(dissenting). I dissent because I think the majority errs in concluding that the court of appeals has no jurisdiction in this case. The majority reaches this conclusion because it erroneously treats sec. 971.31(10), Stats.,1 as if it governs the appellate jurisdiction of the court of appeals and erroneously treats this appeal as if it were taken from an order denying a motion to suppress.
Sec. 971.31(10), Stats., neither grants the defendant a right to appeal from an order denying a motion to suppress, nor grants jurisdiction to the court of appeals to hear an appeal from an order denying a motion to suppress. Sec. 971.31 is part of ch. 971 which is entitled “Proceedings Before and At Trial;” ch. 971 is not concerned with proceedings on appeal. Sec. 971.31 is captioned “Motions Before Trial.” As I shall explain later, sec. 971.31(10), Stats., gives the accused the opportunity to obtain appellate review of an order denying *464motion to suppress, if the defendant has perfected an appeal.
Although the majority opinion would lead one to believe that the defendant has appealed from the order denying his motion to suppress evidence and that the defendant “did not attack the validity of the commitment order in the court of appeals” (slip opinion p. 1), the facts are otherwise. The defendant is attacking the validity of the order committing him. He brought a writ of error to review the circuit court’s order committing him to the Department of Health and Social Services pursuant to sec. 971.17, Stats.,2 by reason of the court *465having found him not guilty by reason of mental disease or defect. The defendant is attacking the validity of the commitment order by attacking one of the underlying foundations of the order, namely, the defendant’s guilt of the crime charged (except for the defense of mental disease or defect).3 If the defendant does not admit his guilt, and if he is found not guilty of the crime (regardless of his defense of mental disease), he cannot be committed under sec. 971.17, Stats. Perhaps the defendant could be committed under a civil procedure, but not under sec. 971.17, and criminal and civil commitments are not equivalents in Wisconsin.
I conclude that the court of appeals has appellate jurisdiction in this case because the circuit court’s order of commitment based on its finding that the defendant is not guilty by reason of mental disease or defect is the first and only “final order” in the criminal proceedings between the state and the defendant and is the only order *466appealable as of right by the defendant. If this appeal is governed by pre-August 1, 1978 law, the finding and commitment, a final order in the criminal proceeding, is appealable pursuant to sec. 974.03, Stats. 1975.4 If this appeal is governed by post-August 1, 1978 law, the finding and commitment, a final order in the criminal proceeding, is appealable pursuant to sec. 808.03(1), Stats.5 Under both pre- and post-August 1, 1978 appellate practice and procedure the court of appeals has jurisdiction to hear the appeal.
In contrast, the majority reasons that there are two proceedings here. The first is the two-part criminal proceeding which ended in a finding of not guilty by reason of mental disease or defect. This finding is not appeal-able by the defendant, says the majority, because it is an acquittal. According to the majority, the second proceeding is the commitment proceeding which ended here in an order of commitment; this order is appealable, but *467review on appeal would not include any matters arising prior to the “acquittal.”
The import of the majority opinion is that the defendant found not guilty by reason of mental disease or defect can never get review of the “guilt” phase of the trial. The majority says a finding of not guilty by reason of mental disease or defect is equivalent to an acquittal and that the defendant cannot appeal an “acquittal” because he is not an aggrieved party.
I cannot equate a finding of not guilty by reason of mental disease with an acquittal. In an acquittal the criminal proceeding ends. A finding of not guilty by reason of mental disease and defect does not end the criminal proceeding. The judge’s finding of “not guilty by reason of mental disease or defect” renders the defendant subject to a criminal commitment proceeding.
As I see it, the defendant is thus aggrieved by the finding of not guilty by reason of mental disease or defect, but he cannot appeal as of right because the finding is not a “final order.” The finding is the basis for the next step in the criminal proceeding, namely the criminal commitment hearing. The order relating to commitment is the final order under sec. 808.03(1), Stats.; it is the final disposition of the state’s prosecution of the defendant.
