dissenting:
I dissent. The question before the court is whether the State has the right to appeal a preliminary hearing magistrate’s order dismissing a felony information and discharging the defendant based on the magistrate’s conclusion that there was insufficient probable cause to bind the defendant over for trial. I conclude that no such right to review exists.
Though acknowledging that the State has a right to refile under rule 7(h)(3) of the Utah Rules of Criminal Procedure, the majority accepts the State’s argument that the due process restrictions outlined in State v. Brickey, 714 P.2d 644 (Utah 1986) (state may refile before original magistrate based on new or additional evidence or other good cause), effectively preclude that avenue of relief. Thus, the majority concludes that despite State v. Humphrey, 823 P.2d 464 (Utah 1991) (“[Ujnder the current jurisdictional statutes [magistrates’] orders are not immediately appealable.”), a magistrate’s order dismissing an information and discharging the defendant constitutes a final, appeal-able order under section 77 — 18a—1 (2)(a) of the Utah Code. I disagree. I would hold that the relevant Utah statutes, rules, and case law, especially Humphrey, establish that a magistrate’s dismissal does not amount to a final judgment of dismissal for section 77-18a-l(2)(a) purposes.
*56In granting the State the right to appeal a magistrate’s order of dismissal, the majority not only misconstrues Humphrey, but imper-missibly creates appellate jurisdiction where none lawfully exists. As this court has previously held, appellate jurisdiction exists only by virtue of a constitutional grant or by statute. State v. Taylor, 664 P.2d 439, 441 (Utah 1983); see Town of Ophir v. Jorgensen, 63 Utah 288, 225 P. 342, 342 (1924); Castle Dale City v. Woolley, 61 Utah 291, 212 P. 1111, 1112 (1923); McCashland v. Keogh, 32 Utah 11, 88 P. 680, 682 (1907) (on rehearing). Neither Utah’s Constitution nor its statutes grant any court of this state appellate jurisdiction over the decisions of preliminary hearing magistrates.1 See, e.g., Utah Const, art. VIII, §§ 3, 5; Utah Code Ann. § 77-18a-l; Utah R.Crim.P. 7(h), 26.
Furthermore, in Humphrey, we held that “a judicial officer functioning as a magistrate is not functioning as a circuit court or other court of record. Because magistrates are not courts of record when they conduct preliminary hearings and issue [bind-over] orders, under the current jurisdictional statutes their orders are not immediately appeal-able.” Humphrey, 823 P.2d at 468. Despite Humphrey’s clear and unconditioned holding, the majority attempts to limit the decision, arguing that this court ruled only that the State has no right to appellate review of a magistrate’s decision to bind over. Humphrey, claims the majority, has no application to situations in which a magistrate decides not to bind over.
The majority supports its recharacterization of Humphrey by creating an illusory distinction between a preliminary hearing magistrate who grants bind over and one who denies it, claiming that in the first instance, the magistrate is acting as magistrate, but in the second, is acting as judge. Apparently, in the majority’s view, a judge acts as a magistrate throughout the preliminary hearing and when she decides to bind the defendant over for trial. However, if the judge is inclined to rule that the defendant should not be bound over, she takes off her magistrate hat and replaces it with her judge hat. Following this sleight of hand, if the State “definitively concedes”2 that it is unable to refile, the magistrate’s (now judge’s) decision becomes final and the State may appeal.
I find the majority’s rationale disingenuous. If the majority wishes to overrule Humphrey, it should engage in a proper analysis and give legitimate reasons for doing so. See State v. Menzies, — P.2d -, -, 235 Utah Adv.Rep. 23, 25, 1994 WL 110861 (March 29, 1994). However, arguing, as the majority does, that Humphrey did not *57hold what it plainly held ignores the role of stare decisis in our judicial system.
Although I conclude that the State may not, under our current jurisdictional scheme, appeal a preliminary hearing magistrate’s order of dismissal, I am not unsympathetic to the State’s procedural dilemma. The development of Utah case and statutory law in this area presents a unique problem. While Brickey limited the State’s ability to unconditionally refile under rule 7(h)(3), Humphrey clarified that preliminary hearing magistrates do not issue final, appealable orders.
