh[ed] heavily” the fact that the trial court, unlike that in Avcollie, did give “considered reasons.” Each considered reason given here should likewise be weighed heavily. The first such reason given by the trial court and attacked by the state was its “determination, in view of the facts surrounding the preparation of the affidavit . . . that the date of the alleged bribe is a material element under the facts of this case.” The majority states this reason as “whether the date of the alleged bribe is a material element of the crime charged.” I do not read this as stating what the trial court really meant. I agree that time is not an essential element of the crime charged. That is clearly not what the trial court meant; rather, it said that, in view of the facts it found, the date was “a material element under the facts of this case.”
The trial court’s memorandum granting the motion to dismiss clearly uses the word “material” and uses that term in the evidentiary sense that facts found are “material” where offered to prove a matter in issue and it thus relates to the crime charged by having a legitimate influence or bearing on the decision to be made. See 22A C.J.S., Criminal Law § 749. Stated another way, to be “material,” the fact offered, if found or proven, must be significant under the substantive law applicable to the case and be properly at issue. This is no quibble or technicality and even if it might be so argued, the United States Supreme Court has said that “lawyers know, if others do not, that what may seem technical may embody a great tradition of justice *687. . . .’’Kotteakos v. United States, 328 U.S. 750, 761, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946).
The trial court, after reviewing documentary evidence, including depositions and affidavits, encompassing matters that went to the defendant’s claim of alibi (the Alaska trip), made certain findings of fact upon which it determined that the time of the charged offense was “material.” I submit that to do so represents an informed choice by the trial court between options open to it that was based on reasonable factual foundation and supported in law. We have indicated that the date of an offense may become “material” where a defense of alibi is made. See State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945). I perceive no reason for rejecting this legitimate “considered reason” after applying all the legal components referred to above in determining whether an abuse of discretion occurred.4 This reason alone legitimately serves as a basis to uphold the denial of permission to appeal as no abuse of discretion should be found on this ground. See State v. Avcollie, supra, 111 (“no considered reason” given).
The next reason attacked by the state that is upheld by the majority is the trial court’s finding “that omissions concerning the defendant’s absence and omissions concerning the admissions of intent of certain interested persons were material to the question of bribe receiving.” In its memorandum dismissing the information, the trial court found that the affiant had *688“deliberately omitted evidence and testimony from the warrant affidavit that [was] material to the finding of probable cause.” It then made seven specific findings of fact which it concluded were “intentionally” omitted from the affidavit when presented to the issuing judge and which it also said should have been included. Finally, it said that had the “omitted facts” been inserted in the affidavit, “probable cause could not have been found.”
We have said that, although Franks v. Delaware, supra, mentioned only “ ‘false statements . . . included . . . in the warrant affidavit,’ material omissions from such an affidavit also fall within the rule if the defendant proves that the omissions were knowingly and intentionally made, or were made with reckless disregard for the accuracy of the affidavit.” State v. Stepney, 191 Conn. 233, 238, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The trial court made the necessary findings indicated in Stepney.5 The question of whether an affiant intentionally misrepresents facts in an affidavit is a question of fact for the trial court. State v. Chaisson, 123 N.H. 17, 458 A.2d 95 (1983).
The majority, without any discussion of several of these facts that were found material, however, does discuss the defendant’s Alaskan trip. Referring to it, they say that this “omission would be material. . . *689only if the date the defendant received the money from Gahan is a material element6 of the crime ...” and then conducts its analysis from there. Again, I repeat that I agree that the date of the crime charged is not an element of that crime; we are, however, concerned here with omissions of material facts, not a material element of a crime.