The majority, relying on State ex rel. Kovach v. Schubert, 64 Wis.2d 612, 219 N.W.2d 341 (1974), and State ex rel. Farrell v. Stovall, 59 Wis.2d 148, 207 N.W.2d 809 (1973), concludes that the criminal prosecution ends with the non-appealable finding of not guilty by reason of mental disease or defect and that the commitment proceeding is an independent proceeding. Kovach and Farrell were criminal cases (one sex deviate, the other not) which raised the question whether the equal protection clause of the federal constitution required that the same protections be provided to the defendant in a *468criminal commitment hearing as were provided in a civil commitment hearing.
Although Kovach and Farrell use the words “independent proceeding” the court was not thinking or speaking of independent proceedings in terms of appellate practice and procedure. The court was speaking of independent proceedings in terms of comparing the commitment proceeding to a sentencing proceeding and in terms of deciding what constitutional protections are required to order commitment. The court explained this position clearly in Huebner v. State, 33 Wis.2d 505, 526, 147 N.W.2d 646 (1967), upon which Farrell and Kovach rely, saying:
“We consider this commitment procedure so essentially different from penal sentencing as to amount to an independent proceeding which determines such important rights of the defendant unrelated to the determination of guilt that due process requires a hearing thereon as much as it does for subsequent hearings on the same issue.”
As a result of the majority opinion, I suppose the accused must, after the circuit court enters an order denying the motion to suppress, petition the court of appeals, under sec. 808.03 (2), Stats., for leave to appeal the order. If leave to appeal is denied the accused must then decide whether to proceed with his plea of not guilty by reason of mental disease or defect, thereby losing his opportunity for review of the order denying suppression if he is committed under sec. 971.17, Stats., or withdrawing his plea of not guilty by reason of mental disease or defect, pleading guilty and obtaining review of the order denying suppression on appeal of the conviction.
In the instant case the defendant pleaded “guilty” in the first phase of a trial. According to the reasoning of the majority, if the defendant had pleaded not guilty, had been found guilty by a jury in the first part of the bifurcated trial, and had been found not guilty by rea*469son of mental disease or defect by a jury in the second part of the trial (sec. 971.175, Stats.), he could not have obtained appellate review of alleged violations of constitutional rights during the guilt phase of the trial. In contrast, an accused, whom a jury finds guilty and sane, can seek such appellate review. Under the reasoning of the majority, the accused who pleads not guilty and is found guilty by a jury would be forced to choose between seeking appellate review of alleged violations of constitutional rights which occurred during the guilt phase of the trial and pleading not guilty by reason of mental disease. The majority does not discuss the validity of a statutory scheme requiring an accused to choose between (1) appealing a jury verdict of guilty which defendant claims is invalid as denying him constitutional rights, and (2) continuing the trial on a plea of not guilty by reason of mental defect. I am concerned about the validity of forcing a defendant to make this choice.
I believe the majority has improperly cast the issue in this case as one of “appellate jurisdiction.” I believe the issue is whether the defendant waived his right to seek review of the order denying the motion to suppress by his “plea of guilty.”
Prior to the enactment of sec. 971.31(10), Stats, (effective July 1, 1970), the defendant would have waived his right of review, because this court had held that the right to review an order denying the motion to suppress is waived by a guilty plea. Foster v. State, 70 Wis.2d 12, 19, 20, 233 N.W.2d 411 (1975). In Hawkins v. State, 26 Wis.2d 443, 446-447, 449-450, 132 N.W.2d 545 (1965), we explained the waiver upon a guilty plea as follows:
“. . . Upon his original pleas of not guilty, he had the right to a trial. If convicted by the use of evidence he had moved to suppress, he could have obtained a review by this court of the denial of his motion to suppress. By changing his pleas to guilty, he deliberately rejected that course. He had the advice of counsel who was aware *470of the problem, having represented Hawkins on the motion to suppress. Hawkins’ own statements before the circuit court made it clear that the choice was deliberate and that he was aware of the full range of penalties to which he was exposed. He felt, perhaps mistakenly, that pleas of guilty would be advantageous to him by persuading the court to impose a lighter sentence than would have followed a trial. Although he has raised questions as to the validity of the search which can be said to be arguable, invalidity does not clearly appear. We find nothing in the circumstances which would entitle him, as a matter of right, to be relieved of the consequences of his choice, or which would make it an abuse of discretion not to have done so.
