(dissenting).
Section 775.4 of the Iowa Code implements the constitutional guarantee of the right to counsel and provides for appointment of counsel if the defendant is unable to employ any. Section 775.5 then provides in part:
An attorney appointed by the court to defend any person charged with a crime in this state shall be entitled to a reasonable compensation to be decided in each case by the court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice and in the event of appeal the cost of obtaining the transcript of the trial and the printing of the trial record and necessary briefs in behalf of the defendant.
The statute contains no provision for reimbursement of the county for attorney fees and expenses. Nor do the criminal procedure statutes provide for taxing to defendants the fees and expenses of court-appointed attorneys.
Some Iowa statutes which authorize public payments to or on behalf of individuals also provide for reimbursement of the public. An illustration is § 252.13 of the Code, which provides that counties shall have the right of reimbursement under certain circumstances for payments from the poor fund. On the other hand, some statutes do not provide a right of reimbursement; the public payment is an outright grant.
The present statute, in §§ 775.4 and 775.5, is of the latter kind. Liability of the individual to reimburse is not provided and simply does not exist. This court therefore held in 1969 that a county cannot recoup attorney fees and expenses from a defendant either by independent action or as part of the costs. Woodbury County v. Anderson, 164 N.W.2d 129 (Iowa). Requiring a defendant to reimburse as a condition of probation impermissibly accomplishes indirectly what cannot be done directly: the result of imposing a requirement to reimburse as part of probation is the same as imposing a requirement to reimburse as part of the costs.
In Anderson the court invited legislative attention to the subject of reimbursement, and at its next session the legislature did enact a provision which covers some cases, in 63 G.A. ch. 1171, § 6, now Code 1975, § 336B.6:
If a court finds that a person desires legal assistance, and is financially able to secure counsel but refuses to employ an attorney, the court shall employ an attorney to represent such person at public expense. The attorney fee paid by the state or county in such cases shall be taxed as part of the court costs against the person receiving the legal assistance, and the state or county shall be reimbursed for said fee when the court costs are paid.
This statute, however, does not reach the present case. The district court ruled, and correctly I think, that originally defendant was unable to employ counsel. As stated in Morgan v. Rhay, 78 Wash.2d 116, 119, 470 P.2d 180, 182, “To qualify for appointed counsel, it is not necessary that an accused person be utterly destitute or totally insolvent. Indigence is a relative term, and must be considered and measured in each case by reference to the need or service to be met or furnished. In connection with the constitutional right to counsel, it properly connotes a state of impoverishment or lack of resources which, when realistically viewed in the light of everyday practicalities, effectually impairs or prevents the employment and retention of competent coun*247sel.” See also Schmidt v. Uhlenhopp, 258 Iowa 771, 140 N.W.2d 118.
We have then a statute providing for counsel at public expense but no statute for reimbursement of the public except in the limited situation of § 336B.6. We have a case in which defendant originally was unable to employ counsel but by time of sentence was able to do so (I will assume). In that setting could the trial court appropriately require in probation conditions that defendant reimburse the county for counsel fees?
Not infrequently the reimbursement problem arises after sentence when the defendant becomes able to reimburse the public — indeed the matter of reimbursement normally does not arise unless the defendant becomes able to pay. E.g., Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642. Such is basically the situation here, but this defendant simply got a job sooner than most defendants do, perhaps because of his mechanical skill. Ordinarily, however, the cases which allow reimbursement in such situations involve statutes authorizing recoupment, such as the statute involved in Fuller v. Oregon, supra. See also State v. Gerard, 57 Wis.2d 611, 627, 205 N.W.2d 374, 383 (based upon statute allowing taxing as costs “[ajttorney fees payable to the defense attorney by the county”). We in Iowa do not have such a. statute.
A trial court has broad authority to impose probation conditions. Code 1975, § 789A.1(2) (“the court may suspend the sentence and place the defendant on probation upon such terms as it may require”). Section 789A.1(2) was enacted in 1973, but trial courts have always had broad power to impose probation conditions. Breeden v. Nielsen, 256 Iowa 358, 127 N.W.2d 661. Despite the broad language of § 789A.1(2) and the prior case law, a court’s authority to impose conditions is not unlimited. Note, Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181; Hink, Application of Constitutional Standards of Protection to Probation, 29 U.Chi.L.Rev. 484; Note, A Trial Judge’s Freedom and Responsibility in Administering Probation, 71 Yale L.J. 553; Best & Birzon, Conditions of Probation: An Analysis, 51 Geo.L.J. 809. In a given ease the determinative question is whether the particular condition is appropriate to probation. The succeeding provisions of § 789A. 1(2) relating to rehabilitation of the defendant and protection of the community throw some light on appropriateness.
We have held that a defendant has no substantive obligation to reimburse the county. The legislature has not seen fit to alter that rule by statute except in a class of cases different from this one. Under these circumstances a reimbursement clause in a sentence is an inappropriate probation condition except in the class of cases specified by the legislature.
The legislature appears to have made a deliberate choice on the reimbursement problem by restricting the requirement of reimbursement to the defendant who, though he is able and desires counsel, refuses to retain counsel. In thus letting the Anderson rule stand in other cases, the legislature has the support of a respectable body of opinion opposing reimbursement. The American Bar Association Standards state, in Providing Defense Services, § 6.4 at 58-59 (App. Draft 1968):
Reimbursement of counsel or the organization or governmental unit providing counsel should not be required, except on the ground of fraud in obtaining the determination of eligibility.
The commentary to this standard states, “A number of jurisdictions impose an obligation upon the accused to pay a fee for the services rendered, when and if he is able. This obligation is often enforced as a condition of probation.” The commentary then discusses constitutional implications, and continues:
Apart from these constitutional objections, the practice of requiring payment from funds not available at the time of the determination of eligibility may serve to discourage the acceptance of counsel by those who are most in need and least able to appreciate the practical consequences of the imposition of such an obligation of reimbursement. Moreover, the *248amounts which can be collected under such a requirement are negligible, especially if the cost of collection is taken into account.
The author arrives at a similar conclusion in Goschka, Recoupment Statutes: Free Defense — For a Price, 53 J. Urban L. 89, 118. After listing the claimed benefits of statutory recoupment plans, he states regarding objections to them: “Some of these are directed at the unfairness of the plans, the minimal revenue raised by them, the likely increase in litigation attributable to them, and the corresponding weakening of faith and trust in the national’s legal system.” He concludes:
It is submitted that the deleterious effects outweigh the beneficial aspects of such plans. Thus, even if such plans eventually hurdle all constitutional obstacles, legislatures should not enact these statutory recoupment schemes.
See also State v. Hess, 86 Wash.2d 51, 541 P.2d 1222 (no recoupment statute, no re-coupment); ABA Standards Relating to Probation, § 3.2(f) at 50 (App. Draft 1970) (payment of costs as condition of probation unsound); Comment, 67 Mich.L.Rev. 1404, 1420 (“While one might sympathize with the court’s efforts to reduce public spending in this area, it seems at least highly unwise, if not unconstitutional, to use the probation condition for that purpose.”).
I do not understand the Attorney General to claim in the present case that defendant misrepresented his financial condition, or otherwise to charge defendant with fraud. Were such in fact the situation the county would undoubtedly be seeking to predicate liability on deceit and the case would take" on an entirely different hue.
Under § 793.18 of the Code, this court may modify the judgment or render such judgment as the district court should have done, without increasing the punishment. The court should therefore modify the judgment appealed from by striking the condition relating to reimbursing the county.
MASON and RAWLINGS, JJ., join in this dissent.