“An affidavit may be as inaccurate when it omits facts as when it misstates them. The crucial, inference-drawing powers of the magistrate may be equally hindered in either case, with identical consequences [to the defendant].” People v. Kurland, 28 Cal. 3d 376, 384, 618 P.2d 213, 168 Cal. Rptr. 667 (1980). Under Kurland, if a fact is recklessly omitted or omitted with an intent to mislead, the warrant should be quashed, regardless of whether the omission is material. Id., 390. The findings by the trial court in this case as to the nature of the omissions when the affidavit was presented to the magistrate raise the issue of whether those omissions significantly distorted the magistrate’s probable cause analysis. This was a call within the trial court’s discretion for which it gave a “considered reason,” as well as law upon which to base the choice it made. Where the trial court made findings of fact that it found were *690“deliberately” or “intentionally” omitted, such findings are not at all inconsistent with being treated as questions of fact, not of law, and not of mixed law and fact. See, e.g., DeLuca v. C. W. Blakeslee & Sons, Inc., 174 Conn. 535, 546, 391 A.2d 170 (1978); International Brotherhood v. Commission on Civil Rights, 140 Conn. 537, 543, 102 A.2d 366 (1953).
In distinguishing questions of fact from questions of law, it has been said that “clearly, an issue does not lose its factual character merely because its resolution is dispositive of the ultimate constitutional question. See Dayton Board of Education v. Brinkman, 443 U. S. 526, 534, [99 S. Ct. 2971, 61 L. Ed. 2d 720] (1979).” Miller v. Fenton, 474 U.S. 104, 113, 106 S. Ct. 445, 88 L. Ed. 2d 405 (1985). In this issue on this case, the “ultimate” constitutional question is the fourth amendment question involving the warrant affidavit. It is certainly not unreasonable, again applying all the components that go into deciding whether discretion was or was not abused, for the trial court to consider not only that the crucial, inference-drawing power of the magistrate could have been hindered but that probable cause was defeated.7 If there is no absolute standard in judging the exercise of discretion, I have difficulty understanding how an appellate court, with the choice open here to the trial court, which it exercised on the basis of cognizable legal authority, can conclude that its discretion was abused.
*691The last reason given by the trial court was that “when the affidavit is reviewed with the omitted material inserted, that probable cause to believe that the defendant received a bribe on or about June 14,1985, is defeated.” I believe that this, too, constitutes a “considered reason” for the trial court’s action when the principles guiding the trial court’s discretion are applied; here again, its action was within the range of the choices open to it. In so concluding, I must assume, of course, the inclusion of those facts the trial court deemed material. In my view, it is suggestive of prescient reasoning for the majority to conclude that once the omitted facts deemed material by the trial court are included, that it was an abuse of discretion by the trial court to declare that a detached magistrate would not find probable cause. The trial court’s determination denying the state’s motion to appeal is not terse, it is not untenable; it is spelled out in its memorandum and is a reasonable conclusion reached between the choices that were open to it. This does not constitute being “unreasonable” in the sense it is “irrational,” nor is it “arbitrary” in the sense of being “without adequate determining principle.” See State v. S & R Sanitation Services, Inc., supra, 312. As one court said: “Where there is room for two opinions . . . action taken after due consideration is not arbitrary or capricious even though a reviewing court may believe it to be erroneous.” Abbenhaus v. Yakima, 89 Wash. 2d 855, 858-59, 576 P.2d 888 (1978), quoted in State v. S & R Sanitation Services, Inc., supra.
In sum, I would note the following. The majority does not contend that the trial court lacked the inherent supervisory authority that the trial court claimed it possessed. I must assume, however, that the majority, sub silentio, has found it improperly invoked because of its finding of abuse of discretion. Even if, however, it could be said arguendo that there were some error in the deci*692sion denying the state’s request to appeal, the very concept of discretion which may fairly countenance some imperfection does not then cause the action of the trial court to be the “clear and extreme abuse of discretion” that we found in State v. Avcollie, supra, 111, or a case “where injustice appears to have been done” as we said in Avcollie. Id.; see State v. S & R Sanitation Services, Inc., supra. We are in the area of discretion, not discretion arbitrarily appropriated by the trial court to itself, but discretion granted to every trial judge by the legislature when it enacted General Statutes § 54-96. The nature of the exercise of discretion is such that there is just no one right answer when reviewing its exercise. Otherwise, what is the basis for according discretion to trial judges? “Discretion without a criterion for its exercise is [the] authorization of arbitrariness.” Brown v. Allen, 344 U.S. 443, 496, 73 S. Ct. 397, 97 L. Ed. 469, reh. denied, 395 U.S. 946, 73 S. Ct. 827, 97 L. Ed. 1370 (1953). We have such criteria, which, when appropriately applied, lead to the conclusion that there was no abuse of discretion. Accordingly, I would affirm the trial court’s granting of dismissal with prejudice and conclude that we do not have subject matter jurisdiction.
