SHIRLEY S. ABRAHAMSON, J.
On February 26, 1979, George Jenieh, the defendant, filed a notice of appeal to the court of appeals from an order of the circuit court denying his motion to dismiss the criminal complaint on the ground that a second trial would place him twice in jeopardy contrary to the federal and Wisconsin constitutions.1 Upon motion of the State, the court of appeals dismissed defendant’s appeal, concluding that the order appealed from was not an order appealable as of right. The court of appeals refused, on its own motion, to grant defendant additional time in which to seek leave to appeal. The court of appeals, in effect, treated the defendant’s notice of appeal as a request for leave to appeal and then refused to grant leave to appeal. The court of appeals concluded upon review of the record and defendant’s brief that although former jeopardy provisions are intended to prohibit a second trial, under the appropriate circumstances, and not merely to serve as a basis for reversal of a subsequent conviction, “the issue raised has such doubtful merit that it is unlikely that subjecting the defendant to [77]*77trial at this time would cause him substantial or irreparable injury.”
We granted defendant’s petition to review the decision of the court of appeals that the order of the circuit court was not a final order appealable as of right. A decision by the court of appeals that an order is not appealable as a matter of right is a decision reviewable by this court upon a petition to appeal.2
Defendant asserts on appeal that the court of appeals erred in dismissing his appeal and that the circuit court [78]*78erred in not dismissing the charges because of double jeopardy.
We conclude that the court of appeals erred in not hearing the appeal, and we further conclude that the order of the circuit court should be affirmed.
I.
We turn first to the question whether a pretrial order denying a motion to dismiss based on double jeopardy is appealable as of right to the court of appeals.
Sec. 808.03, Stats., provides for appeals to the court of appeals as of right and by permission. Sec. 808.03 governs appeals as of right in civil and in criminal cases:3
“(1) Appeals as of right. A final judgment or a final order of a circuit court or county court may be 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.
“(2) Appeals by permission. A judgment or order not appealable 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;
[79]*79“ (b) Protect the petitioner from substantial or irreparable injury; or
“ (c) Clarify an issue of general importance in the administration of justice.”
The question of what orders and judgments are final for purposes of appellate review is a recurring question of statutory interpretation.4 The final judgment — final order rule is designed to prohibit piecemeal disposal of litigation and thus plays an important role in the movement of cases through the judicial system. Historically courts have, however, placed qualifications on the rule where the need for immediate review outweighs the purposes of the rule.
The defendant urges us to adopt the reasoning of the United States Supreme Court in Abney v. United States, 431 U.S. 651 (1977), and to treat this order as a final order. In Abney the United States Supreme Court held that pretrial orders rejecting claims of former jeopardy are “final decisions” under the federal statutes5 and are therefore immediately appealable as of right because the order satisfied three criteria.
First, the order denying the double jeopardy claim finally and completely determines a claim of right; the trial court has rejected the double jeopardy claim. Second, the double jeopardy claim is separable from, collateral to and independent of the principal issue at trial, namely the guilt of the accused of the crime charged.
Third, the double jeopardy rights asserted are too important to be denied review. The United States Su[80]*80preme Court recognized that if the accused were forced to face a second trial, without review of his double jeopardy claim, the accused would lose the full protection of constitutional rights even if there were an acquittal at the second trial or the conviction at the second trial were reversed on double jeopardy grounds. The Court said that “if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.”
We recognize, as did the United States Supreme Court in Abney, that interlocutory or piecemeal appeals are undesirable, especially in criminal prosecutions. The delays caused by piecemeal appeals are “inimical to the effective and fair administration of the criminal law.” DiBella v. United States, 369 U.S. 121, 126 (1962). At the same time we recognize that the double jeopardy provisions protect an accused not only against being twice subjected to punishment but also against being twice put to trial for the same offense. In Green v. United States, 355 U.S. 184, 187-188 (1957), Mr. Justice Black described the purpose of the clause as follows:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Quoted with approval, Abney v. United States, 431 U.S. at 661-662.)
