(dissenting).
I dissent.
The majority skillfully tailors its result so as to accomplish a better practical solution concerning the availability of sentencing options under the Iowa Corrections Code than did the trial court. It may well have accomplished that purpose, but, in so doing, it emasculates the clear directives of the applicable statutory provisions. I believe this is an improper approach to statutory interpretation given our long-established practice of searching for legislative intent as shown by what the legislature said, rather than what it should or might have said. Iowa R.App.P. 14(f)(13).
The merit of the majority’s interpretation of the several statutes which are involved depends on whether it has correctly ascertained the meaning of Iowa Code section 902.9(4). That statute provides in part:
The maximum sentence for any person convicted of a felony ... if not [otherwise] prescribed by statute, ... shall be determined as follows:
1.A class “B” felon shall be confined for no more than twenty-five years.
2. An habitual offender shall be confined for no more than fifteen years.
3. A class “C” felon, not an habitual offender, shall be confined for no more than ten years, and in addition may be sentenced to a fine of not more than five thousand dollars.
4. A class “D” felon, not an habitual offender, shall be confined for no more than five years, and in addition may be sentenced to a fine of not more than one thousand dollars.
(Emphasis added). The majority concludes that the failure of the penalty provision of subparagraph 4 above to employ the disjunctive term “or” preceding the reference to imposition of a fine, and the use of the term “in addition” establishes a primary sanction of confinement which must be imposed as a prerequisite to the imposition of a fine. The majority’s conclusions concerning the interpretation of the other statutes involved in the present case all depend upon the validity of this premise.
The appeal of this contention is seriously undermined by the fact that section 902.9(4) by its express terms purports only to establish the maximum penalty for conviction of a class “D” felony. Within the context of describing the maximum penalty, the use of the disjunctive term “or” would be inappropriate. Nor does the use of the words “in addition may be sentenced to a fine,” in describing the maximum penalty provided by law, necessarily imply that a fine alone is not permissible.
' A statute which deals only with a maximum penalty is simply not an appropriate place to look for guidance in determining what lesser penalties are available to a sentencing judge. The indeterminate sentencing provision of section 902.3 precludes granting a lesser term of confinement than that specified in section 902.9, but neither the indeterminate sentence law nor section 902.9 purports to deal specifically with imposition of a fine in lieu of any sentence of imprisonment. The availability of that sentencing option has been made the subject of a special statute which clearly authorizes *740the sentence which the trial court imposed in the present case. That statute is section 909.1 which provides:
Upon a verdict or plea of guilty of any public offense for which a fine is authorized, the court may impose a fine instead of any other sentence where it appears that the fine will be adequate to deter the defendant and to discourage others from similar criminal activity.
The crime of assault while participating in a felony is a public offense for which a fine is authorized by the terms of section 902.-9(4). If section 909.1 is to be accorded its clear and unambiguous meaning, it authorizes the imposition of such fine “instead of any other sentence,” thereby squarely disposing of the issue now before the court in a manner contrary to the result adopted in the majority opinion.
The effort of the majority to avoid the clear directives of section 909.1 is even more strained than its interpretation of section 902.9. The opinion concludes that the “fine-only” sanction of section 909.1 is limited to “various categories of misdemeanors.” This conclusion is untenable in light of the fact that the statute, by its own terms, applies to “any public offense for which a fine is authorized.” A public offense is defined in Iowa Code section 701.2 as “that which is prohibited by statute and is punishable by fine or imprisonment.” This definition clearly embraces felonies as well as misdemeanors. It cannot be claimed and the majority does not claim that a fine is not authorized for the present crime under 902.9(4).
Another conclusion advanced by the majority as to applicability of section 909.1 is equally without merit. It is claimed that the trial court’s interpretation of section 909.1 would render section 909.2 surplusage. Section 909.2 may indeed be surplusage regardless of how section 909.1 is interpreted; but there is no vice in such surplusage as long as it is clear what is meant by section 909.2. That statute merely provides that “the court may impose a fine in addition to confinement where such is authorized.” This rather obvious directive has nothing to do with the issues in the present case.
The real vice in statutory interpretation in the present case is posed by the majority’s interpretation of section 909.1 which does not render it surplusage but instead renders it totally without meaning. This is contrary to well-established principles of statutory interpretation. See State v. Johnson, 216 N.W.2d 335, 337 (Iowa 1974).
