(concurring on motion for reconsideration). If the court is unwilling at this time to direct the court of appeals to hear these appeals, then the majority should, I think, direct its attention to Jenieh’s argument that he, and others similarly situated, have a federal or state constitutional right to have the merits of a double jeopardy claim adjudicated *97ebefore a second trial. The majority, without explanation, chooses not to decide this question.
I agree with the majority that a pretrial order denying a motion to dismiss the criminal complaint on the ground of double jeopardy is a non-final order appealable to the court of appeals upon leave granted by the court of appeals pursuant to sec. 808.03(2), Stats. However, I believe, as I said in the original opinion, that this court should, pursuant to its superintending and administrative authority, direct the court of appeals to hear all appeals taken from orders denying motions to dismiss based on double jeopardy because every order denying a motion to dismiss based on double jeopardy falls within the criteria of sec. 808.08(2), Stats., for granting leave to appeal. I would not object to the court adopting the phraseology the state suggests in its motion for reconsideration, namely that the court hold that as a matter of law orders denying motions to dismiss on double jeopardy grounds must always be reviewed to protect the accused from substantial or irreparable injury. Requiring review by the court of appeals is consistent with the United States Supreme Court’s reasoning in Abney v. United States, 431 U.S. 651, 662, (1977), that “if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.”
The majority urges the court of appeals to be careful in exercising its discretion to take an appeal when a motion to dismiss for double jeopardy is involved. The majority, however, does not establish any guidelines or criteria to aid the court of appeals in exercising care and discretion in this category of appeals.
An obvious guideline is that the more meritorious the defendant’s claim, i.e., the better his chance of succeeding on his claim of double jeopardy, the greater the *97frisk of substantial and irreparable harm if the defendant does not obtain immediate appellate review of the order denying the motion to dismiss the second prosecution.
The state in its original brief recognized that the guideline for granting leave to appeal is the meritoriousness of the defendant’s claim and urged that the court of appeals “screen” petitions to appeal involving double jeopardy claims and that the court of appeals deny leave to appeal to those petitions which are frivolous and insubstantial. Thus the state apparently would have two categories of petitions for leave to appeal: those which present a legitimate question regarding whether the defendant’s right to protection from double jeopardy has been violated and those which present a frivolous claim. The state probably would have the court of appeals grant leave to appeal to those petitions in the first category because, ipso facto, the defendant will be irreparably harmed if the merits of the double jeopardy claim are not determined before trial. Because a frivolous claim of double jeopardy would not stop a second prosecution, the state reasons that the defendant will not be irreparably harmed if the merits of a frivolous double jeopardy claim are not heard before trial and the court of appeals denies leave to appeal.
In the instant case, the court of appeals apparently followed a procedure similar to the one suggested by the state of categorizing the merits of the double jeopardy claim in order to determine whether to grant leave to appeal. The court of appeals initially reviewed the petition in the instant case to characterize the substantive merits of the double jeopardy claim. The court of appeals characterized the claim as of “doubtful merit” and refused to grant defendant Jenich leave to appeal. Thus it appears that the court of appeals is placing petitions for leave to appeal into three categories: those *97gwhich raise a legitimate question and appear to have merit; those which raise a legitimate question and appear to have doubtful merit (but cannot be characterized as frivolous) ; and those which are frivolous. Thus the court of appeals apparently would deny leave to appeal to petitions which are not frivolous but which have doubtful merit.
I think that if the court of appeals is going to review preliminarily the petition for leave to appeal to characterize the merits of the double jeopardy claim when the court of appeals does not have the benefit of a record or an agreed statement in lieu of the record (Rule 809.15, Stats.), or full briefs on the issue, we have a more cumbersome and error-prone procedure than if the court of appeals were to decide the merits of each double jeopardy claim in an expedited manner.
I conclude that in order to grant effective protection to the defendant’s rights under the double jeopardy provisions of the state and federal constitutions and in order to provide effective administration of the criminal justice system in the state, this court should, as did the United States Supreme Court in Abney„ require immediate appellate review in the court of appeals of a pretrial order rejecting a claim of double jeopardy. If the court of appeals can determine from the petitioner’s and state’s papers on the petition for leave to appeal that the claim is frivolous, the court of appeals should grant leave to appeal and decide the appeal on the merits immediately by a summary affirmance of the trial court’s order. Rule 809.21, Stats., allows for summary disposition of an appeal. I would further require the court of appeals to establish procedures pursuant to Rule 809.20, Stats., for expediting appeals involving double jeopardy claims.
Perhaps the majority and I are really missing the point in limiting our discussion to whether the defend*97hant’s permissive appeal should or should not be granted as a matter of course in all instances. Perhaps we should be addressing the issue of whether the trial court may proceed with trial while an appeal is pending. Sec. 808.-07, Stats., provides that an appeal does not stay the enforcement of the order appealed from. See Rules 809.12 and 809.52, Stats.; Martineau & Malmgren, Wisconsin Appellate Practice ch. 8 (1978).
The federal courts of appeal must, as we noted in discussing Abney, review all appeals based on the claim of double jeopardy. The fifth circuit in United States v. Dunbar, 611 F2d 985 (5th Cir. 1980) was concerned with the district court’s power to continue with a trial when a notice of appeal based on double jeopardy was filed with the fifth circuit. In order to avoid delay in trials because of frivolous, dilatory appeals, the fifth circuit court of appeals, under its supervisory power, requires the federal district courts to make written findings stating whether defendant’s motion to dismiss based on double jeopardy is frivolous or non-frivolous. The rule in the fifth circuit court of appeals is that if the district court finds the defendant’s claim to be frivolous, the defendant’s filing of the notice of appeal does not divest the district court of jurisdiction over the case; if the district court finds the defendant’s claim to be non-frivolous, the trial cannot proceed until a determination is made of the merits of the appeal. United States v. Dunbar, supra, 611 F.2d at 988. The fifth circuit court of appeals views the finding by the federal trial court that the appeal is or is not frivolous as helpful in enabling the appellate court to review a defendant’s appeal expeditiously. United States v. Dunbar, 611 F.2d at 989. The fifth circuit explicitly retained the power to stay proceedings pending appeal or to issue a writ of mandamus or prohibition to protect the defendant’s double jeopardy right *98not to be tried pending appeal from the denial of a non-frivolous motion.
Our court has not considered the problem of staying trial court proceedings pending appeal. The parties do not address this issue either. The implicit assumption in the majority opinion is that while a petition for leave to appeal is pending and when leave to appeal is granted the trial court proceedings will be stayed because the appeal loses its value if the trial proceeds.