¶1{concurring in part and dissenting in part). I concur with the majority’s resolution of the defendant’s cross appeal because I agree that the trial court erred when it dismissed the simple possession *77charge on double jeopardy grounds.
¶2I. legislative intent
¶3As noted by the majority, the Michigan Constitution does not provide for appeals by the people. Rather, the people’s right to appeal derives from statute.
¶4The statute governing such appeals, MCL 770.12(1); MSA 28.1109(1), provides an appeal of right from a final judgment or final order entered in a criminal case.
¶5Moreover, § 12 clearly prohibits an appeal by the people if it would violate the defendant’s right to be *78free from double jeopardy. In this case, the defendant argues that the decision to review an order granting a new trial after retrial would violate his right to be from double jeopardy because a successful appeal would mean reinstatement of his conviction from the first trial. However, I would not decide the constitutional issue whether allowing such an appeal would violate the defendant’s protections to be free from double jeopardy because I believe legislative intent and policy considerations should prevent the people from appealing in this instance.
¶6*79Clearly, § 12(2) contemplates an appeal by leave in an appeal by the people from an interlocutory order in a criminal case; § 12(1) does not provide for an appeal of right in this situation. Although the statute does not explicitly preclude the inclusion of this issue in an appeal by the people of right, I do not believe that the Legislature intended that an order granting a new trial could be appealed by the people of right, after retrial had occurred and the case had later reached final judgment.
¶7II. POLICY CONSIDERATIONS
¶8Moreover, policy considerations clearly support this position. The strongest policy consideration supporting prohibition of the instant appeal is that the prosecution’s interests are adequately protected by the ability to file an interlocutory appeal.
¶9Additionally, there are also several other strong policy reasons for requiring a prosecutor to file only an appeal from an interlocutory order granting a new trial. If a prosecutor were allowed to include the new trial issue in a later appeal of right, then the retrial *82could be rendered meaningless.
¶10The emotional and financial costs and waste of judicial resources can be prevented if the prosecution is required to appeal from an order granting a new trial immediately, if at all. Witnesses, victims, judges, jurors, attorneys, and defendants should not be forced to endure a retrial if that retrial can subsequently be rendered utterly meaningless. I believe these policy considerations support a rule that would require an appeal of an order granting a new trial before the new trial occurs.
¶12I would affirm the decision of the Court of Appeals, which held that, under § 12, the prosecution may appeal an order granting a new trial only by application for leave to appeal. Legislative intent and policy considerations support this position. Further, I would affirm the holding of the Court of Appeals that the trial court erred in dismissing the charge against the defendant on the basis of the double jeopardy provision. I would remand the case to the circuit court for a retrial of the charge of possession of over 650 grams of cocaine.
¶13 See part m.
¶14 See MCL 770.12; MSA 28.1109.
¶15 See ante, pp 51-52 (providing the express statutory language).
¶16 See id. Appeals by the people of right and by leave in criminal cases are also limited by defendants’ protections against double jeopardy.
¶17 Although I would not decide that constitutional issue in this case, I have reservations about the majority’s analysis and holding on this issue. The majority holds that such an appeal does not violate defendant’s right against double jeopardy, because he would not be subjected to a retrial; rather, the conviction at the first trial would be reinstated. The majority opines that at this point, the defendant would have already suffered the ordeal of a second trial. That being the case, there is now no possible remedy, because leaving unreviewed the trial court’s determination that the first trial was unfair, would not undo the embarrassment, expense, and ordeal of the second trial.
¶18My problem with that analysis is that it focuses on multiple prosecutions. However, in Abney v United States, 431 US 651, 661; 97 S Ct 2034; 52 L Ed 2d 651 (1977), the Supreme Court stated, quoting Price v Georgia, 398 US 323, 326; 90 S Ct 1757; 26 L Ed 2d 300 (1970):
“The [double jeopardy] prohibition is not against being twice punished, but against being twice put in jeopardy .... The ‘twice put in jeopardy’ language of the Constitution thus relates to a potential, i.e., the risk that an accused for a second time will be convicted of the ‘same offense’ for which he was initially tried.”
¶19Thus, the focus is on the exposure to the strain, embarrassment, and expense of a criminal trial more than once for the same offense, regardless of the result of the trial. By reinstating the defendant’s conviction from the first trial, the court would be revalidating a trial that previously had been invalidated when the judge set it aside sua sponte because of erroneous jury instructions. Although the defendant impliedly consented to the setting aside of the conviction from the first trial, he did not do so with the knowledge that the second trial might be needless if the first trial was determined to be fair. The propriety of the inclusion of an appeal of the new trial order in an appeal by right from the final judgment is an issue of first impression in Michigan. Thus, I do not believe there is sup*79port for the majority’s position that the defendant “voluntarily endured the ordeal of a second trial, knowing that it might be needless if the first trial was determined to be fair.” Ante, p 70.