In some cases, therefore, Brickey and Humphrey may combine to effectively preclude review of a preliminary hearing magistrate’s refusal to bind a defendant over for trial. Significantly, a magistrate’s decision to bind over is not similarly insulated. When a magistrate binds a defendant over for trial, the defendant may file a motion to quash the information in the district court. Humphrey, 823 P.2d at 466. If that motion is denied, the defendant may then petition for an interlocutory appeal. Id. at 468 n. 9. The State, however, has no comparable procedural mechanism to seek reexamination of a magistrate’s refusal to bind over.
This procedural disparity is somewhat troublesome. A magistrate performs the same quasi-judicial function whether or not she finds sufficient probable cause to bind a defendant over for trial. Conditioning judicial review on the outcome of a magistrate’s bind-over determination makes little sense.
While I would reaffirm both Brickey and Humphrey, I recognize that these decisions place the State at a procedural disadvantage in a limited number of cases. Indeed, a survey of other states’ case law indicates that this disadvantage may be unique to Utah. See, e.g., People v. Slaughter, 35 Cal.3d 629, 200 Cal.Rptr. 448, 449-50, 677 P.2d 854, 856-57 (1984) (following magistrate’s dismissal, state may file motion to compel reinstatement of complaint and custodial status of defendant); State v. Ruiz, 106 Idaho 336, 678 P.2d 1109, 1110-11 (1984) (state cannot appeal magistrate’s refusal to bind over b.ut may unconditionally refile complaint for good cause); People v. Love, 39 Ill.2d 436, 235 N.E.2d 819, 821-22 (1968) (state may appeal any judgment which substantively results in dismissal of indictment, information, or complaint); State v. Zimmerman, 233 Kan. 151, 660 P.2d 960, 963 (1983) (state may appeal magistrate’s order dismissing complaint, information, or indictment or refile complaint based on new or additional evidence); People v. Nevitt, 76 Mich.App. 402, 256 N.W.2d 612, 613 (1977) (per curiam) (state may appeal magistrate’s dismissal or unconditionally refile complaint); State v. Maki, 291 Minn. 427, 192 N.W.2d 811, 811-12 (1971) (state may not appeal magistrate’s dismissal but may unconditionally refile complaint or seek grand jury indictment); Walker v. Schneider, 477 N.W.2d 167, 174-75 (N.D.1991) (state may seek district court review of magistrate’s dismissal or refile complaint based on new or additional evidence or other good cause); State ex rel. Fallis v. Caldwell, 498 P.2d 426, 428-29 (Okla.Crim.App.1972) (adopting court rule permitting state to appeal from magistrate’s dismissal); Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8, 9 (1978) (under most circumstances, state may not appeal magistrate’s dismissal but may unconditionally refile charges); State v. Fahey, 275 N.W.2d 870, 871 (S.D.1979) (per curiam) (state may unconditionally refile complaint); State v. Brown, 96 Wis.2d 258, 291 N.W.2d 538, 542-43 (1980) (state may appeal errors of law committed by magistrate during preliminary hearing; alternatively, state must produce new or unused evidence to refile complaint). Thus, it appears that virtually every other state system that has addressed this problem has devised a means to permit some form of review or reconsideration of a magistrate’s refusal to bind a defendant over for trial. While I cannot accept the majority’s freestanding assertion of appellate jurisdiction where none exists, I do believe that the matter could be resolved by changes in our Rules of Criminal Procedure.
I think, for example, that there is merit in the approach used in California. Section 871.5 of the California Penal Code authorizes the state, following a magistrate’s dismissal, to file a motion in superior court to compel the magistrate to reinstate the complaint and *58custodial status of the defendant.3 Cal.Penal Code § 871.5(a) (West Supp.1994); see Slaughter, 200 Cal.Rptr. at 449-50, 677 P.2d at 856-57; People v. Dethloff, 9 Cal.App.4th 620, 11 Cal.Rptr.2d 814, 816 (1992); People v. Mimms, 204 Cal.App.3d 471, 251 Cal.Rptr. 672, 673 & n. 3 (1988). The sole ground for this motion is that as a matter of law, the magistrate erroneously dismissed all or part of the complaint. Cal.Penal Code § 871.5(b) (West Supp.1994).4
This brief description of California’s procedural scheme oversimplifies a very complex statute. However, I use the procedural approach in the California statute as a resource, not necessarily as a model, for a potential solution to Utah’s problem.5 In any event, I would refer this matter to the Supreme Court Advisory Committee on the Rules of Criminal Procedure for in-depth study. In the meantime, however, I cannot endorse the majority’s distortion of the constitution, our statutory law, and judicial precedent.