In Berry v. State, 90 Wis.2d 316, 324, 280 N.W.2d 204 (1979), this court similarly viewed the double jeopardy protection:
[81]*81“The key to invoking double jeopardy protection is not simply whether a defendant, as in the present case, can point to a prior verdict or judgment of acquittal, but whether the defendant might be subjected to multiple prosecutions.”
Three members of the court are persuaded by the reasoning of the Abney
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SHIRLEY S. ABRAHAMSON, J.
On February 26, 1979, George Jenieh, the defendant, filed a notice of appeal to the court of appeals from an order of the circuit court denying his motion to dismiss the criminal complaint on the ground that a second trial would place him twice in jeopardy contrary to the federal and Wisconsin constitutions.1 Upon motion of the State, the court of appeals dismissed defendant’s appeal, concluding that the order appealed from was not an order appealable as of right. The court of appeals refused, on its own motion, to grant defendant additional time in which to seek leave to appeal. The court of appeals, in effect, treated the defendant’s notice of appeal as a request for leave to appeal and then refused to grant leave to appeal. The court of appeals concluded upon review of the record and defendant’s brief that although former jeopardy provisions are intended to prohibit a second trial, under the appropriate circumstances, and not merely to serve as a basis for reversal of a subsequent conviction, “the issue raised has such doubtful merit that it is unlikely that subjecting the defendant to [77]*77trial at this time would cause him substantial or irreparable injury.”
We granted defendant’s petition to review the decision of the court of appeals that the order of the circuit court was not a final order appealable as of right. A decision by the court of appeals that an order is not appealable as a matter of right is a decision reviewable by this court upon a petition to appeal.2
Defendant asserts on appeal that the court of appeals erred in dismissing his appeal and that the circuit court [78]*78erred in not dismissing the charges because of double jeopardy.
We conclude that the court of appeals erred in not hearing the appeal, and we further conclude that the order of the circuit court should be affirmed.
I.
We turn first to the question whether a pretrial order denying a motion to dismiss based on double jeopardy is appealable as of right to the court of appeals.
Sec. 808.03, Stats., provides for appeals to the court of appeals as of right and by permission. Sec. 808.03 governs appeals as of right in civil and in criminal cases:3
“(1) Appeals as of right. A final judgment or a final order of a circuit court or county court may be 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.
“(2) Appeals by permission. A judgment or order not appealable 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;
[79]*79“ (b) Protect the petitioner from substantial or irreparable injury; or
“ (c) Clarify an issue of general importance in the administration of justice.”
The question of what orders and judgments are final for purposes of appellate review is a recurring question of statutory interpretation.4 The final judgment — final order rule is designed to prohibit piecemeal disposal of litigation and thus plays an important role in the movement of cases through the judicial system. Historically courts have, however, placed qualifications on the rule where the need for immediate review outweighs the purposes of the rule.
The defendant urges us to adopt the reasoning of the United States Supreme Court in Abney v. United States, 431 U.S. 651 (1977), and to treat this order as a final order. In Abney the United States Supreme Court held that pretrial orders rejecting claims of former jeopardy are “final decisions” under the federal statutes5 and are therefore immediately appealable as of right because the order satisfied three criteria.
First, the order denying the double jeopardy claim finally and completely determines a claim of right; the trial court has rejected the double jeopardy claim. Second, the double jeopardy claim is separable from, collateral to and independent of the principal issue at trial, namely the guilt of the accused of the crime charged.
Third, the double jeopardy rights asserted are too important to be denied review. The United States Su[80]*80preme Court recognized that if the accused were forced to face a second trial, without review of his double jeopardy claim, the accused would lose the full protection of constitutional rights even if there were an acquittal at the second trial or the conviction at the second trial were reversed on double jeopardy grounds. The Court said that “if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.”
