(dissenting in part; concurring in part). I agree that the order of the circuit court waiving juvenile court jurisdiction over the petitioner was appealable. I disagree with the reasoning employed to reach that conclusion. I dissent from that part of the mandate remanding the matter to the court of appeals.
The legislature says that waiver order was a final order appealable under sec. 808.03(1), Stats. As I stated in my dissent in State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980), the criteria for a final order is set forth in the statutes. The majority has now amended the statute by substituting 3 criteria which do not exist therein: the order determines the claim (rather than the entire matter in litigation); I would hold the claim to be separable and distinct therefrom, collateral to and independent of the principal issue at trial (rather than the complete claim of one or more parties); and the claim is too important to be denied judicial review (one of the criteria for discretionary review of a non-final order). This is not a statutory construction. This is judicial legislation. A right of appeal to the court of appeals has in the past been granted only by legislative enactment, and not by this court. Art. VII, sec. 5(3) of the Wisconsin Constitution specifically states that the court of appeals has such appellate jurisdiction “as the legislature may provide by law.” The majority has seen fit to ignore the constitution and has added new provisions to sec. 808.03(1) of the statutes not enacted by the legislature.
*105I agree and would hold that the order in question is appealable under sec. 48.47, Stats., for the reasons stated by Justice Robert W. Hansen in his concurring opinion In Interest of D.H., 76 Wis.2d 286, 251 N.W.2d 196 (1977). The court of appeals, relying on previous case law, recited by this court, so held in denying the writ of prohibition presented, and the court of appeals was right.
The majority denies the petition for a writ of prohibition presented herein, but remands the matter to the court of appeals for further proceedings. The majority offers no explanation whatsoever as to how this court acquired jurisdiction over the court of appeals in this proceeding. A petition was presented to the court of appeals and denied. No attempt was ever made to seek review in this court of the decision of the court of appeals. Rather, the petitioner presented a new petition for a writ of prohibition to this court. The proceeding which the petitioner sought to prohibit was his trial of the criminal case in the circuit court. There was nothing in the court of appeals to prohibit. Yet, without ever having acquired jurisdiction over the decision of the court of appeals or the proceeding therein, the majority reverses on the ground that the substance controls over form. The form so easily dismissed as unimportant by the majority is a rule of this court requiring that a notice of appeal be filed with the clerk of the trial court in order that the court of appeals might gain jurisdiction over the appeal, sec. 809.10, Stats.
In my reading of the law, it is my belief that a writ of prohibition was not available where there existed an adequate remedy by appeal. State ex rel. Cullen v. Ceci, 45 Wis.2d 432, 173 N.W.2d 175 (1970). The order of the circuit court waiving juvenile court jurisdiction over the petitioner was entered on September 12, 1979. The order of the court of appeals denying the petitioner’s *105aapplication for a writ of prohibition was dated September 25, 1979. The order of the court of appeals clearly-stated that an appeal could be taken under sec. 48.47, Stats. Petitioner had ample opportunity to appeal the waiver order even after the order of the court of appeals denying- his petition for a writ of prohibition, but chose to petition this court for prohibition instead. Why ? Even if this court had acquired jurisdiction over the order of the court of appeals, which it has not, I know of no reason to allow the petitioner a second chance to appeal after he had decided and refused to take advantage of the first.
I would deny the petition and not remand this matter to the court of appeals. I am authorized to state that Mr. Justice Connor T. Hansen joins in this opinion.
The following memorandum was filed May 19, 1980.
PER CURIAM(on motion for reconsideration). Upon reconsideration, we conclude that juvenile waiver orders are not appealable by right because they are neither “final orders” under sec. 808.08(1), Stats., nor “adjudications” under sec. 48.47. The appropriate route for review by a party aggrieved by a juvenile waiver order is to seek leave to appeal under sec. 808.08(2) in the manner and within the ten-day deadline specified in sec. 809.50.
Because, upon reconsideration of State v. Jenich, 94 Wis.2d 74, 288 N.W.2d 114 (1980), we rejected the three criteria used by federal courts to test finality, our initial opinion in this case lacks precedential support. Viewed under the appropriate test set forth in sec. 808.03 (1), Stats., a juvenile waiver order is not a final order because it does not “[dispose] of the entire matter in *105blitigation as to one or more of the parties.” The waiver order merely transfers the matter to another court.
Similarly, a juvenile waiver order is not appealable by right under sec. 48.47, Stats.,1 because it is not an “adjudication” on the merits of the case. As we noted in In Interest of D.H., 76 Wis.2d 286, 251 N.W.2d 196 (1977), a juvenile waiver order does not fit comfortably within the concept of adjudication for purposes of appeal under sec. 48.47.
In D.H., supra, a case which arose before the implementation of the court of appeals and the new appellate procedure rules, we fashioned an appellate remedy to supplant the inadequate and time-consuming remedy available to contest juvenile waiver orders under sec. 48.47, Stats. 76 Wis.2d at 294-95. The special procedure established in D.H. called for prompt review in the circuit court, followed by a discretionary writ of prohibition in this court. The court noted parenthetically that the special procedure should be followed “until the legislature provides otherwise.” 76 Wis.2d at 294.
