(dissenting in part). I agree that the defendant’s double jeopardy claim is without merit. In fact, it is frivolous.
I disagree with the reasoning employed to reach the merits of this case. There is nothing final about the order of the circuit court; it denies a motion to dismiss. Whatever the federal rule may be, our statute, sec. 808.03 (1), Stats., defines a final order subject to appeal as a matter of right. It is one which disposes of the entire matter in litigation. This order does not. It was subject to discretionary appeal under sec. 808.03(2), and we have held that a refusal of the court of appeals to allow a discretionary appeal is not subject to review in this *96court. State v. Whitty, 86 Wis.2d 880, 272 N.W.2d 842 (1978).
The opinion of the court does not overrule State v. Whitty, supra, because only two of the five justices joining in it agree that the order was subject to a discretionary appeal. Holding that denial of a discretionary appeal is reviewable by this court would have very serious consequences. It would be an open invitation to engage in delaying tactics, by seeking a discretionary appeal from a nonfinal order, and then seeking review of the order denying the discretionary appeal. It would result in a flood of petitions to review in this court.
The three justices who would hold the order to be final point out that the issue is collateral to and independent of the principal issue at trial. I would add that it goes to the jurisdiction of the trial court to proceed with a second trial. Collateral, jurisdictional issues may be raised by habeas corpus. Ordinarily the defense of former jeopardy does not entitle a prisoner to habeas corpus relief because the issue may be raised at trial. However, as stated in 89 C.J.S. Habeas Corpus, sec. 23 (1944):
“Habeas corpus is a proper remedy where it is claimed that the prisoner has been placed in jeopardy for the identical offense, because, if such assertion is true, it is not merely a matter of defense which, if not properly sustained in the trial court, would furnish ground for appeal, but it goes to the continuance of jurisdiction of the trial court for any purpose.”
There is no need to establish procedures for expedited appeal in cases such as this, because a summary procedure for hearing a habeas corpus application is already in existence in'ch. 292, Stats. The application may be heard by the court of appeals or by a single judge. Sec. 292.03. The writ shall be granted without delay. Sec. 292.06. The court or judge shall, after issue has been joined, “proceed in a summary way to examine into the *97facts contained in the return and to hear the allegations and proofs of the parties . . . Sec. 292.19. This is the procedure the legislature has provided and the procedure which should be followed.
I also disagree with the citations set forth in the following footnotes.
Footnote 6. The second paragraph of this footnote finds an order granting a motion to withdraw a guilty plea terminates a particular proceeding or action (the guilt phase, the proceeding, that is the trial) and thus is a final order. The statute interpreted in the cited case is not the statute interpreted in this case. The statute in this case says nothing about “terminating a particular proceeding or action.”
The sentence (which is followed by footnote 7) recognizes that this kind of an appeal is a dilatory tactic and directs the court of appeals to expedite the appeal. How can expediting an appeal sufficiently correct the recognized abuse? No adequate review of the claim can be made without a transcript. The time limits on transcripts are already very short from the point of view of the over-burdened trial courts. This cavalier direction to expedite the appeal in no way provides an effective preventative to the recognized abuse of a dilatory appeal; I would characterize the argument made on behalf of the 3 justices as a strained interpretation of the appeals statute. I would characterize the argument made on behalf of the other 2 justices as a judicial amendment of the statute, without case law or judicial authority supporting such action.
Footnote 9. The argument that the supreme court under its superintending power has the right to fashion a new appellate remedy is contrary to every decision of the supreme court holding that the right of appeal is statutory. Moreover, I question the need for a remedy to deal with a discretionary appeal as there already exists *97aan ultimate right of appeal. There is no need to fashion a remedy when one exists.
Footnote 10 — what other states have done in deciding “whether to grant immediate appellate review” is irrelevant if appellate review is statutory, as our supreme court has repeatedly said it was.
For the foregoing reasons I would dismiss the petition for review, but I agree with the court that the issue raised by the defendant is without merit.
I am authorized to state that Mr. Justice CONNOR T. Hansen joins in this dissent.
The following memorandum was filed May 19, 1980.
PER CURIAM(on motion for reconsideration).
Upon reconsideration, we modify that portion of our initial opinion which held that a pretrial order denying a motion to dismiss, because of a claim that to go to trial would violate double jeopardy, was a final order appeal-able by right under sec. 808.03(1), Stats. We conclude that the order does not satisfy the statutory test for finality under sec. 808.03(1) but is, instead, a nonfinal order appealable only by permission of the court of appeals under sec. 808.03 (2).
