¶1(dissenting). The majority opinion changes longstanding rules of appellate practice and mandates that an accused seek leave to appeal a bindover order entered after a preliminary hearing in the court of appeals. As a result, even though the defendant in this case followed the appellate procedure in existence at the time of his preliminary hearing and trial and properly sought review of errors in the preliminary hearing after conviction,
¶2Although the majority opinion grants an accused a means of obtaining appellate review of a bindover order, it assumes that the court of appeals, which can control the number of appeals from pre-final judgments it hears, is likely to grant few leaves to appeal. If so, the procedure this decision adopts seriously erodes the preliminary hearing as a protection for the accused, and I would not favor the newly adopted procedure.
¶3I believe that the court of appeals adhering to sec. 808.03(2)
¶4As the majority opinion acknowledges, the court of appeals will have to examine each petition for arguable merit. The more meritorious the claim, the greater the risk of substantial and irreparable harm if the court of appeals does not grant petitioner leave to appeal. The court of appeals will be examining the merits of the petition without the benefit of the record or full briefs on the issues. This is a cumbersome aiid error-prone procedure.
¶5Accordingly, in order to handle petitions for leave to appeal from bindovers fairly without delay in criminal trials and in compliance with sec. 808.03(3) and sec. (Rule) 809.50, the court of appeals will have to grant each petitioner (1) leave to appeal, (2) a stay of the criminal proceeding on petitioner's request, and (3) an expedited appeal. Unless the court of appeals adopts such a procedure defendants will be deprived of meaningful review of bindover orders. The court of appeals now uses this type of procedure for petitions for leave to appeal in cases involving double jeopardy claims and juvenile waiver orders.
¶6*641The majority opinion places sole responsibility on the court of appeals to review bindovers from preliminary hearings but does not acknowledge the possible effect this new procedure may have on the court of appeals' docket. The majority opinion merely assures the judges of the court of appeals (now struggling with 3,000 appeals filed last year) that this decision will not increase their workload significantly. The state
¶7For the reasons set forth, I dissent.
¶8I am authorized to state that Justice William A. Bablitch joins in this dissent.
¶9When the defendant was tried no rule, statute, or case required the defendant to pursue an interlocutory appeal to preserve his legal rights. State v. Olson, 75 Wis. 2d 575, 584, 250 N.W.2d 12, 17 (1977); State v. Sorenson, 135 Wis. 2d 468, 471, 400 N.W.2d 508, 510 (Ct. App. 1986), rev'd on other grounds, 143 Wis. 2d 226, 421 N.W.2d 77 (1988); State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 224, 369 N.W.2d 743, 748 (Ct. App. 1985).
¶10Section 808.03(2), Stats. 1989-90, provides as follows:
*639(2) Appeals by permission. A judgment or order not appeal-able 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.
¶11Section (Rule) 809.50, Stats. 1989-90, provides as follows:
809.50 Rule (Appeal from judgment or order not appeal-able as of right). (1) A person shall seek leave of the court to appeal a judgment or order not appealable as of right under s. 808.03 (1), by filing within 10 days of the entry of the judgment or order a petition and supporting memorandum, if any. The petition must contain:
(a) A statement of the issues presented by the controversy;
(c) A statement showing that review of the judgment or order immediately rather than on an appeal from the final judgment in the case or proceeding will materially advance the termination of the litigation or clarify further proceedings therein, protect a party from substantial or irreparable injury, or clarify an issue of general importance in the administration of justice . . ..
¶12In petitions to appeal from bindover orders, the court of appeals must determine whether the petitioner obtains an immediate review or never obtains a review. In contrast, in other appeals from non-final orders the court of appeals looks at the equities of each individual case to determine whether the aggrieved party should obtain immediate appellate review of a non-final order instead of review at a later time on appeal of the final order.
¶13This case differs from appeals on double jeopardy claims and juvenile waiver orders, with which the majority opinion analogizes this case, majority op. pp. 632-633, because in these cases the defendant's failure to seek an interlocutory appeal does not forfeit review of the error on appeal of the final judgment. See State ex rel. A.E. v. Circuit Court for Green Lake County, 94 Wis. *6412d 98, 288 N.W.2d 125 (1980) (juvenile waiver), and State v. Jenich, 94 Wis. 2d 74, 288 N.W.2d 114 (1980) (double jeopardy).
¶14The state argues that defendants will not ordinarily petition for leave to appeal from bindover orders because a successful appeal results only in another preliminary hearing and the likelihood of avoiding trial is limited.
¶15The defendant predicts an increase in the number of petitions, because failure to file a petition will constitute a waiver of any defects at the preliminary and might give rise to claims of ineffective assistance of counsel.