The legislature did in fact act subsequently in three related areas, the combined effect of which rendered the D.H. procedure unnecessary. The legislature (1) repealed and recreated the statutory procedure for waiving juveniles to adult court;2 (2) reorganized the state *105ccourt system; and (3) enacted, in conjunction with this court, the new rules of appellate procedure. In contrast to the old appellate practice rules criticized in D.H., the new rules provide an efficient and expeditious procedure for seeking permissive review of juvenile waiver orders. Under Rule 809.50, permissive appeals must be initiated within ten days. Moreover, where time is of the essence, the appellant can move for expeditious handling of the appeal pursuant to Rule 809.20. The appellant may also move for a stay of the proceedings in the adult court pursuant to sec. 808.07 and Rule 809.12.
A further advantage of proceeding under sec. 808.03 (2), Stats., as opposed to the writ of prohibition procedure established in D.H., is that an adequate record would come before the court of appeals if leave to appeal is granted. See, Rules 809.50(3) and 809.15. As the present case evidences, a petition for a writ of prohibition ordinarily provides no mechanism for bringing the full juvenile court record before the appellate court.3 In State ex rel. TDD, supra, 91 Wis.2d at 235, the minor’s initial writ of prohibition was denied on the ground that the sparse record accompanying the writ provided an insufficient basis for review.
In D.H. we emphasized the critical importance of an order waiving juvenile jurisdiction and the resultant need for prompt appellate review. 76 Wis.2d at 292-94. In the court’s words: “The transfer of the juvenile to the adult criminal process is a grave step, and there should be a way for the juvenile to obtain immediate *105dreview of the decision.” 76 Wis.2d at 292. Our adherence to this view remains unchanged.4
Given the significance of a waiver of juvenile jurisdiction orders, we urge that the court of appeals, in the exercise of its discretion, give careful consideration to the merits presented by appeals from such orders. Review will often be necessary to protect the minor from “substantial or irreparable injury” — one of the three criteria for granting permissive appeals under sec. 808.03(2), Stats. Juvenile waiver orders, like orders denying motions to dismiss based on double jeopardy (see, Jenich, supra), represent a unique type of intermediate order which require prompt appellate review where necessary to prevent “substantial or irreparable injury.”
The editors of the new manual on Wisconsin juvenile court practice advocate handling appeals from juvenile waiver orders in the manner set forth above. The editors state that:
“Although the provision for appeal in the Children’s Code, s. 48.47, provides for an appeal only of an ‘adjudication of the juvenile court,’ the Wisconsin Supreme Court has held that an order of waiver under Wis. Stat. s. 48.18(6) is an appealable order. In re D.H., 76 Wis. 2d 286, 251 N.W.2d 196 (1977). However, the language of In re D.H. is probably modified by Wis. Stat. s. 808.03 (1). Under that section, a waiver order is not appeal-able as a matter of right because it is not a final order. However, it is appealable as a discretionary appeal under ss. 808.03(2) and 809.50 and there should be no difficulty demonstrating under ss. 808.03(3) and 809.50(1) (c) *105ethat an immediate review of the order is necessary to protect the juvenile from substantial and irreparable injury.” Wisconsin Juvenile Court Practice, sec. 9.23, p. 151 (Youth Policy & Law Center, 1978).
The numerous papers filed on behalf of A.E. and the state throughout A.E.’s repeated attempts to obtain appellate review of the waiver order demonstrate that counsel valiantly attempted to make sense out of the unexplained interplay between sec. 48.47, sec. 808.03(1) and (2), and the court made appeal procedure established in D.H. The customary disposition of a case like this would be to deny the writ and remand for trial in the circuit court. However, due to the unique procedural background of this case, we deem it advisable, in the interests of justice, to permit A.E. the opportunity to seek leave to appeal under sec. 808.03(2) within ten days of our mandate.
By the Court. — The petition is denied without costs, and the cause remanded to the juvenile court for further proceedings consistent with this opinion.
“48.47 Appeal. (1) Any person aggrieved by an adjudication of the court under this chapter and directly affected thereby has the right to appeal to the court of appeals in accordance with s. 809.40. Appeal from an order granting or denying an adoption under s. 48.91 and from any circuit court review under s. 48.64 (4) (c) shall be to the court of appeals.
“(2) A child who has filed a notice of appeal shall be furnished a transcript of the proceedings appealed from or as much of it as is requested without cost upon the filing of an affidavit that the child or the person who is legally responsible for his or her care and support is financially unable or the person responsible is unwilling to purchase the transcript.”
For a detailed discussion of the changes made in sec. 48.18, Stats., by ch. 354, sec. 31, Laws of 1977, see, State ex rel. TDD v. *105cRacine County Cir. Court, 91 Wis.2d 231, 237-41, 280 N.W.2d 264 (1979).
The special procedure established by the court in D.H. did, however, indicate that review on a supervisory writ should be based on the record of the entire juvenile court proceeding. 76 Wis .2d at 296.
The basis for our concern with juvenile waiver orders is adequately discussed in D.H. and will not be reiterated here. See also, State ex rel. TDD v. Racine County Cir. Court, 91 Wis.2d 231, 280 N.W.2d 264 (1979); Mikulovsky v. State, 54 Wis.2d 699, 703-08, 196 N.W.2d 748 (1972); cf., Kent v. United States, 383 U.S. 541 (1966).