State v. Tussing, 69462

• Citation: 340 N.W.2d 257
• Decision Date: 23 November 1983
• Docket Number: No. 69462,69462
• Parties: STATE of Iowa, Appellee, v. Diane TUSSING, Appellant.
• Court: Iowa Supreme Court

Page 257

340 N.W.2d 257

STATE of Iowa, Appellee, v. Diane TUSSING, Appellant.

No. 69462.

Supreme Court of Iowa.

Nov. 23, 1983.

Charles L. Harrington, Des Moines, Appellate Defender, for appellant.

Thomas J. Miller, Atty. Gen., Lona Hansen, Asst. Atty. Gen., and Monty L. Fisher, County Atty., for appellee.

Considered by REYNOLDSON, C.J., and UHLENHOPP, HARRIS, McCORMICK, and McGIVERIN, JJ.

McCORMICK, Justice.

We must decide in this appeal whether a withdrawal slip on a savings account is a financial instrument as defined in Iowa Code section 715.1 (1981). Defendant Diane Tussing contends her conviction under section 715.6 for false use of a financial instrument must be vacated because her guilty plea lacked a factual basis. Her contention depends on whether a savings account withdrawal slip is a financial instrument. Because we hold that it is, we affirm the trial court.

Defendant did not file a motion in arrest of judgment to challenge her conviction in the district court. Her appellate attack is not barred, however, because the trial court did not warn her of that consequence. See State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980).

The record shows through the minutes of testimony attached to the trial information and defendant's statements in the plea proceeding that defendant withdrew $5.00 from the savings account of another person in a Fort Dodge bank by signing the other person's name to a withdrawal slip without authority. Defendant pled guilty to a charge of false use of a financial instrument under section 715.6, and the only question here is whether the record establishes a factual basis for the conviction. A conviction without a factual basis cannot stand. See Iowa R.Crim.P. 8(2)(b); State v. Burtlow, 299 N.W.2d 665, 668 (Iowa 1980).

Section 715.6 provides:

The use of a financial instrument with the intent to obtain fraudulently anything of value by one who knows that the instrument is not what it purports to be, or who knows that he or she is not the person nor the authorized agent of the person who, as shown on the instrument, has the right to so use the instrument, shall constitute the false use of a financial instrument. False use of a financial instrument is a class "C" felony.

Defendant now alleges her conviction lacks a factual basis because a savings account withdrawal slip is not a financial instrument for purposes of section 715.6.

"Financial instrument" is defined in section 715.1:

1. A check, bill note, draft, bond receipt, or any writing which ostensibly evidences an obligation of, or surrender of right or claim by, the person who has purportedly executed it or authorized its execution. "Writing" includes printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege, or identification.

2. Any deed, will or testamentary document, bill of sale, warehouse receipt, bill of lading, or any writing which purports to convey an interest in some property, or to be evidence of or to establish a right in some property.

3. Any letter, credit card, charge plate, or other device which is designed to identify the person tendering such device as one to whom credit may be extended, or as one to whom goods or services may be furnished and charged to...