The decision of whether to grant permissive appeals under sec. 808.03, Stats., rests within the sound discretion of the court of appeals.1 Nevertheless, we urge the court of appeals to be careful in exercising that discretion when the order sought to be appealed is one which denies a *97bmotion to dismiss for double jeopardy. Given the serious constitutional questions raised by claims of double jeopardy, review of such orders will often be necessary to protect the accused from “substantial or irreparable injury” — one of the three criteria for testing the appropriateness of review under sec. 808.03 (2).
As we pointed out in our initial opinion, determining the appealability of orders poses a question of statutory interpretation. Section 808.03, Stats., effective August 1, 1978, sets forth the following rules for appeals to the court of appeals:
“808.03 Appeals to the court of appeals. (1) APPEALS as of eight. A final judgment or a final order of a circuit court or county court may be appealed as a matter of right to the court of appeals unless otherwise expressly provided by law. A final judgment or final order is a judgment or order entered in accordance with s. 806.06(1) (b) or 807.11(2) which disposes of the entire matter in litigation as to one or more of the parties, whether rendered in an action or special proceeding.
“(2) Appeals by permission. A judgment or order not appealable as a matter of right under sub. (1) may be appealed to the court of appeals in advance of a final judgment or order upon leave granted by the court if it determines that an appeal will:
“(a) Materially advance the termination of the litigation or clarify further proceedings in the litigation;
“(b) Protect the petitioner from substantial or irreparable injury; or
“(c) Clarify an issue of general importance in the administration of justice.”
The new appeals statute replaced the troublesome list of intermediate orders appealable by right under the old provision, sec. 817.33, Stats., with an easily applied dichotomy: “Orders which ‘[dispose] of the entire matter in litigation’ are appealable by right; all others are appealable only by permission.” State v. Rabe, 96 Wis.2d *97c48, 56, 291 N.W.2d 809 (1980). Since the subject order allows the litigation to continue and thus does not dispose of the entire matter in litigation, it does not satisfy the test for finality under sec. 808.03(1). In their discussion' of the new appeals procedure in Wisconsin Appellate Practice, sec. 402 (1978), Martineau and Malmgren state at two different points that “[a]n order denying a motion to dismiss is intermediate and not appealable” by right (p. 20) ; that such an order “is not a final order because it does not dispose of the entire matter in litigation” (p. 22).
The statutory test for appeals by right under sec. 808.-03(1), Stats., is considerably more stringent than the previous practice, which, in many respects, resembled the federal appeals practice discussed in our initial opinion. Cf., 28 U.S.C. 1291; 9 Moore, Federal Practice, paras. 110.08[1], 110.10 (2d ed. 1980). Since, sec. 808.03(2) now provides a flexible procedure for seeking review of all nonfinal judgments and orders by permissive appeal, there is no need to adopt the three-pronged “collateral order” rule which enables federal appellate courts to review various intermediate orders. Martineau and Malm-gren, supra, sec. 403 at 23-4. Accordingly, any implication contained in our initial opinion that the finality of orders should be tested under the three federal criteria is expressly withdrawn.
A defendant wishing to seek permissive review under sec. 808.03(2), Stats., from an order denying a motion to dismiss on double jeopardy grounds should file a petition for leave to appeal as provided in sec. 809.50. This procedure is advantageous and expeditious, because it requires the appeal to be initiated within ten days from the entry of the order.
*97dThis case came to us on a petition to review the court of appeals’ decision that the order was not a final order appealable by right under sec. 808.03 (1), Stats.2 A party aggrieved by a decision of the court of appeals that an order is nonfinal may seek review in this court upon a petition to appeal. The right to seek review does not exist, however, where the court of appeals, in the exercise of its discretion, declines to entertain a permissive appeal from an order the parties concede to be nonfinal. State v. Whitty, 86 Wis.2d 380, 388, 272 N.W.2d 842 (1978); see also, our initial decision in this case, 94 Wis. 2d at 77.
This court will not consider the merits of an appeal if it first determines that the court of appeals was correct in its decision that the order was not a final one appeal-able by right. Our determination on the merits in this case was premised on the erroneous conclusion that the order was final. Because we have resolved the double jeopardy argument against the defendant, we decline, on remand, to allow him the futile opportunity to seek leave to appeal under sec. 808.03 (2), Stats.
By the Court. — Decision of the court of appeals is affirmed; order of the circuit court is affirmed and the cause remanded for trial.
Accordingly, we decline to utilize our “superintending and administrative authority over all courts,” Art. VII, sec. 3(1), Wis. Const., to direct the court of appeals to hear all permissive appeals from orders denying motions to dismiss based on double jeopardy. The decision of whether to hear such appeals is, as the statute provides, within the court of appeals’ discretion.
The defendant initiated the appeal process by filing a notice to appeal by right from the circuit court’s order denying his motion to dismiss.