We recognize, as did the United States Supreme Court in Abney, that interlocutory or piecemeal appeals are undesirable, especially in criminal prosecutions. The delays caused by piecemeal appeals are “inimical to the effective and fair administration of the criminal law.” DiBella v. United States, 369 U.S. 121, 126 (1962). At the same time we recognize that the double jeopardy provisions protect an accused not only against being twice subjected to punishment but also against being twice put to trial for the same offense. In Green v. United States, 355 U.S. 184, 187-188 (1957), Mr. Justice Black described the purpose of the clause as follows:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” (Quoted with approval, Abney v. United States, 431 U.S. at 661-662.)
In Berry v. State, 90 Wis.2d 316, 324, 280 N.W.2d 204 (1979), this court similarly viewed the double jeopardy protection:
[81]*81“The key to invoking double jeopardy protection is not simply whether a defendant, as in the present case, can point to a prior verdict or judgment of acquittal, but whether the defendant might be subjected to multiple prosecutions.”
Three members of the court are persuaded by the reasoning of the Abney case and hold that a pretrial order denying a motion to dismiss based on double jeopardy is a final order and the defendant may, before the new trial is held, appeal that order “as a matter of right to the court of appeals” pursuant to sec. 808.03(1), Stats.6 To prevent defendants from engaging in dilatory appeal tactics, the court of appeals should establish procedures requiring the parties and the court to give the appeal expedited treatment.7
[82]*82Justice Callow and the author of this opinion would reach a result similar to the one reached by our colleagues, but by a different route. We would hold that this appeal does not come within sec. 808.03(1) but falls within sec. 808.03(2), Stats., an appeal by permission of the court of appeals; that ordinarily sec. 808.03(2), Stats., envisions the court of appeals looking at the equities of each individual case to determine whether the aggrieved party should be allowed to obtain appellate review of a non-final order; that it is not necessary for the court of appeals to exercise its discretion on the basis of each case in this type of order; that for the reasons set forth in Abney, every order denying a motion to dismiss based on double jeopardy falls within the criteria of sec. 808.03(2), Stats., for granting leave to appeal; and that therefore the court of appeals should grant every petition for leave to appeal such an order as a matter of course. Justice Callow and I would, therefore, pursuant to this court’s superintending and administrative authority8 and in order to expedite court processes and to further justice, direct the court of appeals (1) to grant each defendant leave to appeal from a pretrial order denying a motion to dismiss on double jeopardy grounds as a matter of course if the defendant elects to petition the court of appeals in the time and manner provided in Rule 809.50, Stats. ;9 and (2) to establish pro[83]*83cedures requiring the parties and the court to give the appeal expedited treatment.10
II.
We turn now to the merits of defendant’s claim that a further prosecution is barred by the double jeopardy clauses of the state and federal constitutions. Jeopardy had attached at the time the mistrial was declared because the jury had been selected and sworn. Sec. 972.07, Stats.;11 Crist v. Bretz, 487 U.S. 28 (1978). Although jeopardy had attached, the trial did not end in a conviction or an acquittal. Whether further prosecution is per[84]*84missible depends on the facts and circumstances of the case.
A brief description of the context in which a mistrial was declared by the circuit court follows: The defendant was charged in a criminal complaint dated April 11, 1977 with conspiracy to deliver marijuana in violation of secs. 989.31, 161.14(4) (k) and 161.41(1) (b), Stats. At the preliminary examination in September, 1977, and at a hearing on a motion to suppress in February, 1978, the defendant was represented by Attorney Carter and Attorney Schaefer and the State was represented by Assistant District Attorney Lowe. After several continuances, a pretrial conference was scheduled for October 16, 1978, and the jury trial for October 17, 1978. On October 17, 1978, Attorney Carter and Attorney Piano represented the defendant; Assistant District Attorney Molitor stated that he appeared on behalf of the State. Assistant District Attorney Lowe stated that he appeared specially and requested to make a statement.