“We are of the opinion, however, that a plea of guilty is properly deemed a waiver of the claim of unlawful search and seizure ... [I]t does not seem unfair to require that if he wanted to litigate further his claim of unlawful search, he should have continued with his pleas of not guilty.”
Sec. 971.31(10), Stats., expressly changed the rule of waiver by providing as follows:
“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 guilty plea.”
The reason for permitting an accused to enter a plea of guilty and to challenge the denial of his motion to suppress is to encourage guilty pleas and to reduce the number of contested trials when the only issue is whether or not the order denying a motion for suppression of evidence was proper.
The Judicial Council Comment to sec. 971.31(10), Stats., explains the purpose of the section as follows:
“Sub. (10) is a new provision. It permits a defendant to appeal from a guilty plea when, prior to the entry of the guilty plea, the court had denied a motion to sup*471press evidence. On review, the appellate court can determine whether or not the order denying a suppression of evidence was proper. This subsection, based upon N.Y. Cr. Code s. 813-c, 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. In such instances defendants usually are only contesting the legality of the search and not whether or not they did, in fact, possess the items seized. S. 974.-06 affords a complementary right to the state and should be read in conjunction with this subsection.” 42A Wis. Stats. Annot. p. 266 (1971).
The majority is correct that sec. 971.31(10), Stats., speaks in terms of “appeal from a judgment of conviction.” I interpret the majority opinion as holding, as a matter of statutory construction, (1) that the legislature intended sec. 971.31 (10), Stats., to be a very limited exception to the general rule that a guilty plea waives the defendant’s right to challenge the order; (2) that the section is not applicable here because there is no appeal from a conviction; and (3) that the defendant in the instant case waived his right of review of the order by a plea of guilty. I disagree with this interpretation of sec. 971.31(10). Several factors indicate that the legislature did not intend this narrow, restricted reading of sec. 971.31(10), Stats.
Sec. 971.31(10) was designed to alleviate an undesirable procedural “catch 22” which caused unnecessary over-burdening of trial calendars. Prior to the adoption of sec. 971.31(10), if the accused wished to challenge the legality of the use of the evidence, the accused had to subject himself and the state to a trial on the issue of guilt. Such a trial is a waste of time, money and manpower. Sec. 971.31(10) was designed to allow an accused to challenge the legality of the use of the evidence without having to endure a full trial on the issue of guilt and should be interpreted reasonably to accomplish this purpose.
*472This court has in a prior decision extended the application of sec. 971.31(10) beyond its specific terms to interpret sec. 971.31(10) reasonably to accomplish its purpose. In State v. Meier, 60 Wis.2d 452, 454, 210 N.W.2d 685 (1973), this court extended sec. 971.31(10) to encompass a defendant who enters a plea of nolo contend-ere, although sec. 971.31(10) speaks only of a plea of guilty. The court apparently concluded that a plea of nolo contendere has essentially the same effect in a criminal case as a plea of guilty and that it is logical to assume that the legislature intended sec. 971.31(10) to include a plea of nolo contendere even though the legislature failed to so state.
