*1 $35,000 amount of the loan exceeds AFFIRMED IN PART AND RE- the notes are secured because interest VERSED IN PART. 537.1301(15)(a), in real estate. Code opinion rejected

1977. Earlier this argument, holding these notes were not open-end mortgage May

secured

24, 1976. Each must be sepa- treated as a

rate transaction. provi- These notes are to ICCC ENGLISH, Appellee,

sions, including requirement that notice given prior to cure be to suit. Because the statutory given, judg- notice was not MISSILDINE, The Honorable Dale S. against Ralph ment in the amounts Judge, Polk District Court

$7,548.29 $6,000 (note dated June capacity only, Appellant. his official 1976); $5,358.03 $5,000 (note for dated Au- No. 65087. gust 30, 1976); $11,378.06 (note $9,000 $3,773.97 (note June dated Supreme Court of Iowa. $3,000 27, 1977) dated June should have Oct. plaintiff’s been dismissed for failure to com- ply with the statute. Summary.

VII. judgment

We against Ralph affirm the

Manning Manning and Florence $14,974.59, plus

amount of interest 9, 1980,

May percent annum, per at 7 based $30,000

on a January note for dated

1969, and the mortgages foreclosure of the

securing obligation as set out in the (Division V.)

trial court decree. judgment

We also against affirm the

Ralph Manning Manning and Florence $86,726.03, plus amount of interest from 9, 1980,

May percent at the rate of per 8¾

annum, $69,000 based on a note for dated

May and the foreclosure of the

mortgage securing obligation as set (Division

out in the V.) trial court decree. judgment against affirm the Ralph in $14,345.58

the amount of separate July $24,110.

note (Division 1977 for

VI(a).) judgment against reverse the entered

Ralph separate on his other five notes. Di- VI(b) VI(c).

vision petition based on the notes described VI(b) (c)

in Division is ordered dis- prejudice.

missed without Costs shall be by plaintiff one-half Alfredo G. Parrish of Parrish & Del Gal- lo, one-half Moines, defendants. appellee. Des *2 Miller, Gen., Atty. Shirley Thomas J. Ann the statute does not Gen., Steffe, Atty. Channing furnishing Asst. address the issue of Dutton those serv- Werner, indigents Thomas represented by Asst. Polk At- ices to counsel. tys., appellant. for 19(4) Iowa R.Crim.P. does not reach the REYNOLDSON, J., Considered provides: issue either. It

UHLENHOPP, McCORMICK, McGIVE- Counsel for a defendant who is finan- SCHULTZ, RIN and JJ. cially expert unable to obtain or other adequate witnesses to an McCORMICK, Justice. fense of the request compensa- here is whether an application. tion in a written Upon find- right employ expert has the an and take ing, appropriate after inquiry, depositions when he is services are and that the de- represented by private counsel. Plaintiff financially is unable to English 18-year-old is an indi- compensation, the court shall authorize gent charged with theft in the third counsel to obtain such witnesses on behalf degree 714.1(3), under section The Code. of the defendant. The court shall deter- His mother retained counsel for him mine reasonable through payments totalling Because $900. payment and direct pay she could not afford to for the services pursuant who rendered chapter them handwriting expert of a deposition ex- 815, The Code. penses, plaintiff applied for those services authority The rule is county expense. When the trial court indigents witnesses for at trial. It does not application, brought denied the he this cer- distinguish between who are tiorari action. We sustain the writ. by court-appointed presented No issue concerning is the rea- counsel. Therefore it is authority per- necessity sonable of the desired services un- mitting represented der the standard delineated in State by private testimony counsel to obtain the McGhee, (Iowa 1974). expert witnesses at trial at ex- Handwriting disputed identification is pense. comparable It to Fed.R.Crim.P. plans to offer 17(b) purpose similar in to section testimony. plaintiff legiti- has a 781.2, The Code 1977. It authority pursuing mate interest discovery. The paying investigative already deposed State has his alibi witness- Hancock, (“Defendant’s N.W.2d es. pre-trial request for allowance of witness only question plaintiff is whether handwriting fees for a expert whom she entitled to premature would wish to call at trial was possible Three sources of authori- properly denied.”). imple- The rule ty urged were in the trial court and are ments an right defendant’s to com- They reiterated here. are section pulsory process and to a defense. Code, 19(4), Iowa R.Crim.P. and U.S. Hegwood, Cf. United States v. 562 F.2d Const, VI, applicable amend. to the states (5th 1977) (giving Cir. a similar inter- through the fourteenth amendment. pretation 17(b)); People to Fed.R.Crim.P. Watson, (1966) 36 Ill.2d 221 N.E.2d 645 Section 815.7 authorizes fees and sums (recognizing right on constitutional court-appointed grounds). attorneys. Wifvat, See Hulse v. (Iowa 1981). N.W.2d 707 If authority were We believe for the services re- a attorney, quested by plaintiff exists under his the State concedes the statute representa- authorizes to effective public payment of the services he desires. tion of counsel. For Hancock, See State v. 164 N.W.2d 332 effective counsel includes the reasonably necessary gues investi- that no constitutional violation exists gative long services. State as this alternative is available. (Iowa 104-05 see also argues also to hold otherwise would (“the Hancock, 164 N.W.2d at 333 denial of to retain counsel of his for a choosing, anal- own which he does not ysis sounding process overtones in due have. *3 protection laws”). the equal The The begs State’s constitutional to Constitution does not limit If, held, question. the as we have represented by appointed defendants or as- provides authority for furnish- signed counsel. The determinative ing investigative at indigency. is the defendant’s When in- his public expense regard without to whether digent status is established the “defendant indigent counsel at constitutionally to entitled those defense public expense, the fact rep- services for which he demonstrates a need.” expense by resented counsel at have People Worthy, Cal.App.3d 109 the same is not material. would be Cal.Rptr. (1980); 167 406 see 3 strange if Constitution Wright, Federal Practice and Procedure: government to furnish counsel both (1969); Margolin Criminal 740 at 235 investigative services in cases Wagner, Indigent Criminal Defendant indigent requests needs and and Defense Services: A Search for Consti- only investigative services. The State’s Standards, Hastings tutional L.J. 647 theory impose would an unreasonable and Note, (1973); Right to Aid Addition to unnecessary additional burden Defendants, Indigent Counsel for Criminal treasury. (1963). 47 Minn.L.Rev. 1054 Moreover, we do not share State’s 19(4) partially 815.7 and rule Section im indigent’s right concern about an to be plement right. this constitutional Although counsel of his choice when the provisions those do not paid public expense. is not at situation, independently the Constitution have recognized that an judicial recognition of mandates an indi have this of choice when counsel is gent’s right necessary investigative to serv paid Williams, funds. 104; ices. See 207 N.W.2d at 520-21, Worthy, Cal.App.3d at 167 Cal. no depriving reason exists for an indigent Rptr. person The fact that a third same of choice as a retained counsel does means when the is able to obtain indigent. itself affect his as an status public expense. counsel without Uhlenhopp, Schmidt Iowa Under the record in (1966). indigen- Plaintiff’s hold that denying plain- erred in cy undisputed. application tiff’s investigative services this is not case where an public expense. the writ sustain impecunious accused has rendered himself proceedings. remand for further expenditure an unreasonable of funds to WRIT SUSTAINED. retain counsel. Nor is it a case where counsel’s fee reasonably should All Justices concur UHLEN- expected investigative to cover services. HOPP, J., specially. who concurs defending In the court’s order in UHLENHOPP, (concurring spe- Justice