Assistant District Attorney Lowe requested an adjournment of the trial to permit Assistant District At-orney Molitor to prepare for trial. Assistant District Attorney Lowe explained that until about ten days prior to the trial date he had been assigned to prosecute the case and he had been involved in all the stages of the proceedings. He stated that Attorney Piano had informed him about ten days earlier that Attorney Piano would be assisting Attorney Carter as defense counsel. Assistant District Attorney Lowe stated that he was a candidate for circuit judge in Milwaukee County and that Attorney Piano was co-manager of the campaign. Assistant District Attorney Lowe stated that he thought that he should withdraw from participation in the prosecution of the case because of the appearance of impropriety. Because the case had been assigned to Assistant District Attorney Molitor on the day preceding trial, [85]*85Assistant District Attorney Lowe asked that the state be given more time to prepare the case. The State acknowledged that defense counsel had gone to great trouble to secure the presence of witnesses for the trial and that an adjournment would inconvenience counsel and the court. Assistant District Attorney Molitor requested a short adjournment, perhaps of one week, because he did not feel he would be doing the State or the community a service in prosecuting the case with such little preparation. He said he had also noticed from the file that perhaps two or three essential witnesses had not been subpoenaed, one of which was an officer who was on vacation until the following day.
Defense Attorney Piano stated that he had represented the defendant previously and that he was well acquainted with the case. He stated that if the court adjourned the matter, his schedule was such that he could not try. the case until after the end of December, 1978, and that although witnesses had been subpoenaed for this trial, the defendant would not object to or request an adjournment..
Attorney Carter stated that his schedule was too full for the rest of that year for a trial of this length, but that in proceeding to trial with the State being represented by a lawyer who had not had time to prepare the case “there is a substantial risk that either justice will not be served or possibly even that something will happen to create a mistrial.”
The circuit court noted that a long time had elapsed in bringing this case to trial and that there had been no indication at the pretrial conference on the previous day that there might be a request for an adjournment. The circuit court recognized that ten days was not a long enough period of time in which to reassign the case in the district attorney’s office. However, the circuit court denied the request for adjournment because no request had been made at the pretrial conference; re[86]*86scheduling- the trial in the near future did not appear possible; there was extreme inconvenience and cost to the parties to again subpoena witnesses from New York and California; and justice required that “old cases” be tried promptly.
The circuit court commented that it did not think the “political” relationship between counsel for the state and for the defense would reduce their ability to perform their duties and concluded that “the need to maintain efficient administration of justice outweighs the appearance of potential conflict, which I do not believe actually exists, and therefore, I think that to grant an adjournment would be inappropriate.” The circuit court asked Assistant District Attorney Lowe to exercise his independent judgment as to the degree of his participation in the trial.
The circuit court invited the attorneys to submit proposed voir dire questions which on the previous day the court had asked the lawyers to prepare. The defense submitted proposed questions, and the State submitted a hand written list of areas of concern. At one point the State took a twenty-minute recess to write its proposed voir dire questions.
After the circuit court discussed and revised the questions with counsel, Assistant District Attorney Lowe said he wanted to note that:
“The Court has been submitted 44 questions by the defendant, it accepted 38 of those questions without modification. The State submitted 14 questions and I don’t think three got by without modification.”
The circuit court responded:
“I think, Counsel, that that does not reflect on a bias on the part of the Court. It may reflect on the fact that the defendant submitted theirs in writing, typed up, dictated, well-thought out, rather than to show up on the day of trial and then ask for a recess of twenty [87]*87minutes to draft their questions. I’m sure had your questions arrived in a form similar to Mr. Piano’s and Mr. Carter’s, probably they would have been thought out and any modifications might have been unnecessary.”
The circuit court began questioning the jury panel to determine whether any potential juror was related to or acquainted with the defendant, the attorneys and the prospective witnesses. Assistant District Attorneys Molitor and Lowe were introduced as representing the State. The circuit court asked Assistant District Attorney Lowe to introduce prospective witnesses for the State and Assistant District Attorney Lowe stated:
“. . . Your Honor, I think the jury should know that Mr. Molitor will be handling this case and I will be associating because it may become necessary for me to become a witness in this matter and, therefore, Mr. Mol-itor will be handling it. But the State may call the following witnesses. If you recognize any of these names, would you please raise your hands. . . .”