I believe the legislature used the word “conviction” in sec. 971.31(10), Stats., to convey the idea that the defendant will take the appeal after the litigation between the parties is concluded. In other words, the legislature wanted the defendant to appeal from the final judgment or order, not from the “intermediate” order denying the motion to suppress. Interpreting sec. 971.31(10), Stats., in this way, I conclude that a commitment on a finding of not guilty by reason of mental disease or defect has, for purposes of sec. 971.31(10), essentially the same effect as a judgment of conviction and should be treated as a conviction for purposes of sec. 971.31 (10).
Because I conclude that the court of appeals has jurisdiction over the appeal and that the defendant has not waived his right to challenge the circuit court’s order denying his motion to suppress, I would remand the matter to the court of appeals for a determination of the merits of the defendant’s claim.
I am authorized to state that Mr. Chief Justice Beil-fuss and Mr. Justice Heffernan join in this dissenting opinion.
Sec. 971.31(10), Stats., provides:
“(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.”
Sec. 971.17, Stats., provides:
“971.17 Legal effect of finding of not guilty because of mental disease or defect. (1) When a defendant is found not guilty by reason of mental disease or defect, the court shall order him to be committed to the department to be placed in an appropriate institution for custody, care and treatment until discharged as provided in this section.
“(2) A reexamination of a defendant’s mental condition may be had as provided in s. 51.20(16), except that the reexamination shall be before the committing court and notice shall be given to the district attorney. The application may be made by the defendant or the department. If the court is satisfied that the defendant may be safely discharged or released without danger to himself or herself or to others, it shall order the discharge of the defendant or order his or her release on such conditions as the court determines to be necessary. If it is not so satisfied, it shall recommit him or her to the custody of the department.
“(3) If, within 5 years of the conditional release of a committed person, the court determines after a hearing that the conditions of release have not been fulfilled and that the safety of such person or the safety of others requires that his conditional release be revoked, the court shall forthwith order him recommitted to the department, subject to discharge or release only in accordance with sub. (2).
“(4) When the maximum period for which a defendant could have been imprisoned if convicted of the offense charged has elapsed, subject to s. 53.11 and the credit provisions of s. 973.155, the court shall order the defendant discharged subject to the right of the department to proceed against the defendant under ch. 51. If the department does not so proceed, the court may order such proceeding.”
Sec. 971.06(1), Stats., provides:
“Pleas. (1) A defendant charged with a criminal offense may plead as follows:
“(a) Guilty.
“(b) Not guilty.
“(c) No contest, subject to the approval of the court.
“(d) Not guilty by reason of mental disease or defect. This plea may be joined with a plea of not guilty. If it is not so joined, this plea admits that but for lack of mental capacity the defendant committed all the essential elements of the offense charged in the indictment, information or complaint.”
It appears that under sec. 971.06(1) (d), Stats., a defendant who pleads not guilty by reason of mental disease or defect does not actually have to join this plea with a “plea of guilty,” because the plea “not guilty by reason of mental disease or defect” is itself a plea of guilty, an admission of the essential elements of the offense except mental capacity. In the instant case the defendant did enter a plea of guilty and the court explained the significance of the plea and accepted the plea. The finding of not guilty by reason of insanity “presupposes the conclusion that the defendant committed the acts charged.” Hill v. Burke, 289 F. Supp. 921, 928 (1968). See also State v. Hebard, 50 Wis.2d 408, 420, 184 N.W.2d 156 (1971).
Sec. 974.03, Stats. 1975:
“Appeals to supreme court; time for taking. In lieu of prosecuting a writ of error, either party may appeal to the supreme court in the manner provided in civil cases. The service of a notice of appeal or the issuance of a writ of error shall be made within 90 days after the entry of judgment or order appealed from. If a motion for a new trial has been made within the 90-day period, an appeal from the denial of the motion or from the judgment of conviction may be taken within 90 days after pronouncement of the order denying the motion or within 90 days after such motion is deemed overruled.”
Sec. 808.03(1), Stats.:
“Appeals to the court of appeals. (1) Appeals as op right. A final judgment or a final order of a circuit court or county court may he 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.”