¶20However, if the prosecution is allowed to appeal the new trial order other than interlocutorily, and if the court later determines that the new trial was erroneously granted, then that decision acts as a validation of the first trial and its resultant conviction. Double jeopardy protections are implicated because the defendant was already subjected to the second trial. In this case, the prosecution would be given two chances to convict the defendant: one, at the retrial, and two, by pursuing an appeal of the new trial order that could result in the reinstatement of the conviction. That is the scenario here. The prosecution failed to convict the defendant at the retrial and is now seeking to reinstate the original conviction.
¶21What is important to recognize is that the defendant only consented to the retrial on the understanding that the conviction of the first trial was vacated and he would be starting with a clean slate at the retrial. If the prosecution is allowed to appeal the new trial order after the new trial occurs, the defendant’s consent is vitiated. If the prosecution is allowed to take this belated appeal, the defendant’s double jeopardy protections are violated because he is forced to live in a continuing state of anxiety and insecurity regarding his future freedom, a state that the clause seeks to prevent from occurring.
¶22The majority posits that because the retrial has occurred “[tjhere is now no possible remedy.” Ante, p 71. However, the appropriate remedy is to require the prosecution to appeal interlocutorily or not at all.
¶23 I note that Judge Bandstra, who was a panel member of the Court of Appeals in this decision, was a cosponsor of 1988 PA 66 (which revised MCL 770.12; MSA 28.1109 to broaden the scope of appeals by the people) when he was a state representative. Thus, I find persuasive his interpretation that the Legislature did not intend the statute to allow the people to include an appeal from the interlocutory order in its appeal of right of the final judgment or final order entered in the case.
¶24 Even where a party has a right to appeal from a final decision, this Court has limited the types of issues that may be raised in an appeal from a final decision in a criminal case. This Court has held that some issues must be raised in an interlocutory appeal, or not at all.
¶25For example, in People v Crawford, 429 Mich 151, 156-157; 414 NW2d 360 (1987), this Court held that a violation of the twelve-day limit for holding a preliminary examination cannot be raised on an appeal from a final judgment, but must be raised in an interlocutory appeal before the preliminary examination, if at all, by applying for leave to appeal.
¶26Similarly, in People v Hall, 435 Mich 599; 460 NW2d 520 (1990), the majority (Cavanagh, J., dissenting), held that error in binding the defendant over for trial on the basis of inadmissible hearsay evidence did not require automatic reversal of the subsequent conviction because the defendant received a fair trial and was not otherwise prejudiced by the error. A majority of this Court remanded the case to the Court of Appeals for an analysis of whether the admission of hearsay evidence at the preliminary examination was harmless error. The majority stated:
[W]e believe the availability of an interlocutory appeal affords protection in those cases where an innocent accused should have been screened out by the preliminary examination process. [Id. at 615.]
¶27Thus, although this Court analyzed the issue, it in effect held that it was too late for the defendant to raise that issue and demand the relief of automatic reversal. Rather than providing the appropriate relief for a *81defect in the preliminary examination process, this Court instead decided that a harmless error analysis should apply.
¶28Additionally, in People v Thompson, 424 Mich 118; 379 NW2d 49 (1985), the defendant sought review of the trial court’s denial of his motion for directed verdict of acquittal in his appeal of right from the final judgment of conviction. Although the defendant had an appeal of right from the final judgment, the majority (Cavanagh, J., joined the opinion of Brickley, J., concurring in part and dissenting in part) held that the defendant’s interests were adequately protected by the subsequent retrial of the case, and that the issue of the sufficiency of the evidence in the prior trial that ended in a mistrial did not need to be reviewed. Id. at 134-135.1 note that three justices disagreed with that position and instead would have held that the defendant was entitled to appellate review of the sufficiency of the evidence claim before retrial. Id. at 136.
¶29If, as the majority holds, an appeal from a final judgment allows the appellant to appeal prior interlocutory orders, these appellants should have been allowed to raise and receive a decision on the merits of those issues in their later appeals of right. The majority’s attempts to distinguish these cases from the instant case are not persuasive. Rather, an appeal by the people from an order granting a new trial is the type that must be raised in an interlocutory appeal, or not at all.
¶30As stated in the amicus curiae brief of the Criminal Defense Attorneys of Michigan:
[I]f the retrial in Thompsonadequately protected Mr. Thompson’s right to be free of a conviction on inadequate evidence, it is impossible to understand how the retrial here did not protect the prosecution’s right to seek a conviction based on the evidence. [Id. at 6.]
¶31 In fact, both the Court of Appeals and this Court denied the prosecutor’s application for leave to appeal.
¶32 Contrary to what the majority posits in n 28, I do not ignore the fact that a third trial may not occur. However, a third trial would be required if, on remand, the Court of Appeals determines that the trial court did not abuse its discretion in granting a new trial on the basis of erroneous jury instructions. If the new trial grant was proper, the guilty verdict of the first trial could not be reinstated.
¶33However, even if the Court of Appeals determines that the trial court abused its discretion in granting a new trial, the policy reasons still advance the dissenting position. What the majority ignores is that a retrial already has occurred in this case. If the conviction is reinstated, then the retrial is rendered meaningless. The ordeal, cost, and waste refer to that trial as well as to a possible third trial. Our proposed holding would prevent these costs of meaningless retrials from being realized in future cases.