After further questions, the jury and the alternates were chosen.
After the jury left the courtroom, Attorney Carter questioned the propriety of Assistant District Attorney Lowe’s stating that Lowe was a potential witness in the case. Attorney Carter said that Assistant District Attorney Lowe’s statement came as a complete surprise because Lowe’s name was not on the list of witnesses supplied to the defense. Attorney Carter suggested that the Code of Professional Responsibility12 required Lowe [88]*88to withdraw from the case and that if Lowe testified, a mistrial would have to be declared. Assistant District [89]*89Attorney Lowe stated that he had told the jurors that he was a potential witness and that “for that reason I was not taking an active role in the presentation of the witnesses on the stand.” He noted that he might he called “on the issues of the John Doe if they are raised during this trial.”
The circuit court indicated it would hear additional arguments in this matter the following morning. The jury returned to the courtroom and was sworn and given [90]*90pretrial instructions. Assistant District Attorney Lowe’s request that the opening statement be postponed until the following morning was denied. Assistant District Attorney Molitor presented the State’s opening statement to the jury, and the court recessed until the following morning, October 18, 1978.
On October 18, 1978, out of the presence of the jury, Attorney Carter presented his research on the issue of an attorney being a witness. Assistant District Attorney Molitor responded that Assistant District Attorney Lowe was only assisting him in the case, that the State did not plan, at that time, to call Lowe as a witness, and that the defense had not indicated that it would call Lowe as a witness. The circuit court asked Assistant District Attorney Lowe to state whether he would be a witness. Lowe stated that he was not going to be a witness for the State, but he did not know if he would be called by the defense.
Attorney Carter asserted that Assistant District Attorney Lowe’s statement to the jury that it might be necessary for him to be a witness had already damaged the defendant and prejudiced the jury’s mind, especially because the jury had been instructed that the State is not required to use all of its witnesses. The defense thought that Assistant District Attorney Lowe’s statement to the jury added credibility to the State’s case and that the defense would not be able to cross-examine Lowe as to credibility. Assistant District Attorney Molitor suggested that the circuit court give a “curative instruction to the jury that perhaps Mr. Lowe was mistaken, he will not be called as a witness in this case,” in order to “obviate any impropriety, if there has been one.” Attorney Carter argued that no instruction could cure the damage, and he requested the circuit court to declare a mistrial. If a mistrial was not declared, Attorney Carter requested the court that Assistant District Attorney Lowe not participate in the case.
[91]*91The circuit court reviewed the applicable sections of the Code of Professional Responsibilities and stated that “Mr. Lowe’s representation to the jury yesterday, that he may be called as a witness, was a matter that under normal sets of circumstances would . . . compel his necessity to withdraw.” However, the court did not believe that Lowe’s “mere announcement that he might be a witness” had a prejudicial effect. After additional discussion on what curative instruction, if any, the circuit court should give, the parties requested a conference with the judge which was held off the record. After the conference the circuit court told the jury that it had declared a mistrial for complicated legal reasons and that the matter would be rescheduled and retried after they had completed their service as members of the jury.
After the jury was excused and left the courtroom, the circuit court explained on the record the reasons for declaring a mistrial: that the defense had moved for a mistrial because of Assistant District Attorney Lowe’s statement to the jury that he might be a witness; that it was determined that a curative instruction would not be an appropriate remedy; that the only option would have been to compel Assistant District Attorney Lowe to withdraw from participation in the case; and that this alternative was not viable because Assistant District Attorney Molitor was unfamiliar with this complicated case.
Attorney Carter stated on the record that the defense did not believe there was any prosecutorial misconduct in this case and that the unforeseen circumstances leading to the mistrial had begun about ten days before the trial began.
