(concurring in part). I concur with the result but disagree with the majority’s holding that the order appealed from is not final within sec. 974.05(1), Stats. I disagree with the majority’s holding that the state is authorized to seek an appeal of a nonfinal order not enumerated in sec. 974.05. I also disagree with the dictum stating that the defendant may seek a permissive appeal of a nonfinal order in a criminal case.
Both logic and precedent support the state’s contention that the finality of orders sought to be reviewed under sec. 974.05, Stats., should be tested by a standard different from the definition of finality for purposes of appeal in civil cases set forth in sec. 808.03(1), Stats. The precedents of this court clearly establish that a final order, for purposes of a state appeal under sec. 974.05 *78(1), Stats., is one which terminates a criminal special proceeding adversely to the state, even though the underlying criminal action may not be terminated. In State v. Bagnall, 61 Wis.2d 297, 212 N.W.2d 122 (1973), the proceeding was a hearing on a motion to withdraw a guilty plea. In State v. Antes, 74 Wis.2d 317, 246 N.W.2d 671 (1976), the proceeding was a motion to dismiss an information charging armed robbery. In neither case did the order appealed from prevent a judgment from which an appeal might be taken. In Bagnall, the case would have proceeded to trial with the state retaining any appeal rights it might have had if the guilty plea had not been entered. In Antes, the state was free to refile an information charging simple robbery. As in Bagnall, the only prejudice to the state if the order were not appealable was the loss of an opportunity to contest the issue decided at the hearing on the defendant’s motion.
Chapter 187, Laws of 1977, which created ch. 808, Stats., made only one change in the substance of sec. 974.05. It added to sec. 974.05(1) (a), the following underlined words:
“(a) Final order or judgment adverse to the state made before jeopardy has attached or after waiver thereof or after the setting aside of a verdict of guilty or finding of guilty, whether following a trial or a plea of guilty or no contest.” (Emphasis supplied.)
In amending sec. 974.05(1) (a), Stats., it was the intention of the legislature to codify Bagnall, an intention which has been frustrated by the majority’s overruling of Bagnall. The Bagnall order is no longer final; therefore it is not appealable by the state under sec. 974.05.
The logic supporting a different concept of finality for state appeals in criminal cases is that the state’s right to seek review of an intermediate order disappears when jeopardy attaches. In this case, if the state had not appealed the defendant would have been tried on one *79count of homicide when his alleged intoxicated driving caused four deaths. He could have been convicted and sentenced on only one count, if the state had not appealed, leaving three homicides unpunished. The state would be barred from further attempts to prosecute by the doctrine of double jeopardy. Thus, the order of “consolidation” effectively dismissed three of the four homicide counts. I find nothing in the new appeal laws leaving the state to the discretion of a reviewing court as to whether an appeal can be maintained under these circumstances.
In State v. Barrett, 89 Wis.2d 367, 280 N.W.2d 144 (1979), we held that there is no state right to seek review in a criminal matter unless affirmatively granted by legislative enactment. The only legislative enactment affirmatively granting a state right of review in a criminal case is sec. 974.05, Stats. Some of the orders made appealable therein would also be subject to discretionary review under sec. 808.03(2), e.g., orders suppressing evidence. Is the majority holding that these orders, made appealable of right under sec. 974.05, Stats., are nevertheless subject to the discretion of the reviewing court whether to hear the appeal? Statutes should not be interpreted so as to promote conflict between their provisions. I would hold that sec. 974.05 is the exclusive means for the state to appeal in a criminal case. I would also hold that the order in question is final within the meaning of sec. 974.05(1) (a).
I am not persuaded that the former state public defender is an authority on the application of the new appeal statutes.1 Traditionally, the defendant in a crimi*80nal case has been limited to the appeal rights afforded by writ of error, which lies only to review final orders and judgments. Sec. 972.11, Stats., was not construed to extend to criminal defendants, the right to appeal from interlocutory orders as in civil cases in State v. Beals, 52 Wis.2d 599, 199 N.W.2d 221 (1971); State v. Withers, 61 Wis.2d 37, 211 N.W.2d 456 (1973); or State v. Mordeszewski, 68 Wis.2d 649, 229 N.W.2d 642 (1975). The statute has not changed. Neither should its interpretation.
The court of appeals is authorized to issue a writ of error by sec. 808.02, Stats. I find nothing in the appeal statutes to indicate that criminal defendants are entitled to any greater appeal rights than they had prior to the creation of ch. 808. There is no such thing as a discretionary writ of error. Therefore, I would hold that the appeal by permission provisions of sec. 808.03(2), Stats., are not applicable in criminal cases. A contrary holding, as the majority seems to have made in this case, will open the flood gates to attempted appeals by the criminal defendants from every pretrial order. The court of appeals has enough to do without considering a flood of discretionary appeals in criminal cases. The holding of the majority that criminal defendants are entitled to seek appeals by permission is bad policy, makes for bad judicial administration, and is not required by the new appeal statutes.
The rules which the former state public defender drafted are rules of this court in ch. 809, not the statutes creating appeal rights in ch. 808. Sec. (rule) 809.30(1) (h) & (i), provides as follows:
“(h) The defendant shall file an appeal from the judgment of conviction and sentence and, if necessary, from the order of the trial court on the motion for postconviction relief within 10 days of the entry of the order on the postconviction motion.
*80“(i) Subsequent proceedings in the appeal are governed by the procedures for civil appeals.” (Emphasis supplied.)
There is nothing in any rule of this court to suggest that discretionary civil appeals are available in criminal cases.