. The majority’s reliance on section 77-18a-l(2)(a) of the Utah Code as establishing appellate jurisdiction is mistaken. In 1980, when the legislature granted magistrates the power to dismiss informations and authorized the State to appeal from final judgments of dismissal, this court had yet to decide State v. Brickey, 714 P.2d 644 (Utah 1986). Thus, at the time the legislature passed section 77-18a-l(2)(a), the State was free to unconditionally refile informations. Whatever procedural obstacles this court created with Brickey, it cannot be argued that section 78-18a-l(2)(a) contemplates the State’s right to appeal a magistrate's order of dismissal.
In addition, the very existence of rule 7(h)(3) of the Utah Rules of Criminal Procedure refutes the notion that a magistrate’s refusal to bind a defendant over for trial constitutes a final judgment of dismissal. A magistrate’s order of dismissal is not final because the State has the option to refile the information. While Brickey places a high burden on the State, it is not insurmountable.
. In footnote 1 of the majority opinion, the majority writes that the State’s decision to appeal "rather than ... refiling the charges and putting on new evidence must be viewed as a definitive concession by the State that it is unable to refile the charges, given State v. Brickey, 714 P.2d 644, 646-48 (Utah 1986).” It appears that the majority’s entire rationale hinges on this extraordinary statement. Because the State has "definitively conceded” that it cannot refile, the majority concludes that the preliminary hearing magistrate has issued a final, appealable order. This reallocation of authority between the State and the judiciary is an unwholesome addition to our system of criminal law. The State "definitively concedes” that it cannot do some act, and the courts accommodate by inventing a procedural mechanism allowing the State to proceed. The majority's resolution thus permits the State to decide, without any oversight, whether it has the ability to refile under Brickey. The State, therefore, is free to determine when and if it is entitled to appellate review. Our appellate system does not contemplate leaving such unfettered discretion with a party to criminal proceedings.
. California has a slightly different commitment or bind-over procedure than Utah's. In California, the prosecutor first files a complaint with a preliminary hearing magistrate. Cal.Penal Code § 738 (West 1985). If the magistrate finds probable cause to believe that a public offense was committed and that the defendant is guilty of it, the magistrate issues an order of commitment (essentially a bind-over order) and transfers the action to the superior court. Id. § 872 (West Supp.1994). At that point, the prosecutor files an information in the superior court. Id. § 739 (West 1985).
. California law also affords the state two other procedures to gain review of a magistrate's dismissal. The state may refile the charges and begin a second prosecution, Cal.Penal Code § 999 (West 1985); see People v. Superior Court (Martinez), 19 Cal.App.4th 738, 23 Cal.Rptr.2d 733, 740 (1993), or if the magistrate has dismissed some but not all of the state's charges, the state may file an information in the superior court "charging] the defendant with either the offense or offenses named in the order of commitment or any offense or offenses shown by the evidence taken before the magistrate to have been committed.” Cal.Penal Code § 739 (West 1985); Superior Court (Martinez), 23 Cal.Rptr.2d at 740.
.A constitutional amendment or statute granting Utah’s appellate courts jurisdiction over preliminary hearing magistrates' decisions would also remedy the situation. Of course, as a policy matter, there are valid reasons why the State, having made its best case at the preliminary hearing and having no new or additional evidence or other good cause to justify refiling, should not be permitted to continue the prosecution. “In Utah, the preliminary hearing is used to determine whether there is sufficient cause to believe a crime has been committed to warrant further proceedings. The preliminary hearing thus acts as a screening device to 'ferret out ... groundless and improvident prosecutions.’" Brickey, 714 P.2d at 646 (quoting State v. Anderson, 612 P.2d 778, 783-84 (Utah 1980) (citations omitted)). By refusing to bind a defendant over for trial, a preliminary hearing magistrate essentially determines that the prosecution is "groundless and improvident.” Brickey, therefore, may be understood as designed to bring to a close those prosecutions in which the State cannot successfully refile. Allowing the State to continue the prosecution, whether by appeal or by some other method of review, arguably undermines this purpose.