A second trial was scheduled for February 27, 1979, and on February 21, 1979, the defense filed two motions to dismiss, one on the basis of denial of right to speedy trial, and the other on the basis of double jeopardy.
[92]*92At the pretrial conference on February 26, 1979, the circuit court issued a written order denying the motion to dismiss on the basis of double jeopardy, and on the same day, the defendant filed a notice of appeal from the order to the court of appeals.
In cases where the defendant affirmatively moves for a mistrial, as in the case at bar, and the proceedings are terminated at defendant’s request and with his consent, the general rule is that the double jeopardy protection is not a bar to reprosecution. The defendant, by seeking a mistrial has surrendered his “valued right” to secure a verdict from the first tribunal. However, if defendant’s motion for mistrial is prompted by prosecutorial or judicial misconduct which was intended “to provoke” defendant’s motion or was otherwise “motivated by bad faith or undertaken to harass or prejudice” the defendant or “to afford the prosecution a more favorable opportunity to convict” the defendant, double jeopardy does bar further prosecution. See, e.g., Lee v. United States, 432 U.S. 23, 33 (1977); United States v. Dinitz, 424 U.S. 600, 611 (1976) ; United States v. Jorn, 400 U.S. 470, 485 (1971); United States v. Tateo, 377 U.S. 463, 467 (1964); State v. Harrell, 85 Wis.2d 331, 335, 270 N.W.2d 428 (Ct. App. 1978). If the defendant’s motion for a mistrial is prompted by prosecutorial error made in the exercise of good faith and professional judgment, there generally is no bar to retrial. State v. Calhoun, 67 Wis.2d 204, 225, 226 N.W.2d 504 (1975).13
The defendant asserts that the prosecutor deliberately forced a mistrial in this case in an effort to gain more time. Defendant bases his assertion on the fact that the [93]*93prosecutor asked for an adjournment which was denied. The prosecution could have thought that it had less likelihood of convicting the defendant with an “unprepared” assistant district attorney prosecuting the case, hut there is no indication in the record that Assistant District Attorney Lowe made the statement to the jury with the intent of provoking a mistrial in order to gain time and a more favorable opportunity to convict the defendant. The defendant attempts to prove that Assistant District Attorney Lowe deliberately prejudiced the jury by arguing that the record shows that the State either never intended to call Lowe as a witness (Lowe was not on the list of witnesses) or that the State did intend to call Lowe as a witness but used this technique in order to have Lowe continue to participate as a prosecuting attorney. The record does not support either theory. The record shows that Assistant District Attorney Lowe apparently thought in good faith that he might be called as a witness, and that if there was to be no adjournment he was required to take a limited role at trial.
The assistant district attorney’s informing the jury that he might be a witness, even if it constituted error, was not the product of “prosecutorial overreaching” as that phrase has been interpreted in prior decisions; the prosecutor’s conduct was certainly not so patently baseless as to lead us to infer that the prosecutor intended the misconduct to result in a mistrial or was motivated by bad faith.14
[94]*94At the time the mistrial was declared, defense counsel stated that there had been no prosecutorial misconduct causing the mistrial.15 In his motion to dismiss further [95]*95prosecution on double jeopardy grounds, defense counsel argued that prosecutorial misconduct caused the mistrial. Defense counsel maintains that the prosecutor’s “bad motives” were not discernible at the time of the mistrial but were demonstrated later when the prosecution added witnesses to those previously listed. The record does not show that the prosecution intended to cause a mistrial to obtain time in which to prepare a stronger case. During the interval between the mistrial and the date of the new trial, it appears that additional preparation was undertaken by the State, but that some of this additional preparation was probably due to the defense counsel’s expressed intent of calling additional witnesses.
We conclude that the court of appeals should have heard defendant’s appeal, and we further conclude that defendant’s double jeopardy claim is without merit. We affirm the order of the circuit court.
By the Court. — Decision of the court of appeals is reversed; order of the circuit court is affirmed.