present case, the State nevertheless con- cially). plaintiff’s remedy tends that accept is to counsel, assigned in We have here an which event section ($800 815.7 would authorize whom was available $900 ' requested investigative mother earnings) his own attorney. State ar- retain an justice” provided tion in the interests of now asks amount and — up. he shows his retainer is used on defendant’s be- depositions. half —a point accept This is the at which I cannot argument. appar- Defendant indigent defend- doubt that an I have no ently happened believes that'what constitutionally entitled to ant is appropri- retainer the received is none of the tive services public’s I believe it becomes the equal protection of business. ate cases as a matter of laws, public’s business when defendant asks for since an affluent defendant could public funds. I further believe that them with his own funds. Defend- obtain obligated must show retainer was used ant’s mother up under the them. in section 815.7—“the standard Assembly The General for like services as an to have means for defendant community.” It has enacted sec- services. *4 bottom, At raises tion The Code 1981: profession of whether the of law issue attorney appointed by the court to An completely private has become a business any person charged with a represent some of its old whether it has retained in this state shall be entitled to a crime generations public aspect. For which be reasonable shall aspect underemphasized by legisla- ordinary customary charges for and Attorneys indigents gratu- tures. defended community like services in the to be de- itously in the federal courts and received a judge in each case of the cided pittance Today in the Iowa courts. in mere court, including such sum or sums district attorneys are com- the federal courts such may determine are as public, pensated and in Iowa courts investigation jus- interests of public ordinary they receive from the appeal the tice and in the event of cost customary charges community. obtaining transcript of the trial and believe, however, I that we should not printing of the trial record and neces- swing from one extreme to other sary of the defendant. briefs behalf nullify altogether the traditional as- attorney not follow the case Such need pect profession of law. As officers of the county appellate or into the into another court, attorneys higher obliga- have a by the court at court unless so directed defendant, I would read section tion than tradesmen. light applying it to the 815.7 in that when grounds litigation further are not ca- unreasonable, compensated partially pri- attorney at- who is pricious or but if such torney vately partially publicly. When such does so his or her fee shall compensation, I accordingly. Only attorney attor- asks for determined one ney any require awarded in one would him to account for the use of fee shall be so cases, the basis of the felony that in class “A” retainer on customary charges in the com- two be authorized. munity. I think that if defendant desires Thus if a retained play according he must to the rules of

funds expense, still has further game provided by Assem- services and General appoint- provide, and asks to be bly. section 815.7 is restricted to Since that he can receive “attorney[s] appointed by the court” de- ed at services, he apply public payment to have his for his further fendant will have to the retainer appointed. should be to show that present attorney so The attor- past ney then to reimbursement was used for will be entitled conformity with the standard of section investigative services in accordance with ordinary and the section —“such sum or sums as the court 815.7—the community. for like services in the may determine are privately be true when a retained attor- would not disclose that fact same should expense money ney asking asking from to the it court account for when here, distinguished public, as public, for a fee from the whether for his further services. money for his own own services or for expressly deal with Section 815.7 I would sustain the writ and paid partial- the case of the district court for ly partially from funds and appointment of his retained funds, it nor does exclude such cases. public expense upon accounting for the re- those cases come within I would hold tainer of $900. section, they are

provisions of the section. The section does either, require, expressly that the attor-

ney partially paid must

disclose that fact when he asks for

funds. But the situation would be unthink- who has

able in which received