(concurring). I agree that the cause must be remanded to the circuit court for determination of the state's pre-trial motion to admit evidence.1 I do not, however, join the majority opinion's interpretation of sec. 974.05(1)(d)2 as granting the State am appeal of right from pre-trial orders excluding evidence that "might normally determine the successful outcome of the prosecution." Majority op. pp. 555, 563, 564. Section 974.05(l)(d)2 expressly grants an appeal of right only when the circuit court suppresses evidence, not when the circuit court excludes evidence.2 *571I conclude that the State has a permissive appeal from orders excluding evidence.
I agree with the majority insofar as it concludes that the legislature intended sec. 974.05(l)(d)2 to limit the State’s appeal of right to orders excluding normally outcome-determinative evidence.
The language of sec. 974.05(1)(d)2 uses the word suppress to limit the State's appeal as a matter of right to those situations where exclusion is outcome-determinative. An order suppressing evidence is a subset of the broader category of orders excluding evidence. Orders excluding evidence may or may not be outcome-determinative.
This interpretation is buttressed by legislative history surrounding enactment of sec. 974.05(l)(d)2. The Judicial Council Committee's notes clearly demonstrate that the legislature intended the phrase suppress evidence in sec. 974.05(1) (d)2 to be read along with the same phrase in sec. 971.31(10)3 and to be read as less *572inclusive than the phrase exclude evidence.4 The courts have interpreted the phrase suppress evidence in sec. 971.31(10) narrowly to limit the defendant's ability to obtain review on appeal. State v. Riekoff, 112 Wis. 2d 119, 332 N.W.2d 744 (1983); State v. Nelson, 108 Wis. 2d 698, 324 N.W.2d 292 (Ct. App. 1982).
Restricting the State's appeal as a matter of right to evidence that the circuit court suppressed is also consistent with rules of appellate practice distinguishing between final and interlocutory orders. In State v. Rabe, 96 Wis. 2d 48, 57, 291 N.W.2d 809 (1980), this court held that sec. 974.05 must be read with chs. 808 and 809 governing appellate practice.
Appeal of right is generally from final judgments and orders. An order suppressing evidence has, according to the legislature, the effect of a final judgment because the evidence is presumed outcome-determinative.
*573A permissive appeal may be taken from an interlocutory order. On the State's petition for leave to appeal from an order excluding evidence the court of appeals should exercise its discretion whether to grant the appeal. It would grant the appeal when the interlocutory order excluding evidence was outcome-determinative to protect the State "from substantial or irreparable injury," sec. 808.03(2)(b), Stats. 1987-88.
The majority opinion disregards its own outcome determinative standard, the clear language and legislative history of sec. 974.05(l)(d)2, as well as the appellate structure established by chs. 808 and 809.
The majority opinion permits the State, and the State alone, to determine whether an order excluding evidence "might normally determine the successful outcome of the prosecution." The State thus has absolute, unreviewable discretion to determine whether it will appeal. If the State appeals an order excluding evidence the court of appeals must hear the appeal. The effect of the majority opinion is to interpret sec. 974.05(1)(d)2 to grant the state an appeal as of right from all pre-trial orders excluding evidence.
The majority opinion in effect equates the statutory phrase suppress evidence with the words exclude evidence. Such an equation comports neither with the language, scope, legislative history, context, subject matter and purpose of sec. 974.05(l)(d)2 nor with the rules for appellate review set forth in chs. 808 and 809.
For the reasons set forth, I concur.
I am authorized to state that Chief Justice Nathan S. Heffernan joins this concurrence.
The state moved in limine to admit evidence. Section 971.31(1) provides: "Any motion which is capable of determination without the trial of a general issue must be made before trial."
I conclude that the court of appeals had jurisdiction to hear the appeal in this case. I would treat the state's notice of appeal as meeting the requirements of a permissive appeal under sec. 808.03(2) and sec. (Rule) 809.50(1), Stats. 1987-88. See also sec. (Rule) 809.82(2), Stats. 1987-88; State ex rel. A.E. v. Green Lake County Circuit Court, 94 Wis. 2d 98, 105e, 288 N.W.2d 114 (1980); State v. Jenich, 94 Wis. 2d 74, 97d, 288 N.W.2d 348 (1980).
Section 974.05(l)(d)2 provides as follows:
*571(1) Within the time period specified by s. 808.04(4) and in the manner provided for civil appeals under chs. 808 and 809, an appeal may be taken by the state from any:
(d) Order or judgment the substantive effect of which results in:
1. Quashing an arrest warrant;
2. Suppressing evidence;
3. Suppressing a confession or admission.
Section 971.31(10), Stats. 1987-88, provides as follows:
(10) An order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of a defendant may be reviewed upon appeal from a judgment of conviction notwithstanding the fact that such judgment was entered upon a plea of guilty.
The Judicial Council Committee's note (1969) to sec. 974.05, Stats., states in part:
[A] major change is sub(l)(d) which permits the state to appeal an order suppressing evidence, a confession or an arrest warrant. Since these matters normally determine the successful outcome of prosecutions, it is believed that the state should be able to take an immediate appeal rather than wasting the time of the court with a hollow trial where the result is preordained by the ruling on the suppression question. For defendant's right in this area, see s. 971.31(10). (Emphasis added.)
Wis. Stat. Ann. sec. 974.05 (West 1985).
The Judicial Council's comment to sec. 971.31(10) states in part:
This subsection . . . should reduce the number of contested trials since in many situations, the motion to suppress evidence is really determinative of the result of the trial.
Wis. Stat. Ann. sec. 971.31 (West 1985).