Also without merit is the majority’s claim that section 909.1 is only intended to carry forward the meaning of the pre-revised statute which was Iowa Code section 789.15 (1977). That statute related to the alternative punishment of a county jail sentence where a prison term was also provided. It has no bearing on the issue now before the court. It is submitted that a correct interpretation of section 909.1 requires a recognition that it is a special statute dealing with the particular sentencing option before the court, that its meaning is clear, and that it clearly authorizes the sentence imposed by the trial court in the present case.
Another statutory provision bears directly on the issue of statutory interpretation which is presented in this case. This is section 901.5 which provides:
After receiving and examining all pertinent information, including the presen-tence investigation report, if any, the court shall consider the following sentencing options. The court shall determine which of them is authorized by law for the offense, and of the authorized sentences, which of them or which combination of them, in the discretion of the court, will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.
At the time fixed by the court for pronouncement of judgment and sentence, the court shall act accordingly:
1. If authorized by section 907.3, the court may defer judgment and sentence for an indefinite period in accordance with chapter 907.
2. If the defendant is not an habitual offender as defined by section 902.8, the *741court may pronounce judgment and impose a fine.
3. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both, and suspend the execution of the sentence or any part of it as provided in chapter 907.
4. The court may pronounce judgment and impose a fine or sentence the defendant to confinement, or both.
5. If authorized by section 907.3, the court may defer the sentence and assign the defendant to the judicial district department of correctional services.
6. The court may pronounce judgment and sentence the defendant to confinement and then reconsider the sentence as provided by section 902.4 or 903.2.
(Emphasis added).
In State v. Hildebrand, 280 N.W.2d 393, 395-97 (Iowa 1979), this statute was interpreted as conferring upon the trial courts of this state authority to impose in their discretion those authorized sentences or those combinations of authorized sentences set forth in subparagraphs 1-6 of section 901.5. Notably, section 901.5 only confers such discretion in the application of those sentencing options “authorized by law.” Whether a particular option is authorized by law must be determined by reference to section 901.5 and other statutes which deal specifically with the particular sentencing option. Hildebrand, 280 N.W.2d at 397. Standing alone, subparagraph 2 of section 901.5 authorizes the imposition of a fine without any sentence of imprisonment except in those instances where the defendant is an habitual offender. The record in the present case does not indicate that the defendant is an habitual offender. Therefore, unless this sentencing option is otherwise precluded by statute it was available to the trial court in the present case. The majority’s claim that such option is precluded by section 902.9 is untenable for the reasons previously urged. Nor is such option precluded by section 907.3. Section 907.3 specifies that the ameliorative sentencing options of deferred judgment, deferred sentence, and suspended sentence are not available upon conviction of a forcible felony. The crime for which the defendant was sentenced in the present case is a forcible felony thus making these sentencing options unavailable to the sentencing judge. In the application of the statutory sentencing scheme set forth in section 901.5, this circumstance affects only those sentencing options provided in subparagraphs 1, 3, 5, and 6 of section 901.5. Recalling our observation in Hildebrand, 280 N.W.2d at 397, that “the legislature has demonstrated its ability to express its intent to eliminate sentencing options,” I find nothing in section 907.3 which, either directly or by necessary implication, restricts the option of imposing a fine without sentence of imprisonment under subparagraph 2 of section 901.5.
The majority asserts that the trial court’s interpretation of section 909.1 would frustrate the intent of section 902.7,. relating to mandatory minimum sentences in certain cases. No claim is made by the appellee in the present appeal that section 902.7 would be thus affected, nor is that the claim of this dissent. The applicability of section 902.7 depends entirely on other statutory language not involved in the present case. That this is so is made clear by the following commentary from 4 J. Yeager & R. Carlson Iowa Practice: Criminal Law and Procedure section 1772 (1979):
Fines are authorized for class C felons, class D felons, and all misdemeanors. In pronouncing sentence, the court may impose a fine, within the limits provided, without imposing a sentence of imprisonment. For simple misdemeanors, the fine will usually be the preferred sentence. It is not clear whether the court can avoid the minimum sentence provision of § 902.7 by imposing a fine only, but there appears to be no reason why the restrictions on probation in § 907.3 will affect the court’s exercise of this option, and clearly the limitations on parole in §; 906.5 do not.
Professors Yeager and Carlson entertain doubts as to whether a court can avoid the minimum sentences of section 902.7 by sentencing a convicted felon to pay a fine. *742They unequivocally state, however, that in other cases involving class “C” or class “D” felonies, including those where section 907.3 restricts probation, a “fine-only” sentence is authorized by law. The provisions of section 902.7 are not involved in the present case. I must conclude that the sentence which the trial court imposed in the present case was authorized by law. I would affirm the trial court’s sentence.
LeGRAND and LARSON, JJ., join this dissent.