Therefore, I respectfully dissent.
A fair reading of this extensive memorandum makes apparent the state’s very extensive attack on the factual findings of the trial court.
Practice Book § 815 (1), entitled “[Motion to Dismiss] — Matters to be Raised,” provides: “The following defenses or objections, if capable of determination without a trial of the general issue, shall, if made prior to trial, be raised by a motion to dismiss the indictment or information:
‘ ‘(1) Defects in the institution of the prosecution including any grand jury proceedings.”
It appears, therefore, that a “prosecution” may be amenable to dismissal under this section even where a trial has not been started. See State v. Talton, 209 Conn. 133, 139, 547 A.2d 543 (1988).
For example, in Maggio v. Fulford, 462 U.S. 111, 117, 103 S. Ct. 2261, 76 L. Ed. 2d 794, reh. denied, 463 U.S. 1236, 104 S. Ct. 29, 77 L. Ed. 2d 1451 (1983), the majority concluded that the question of an accused’s competence to stand trial in a state court was a factual question to be resolved by a court whose findings could only be overturned in a federal habeas corpus proceeding if they were not “ ‘fairly supported by the record.’ ” Justice White concurring, Justices Brennan and Marshall concurring in part with Justice White, and Justice Stevens in dissent, asserted that the question was one of mixed law and fact. Id., 118-21. Again, in Patton v. Yount, 467 U.S. 1025, 104 S. Ct. 2885, 81 L. Ed. 2d 847 (1984), decided the following term, there was a similar dispute as to the status of a state trial court’s ruling on whether a prospective juror had a preconceived opinion that disqualified him from serving on the jury.
Because of my view on this ground, it follows that I do not agree with the majority that the trial court abused its discretion “when it ordered the state to prove at trial that the defendant received the bribe proceeds on the dates specified by the defendant and the trial court.” This has to do with the amended information and bill of particulars that the transcript file shows was fully argued after which the trial court ordered the state limited to certain dates.
I agree with the majority that “[n]ot all omissions, even if intentional, will invalidate an affidavit,” for which they cite People v. Stewart, 105 Ill. 2d 22, 43, 473 N.E.2d 840 (1984), cert. denied, 471 U.S. 1131, 105 S. Ct. 2666, 86 L. Ed. 2d 283 (1985). An examination of that case, however, discloses that the statements the defendant claimed in a Franks hearing should have been included in the affidavit “were so fraught with inconsistencies that it was not unreasonable for the police to conclude that the information was unreliable.” People v. Stewart, supra, 45. There is no suggestion that this is so concerning the facts found material by the trial court in this case.
The terms “material element” and “material” have apparently been the source of confusion here. No authority is cited for what constitutes a “material element” of a crime as opposed to an “element.” The point is that the trial court did not say time was a “material element” of the crime involved, but that time may become “material under the facts of this case” where the defense of alibi is involved.
I would add the following portions of the affidavit to those set out in the majority opinion: “On or about June 14, 1985, $3,000 in cash was paid to Thomas Gahan. . . . Mr. Gahan stated that the older Hill give him an envelope . . . that he then turned over ... to the Mayor . . . .” (Emphasis added.) Reasonably viewed, this lends support to the trial court’s ruling that “on or about June 14,1985,” in the bill of particulars, meant that the defendant received the money on “June 14,15,16 or 17,1985,” thus justifying the characterization by the trial court of the omission of the period of the defendant’s Alaskan trip from the affidavit as a “material” omission.
In its citation of authority, the majority notes that “even if the affiant ‘picks and chooses’ the information that he includes in the affidavit, there is no Franks violation if, had the magistrate been so advised, he still would have been justified in issuing the warrant.” It is clear from the seven material facts found by the trial court touching on this issue that none was included in the affidavit. I do not understand the majority to suggest that the issuing magistrate was told anything except that which he learned from examining the documents presented to him and including specifically the affidavit.