author: DeCARLO, Judge.

text:
    Billy Don CONGO v. STATE.
    8 Div. 508.
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    Rehearing Denied Jan. 26, 1982.
    Certiorari Denied April 2, 1982, Alabama Supreme Court 81-428.

      J. Thomas Conwell, Jr., of Conwell & Conwell, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen. P. Nelson, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Violation of the Alabama Uniform Controlled Substances Act; three years.

Madison County Sheriff’s Investigator Wayne Johnson testified that on August 1, 1980, he observed a 1970 Mustang automobile run off the side of the road and hit a sign. When Johnson stopped to investigate the incident he observed appellant sitting inside on the front passenger seat of the vehicle. Later, according to Johnson, appellant voluntarily got out of the vehicle. At that time, Johnson smelled alcohol on appellant, noticed appellant’s eyes were bloodshot, and saw appellant stagger or lean against the Mustang. Johnson stated that, in his opinion, appellant was intoxicated.

Officer Richard Neumeyer of the Huntsville Police Department participated in the investigation of the accident. He also gave his opinion that appellant was intoxicated. Neumeyer arrested appellant for public intoxication and took him to the city jail. There appellant was searched and seven pills containing diazepam, a controlled substance, were found hidden in his sock.

At the conclusion of the State’s case, appellant moved to exclude the evidence arguing, as he had done earlier during a motion to suppress the evidence, that the search violated his Fourth Amendment rights because it was not incident to a lawful arrest. He maintains that there was no evidence to support a charge of public intoxication and, failing that, there was no justification for the ensuing search. Appellant’s motion was overruled and he called two witnesses in his behalf, one of whom was Mike Hall, the driver of the vehicle in which appellant was a passenger.

Hall testified that neither he nor the appellant got out of the car voluntarily, that he was directed to step out by Investigator Johnson, and that the appellant was helped from the vehicle by both Johnson and Officer Neumeyer.

After all the evidence was heard, the State introduced, as justification for the arrest, Huntsville City Ordinance § 4-20 stating, “It shall be unlawful for any person to be found on any street or other public place within the city or its police jurisdiction in a state of drunkenness.” Appellant objected to the introduction of the ordinance on the grounds that (1) he had been arrested for the State law violation of public intoxication pursuant to Ala.Code § 13A-11—10 (1975), rather than for the municipal offense of drunkenness, and (2) even if he was arrested for the latter, the city ordinance was unconstitutional because it was in conflict with the State statute.

I

Appellant was neither charged with nor prosecuted for the intoxication offense. The State merely asserts that appellant’s intoxication provided the basis for a valid arrest and a subsequent valid search.

It is clear that a police officer may conduct a warrantless search of a person legally arrested in order to determine the presence of a weapon or evidence which might be easily destroyed. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 889, 20 L.Ed.2d 917 (1968); Foy v. State, Ala.Cr.App., 387 So.2d 321 (1980). In order for the accompanying search to be valid, the underlying arrest must be lawful. Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

Under the authority of § 15-10-3(1), Code of Alabama 1975, a law enforcement officer may arrest a person for “[A]ny public offense committed or a breach of the peace threatened in his presence.”

Section 13A-11-10, Code of Alabama 1975, provides the following:

“A person commits the crime of public intoxication if he appears in a public place under the influence of alcohol, narcotics or other drug to the degree that he endangers himself or another person or property, or by boisterous and offensive conduct annoys another person in his vicinity.”

The testimony of the arresting officer affirmatively showed that, although appellant was drunk, he was not endangering himself, another person or property, and he was not boisterous, offensive or annoying. Under these circumstances, the elements of the State offense of public intoxication were not met. Mere drunkenness or staggering is not sufficient under that statute. See Thompson v. State, 34 Ala.App. 608, 42 So.2d 640, cert. denied, 253 Ala. 63, 42 So.2d 642 (1949); Ala.Code § 13A-11-10 (1975) (Commentary).

While the facts of the present case do not establish that appellant committed an offense under § 13A-11-10, supra, in the presence of the officers they do indicate that appellant violated Huntsville city ordinance § 4-20. The testimony of appellant’s witnesses and of Officer Neumeyer showed, without dispute, that appellant was intoxicated. Taken in the light most favorable to the State, the evidence also established that appellant was voluntarily outside the vehicle on a public street. Thus, appellant’s intoxication in a public place constituted the offense prohibited by ordinance § 4-20 and gave Officer Neumeyer cause to arrest him. The ensuing search was therefore valid. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).

Appellant contends that the municipal ordinance is in conflict with the State statute, and therefore unconstitutional, because the local act prohibits merely being in a state of drunkenness, whereas the State offense requires some manifestation of endangering or annoying conduct in addition to intoxication.

Initially we note that appellant’s arrest under the local ordinance and his later search incident to that arrest would have been valid even if the Huntsville law were now deemed unconstitutional by this court. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). In DeFillippo, supra, the United States Supreme Court determined that an arrest under a “presumptively valid” city ordinance, which was later declared unconstitutionally vague, did not undermine a search incident to the arrest.

In our judgment, however, the Huntsville law is not in conflict with the State statute. A municipality has the authority to enact ordinances pursuant to its police powers, Ott v. Moody, 283 Ala. 288, 216 So.2d 177 (1968); Smith v. Town of Notasulga, 257 Ala. 382, 59 So.2d 674 (1952), as long as the ordinances are consistent with the general laws of the State. Ala. Const., Art. IV, § 89 (1901); Ala.Code § 11 — 45-1 (1975).

Whether an ordinance is inconsistent with the general law of the State is to be determined by whether the municipal law prohibits anything which the State law specifically permits. See Leu v. City of Mountain Brook, Ala.Cr.App., 386 So.2d 483, cert. denied, Ala., 386 So.2d 488 (1980); Atkins v. City of Tarrant City, Ala.Cr.App., 369 So.2d 322 (1979). See also Atchley v. State, Ala.Cr.App., 393 So.2d 1034 (1981); Plump v. City of Birmingham, Ala.Cr.App., 385 So.2d 1349, cert. denied, Ala., 385 So.2d 1351 (1980).

An ordinance which merely enlarges upon the provision of a statute by requiring more restrictions than the statute requires creates no conflict unless the statute limits the requirement for all cases to its own terms. Plump v. City of Birmingham, supra; Smith v. Town of Notasulga, supra; City of Birmingham v. West, 236 Ala. 434, 183 So. 421 (1938).

In the case before us, Huntsville’s ordinance does not contravene a State law; it does not, by its terms, prohibit something which the corresponding State statute affirmatively allows. Compare Atkins v. City of Tarrant City, supra (local drunk passenger ordinance inconsistent with State statute specifically exempting “passengers” from its proscription).

We therefore hold that the appellant’s arrest and search were valid. His motion to suppress the evidence was correctly overruled, and his requested charges numbered 1 through 12 dealing with public intoxication were properly refused.

II

Appellant also maintains that the State did not introduce evidence to show that diazepam is a controlled substance.

Section 20-2-20 of the Code of Alabama 1975, authorizes the State Board of Health to add to, delete, or reschedule controlled substances. The rules and regulations adopted by the Board have the force and effect of law, Ala.Code § 22-2-2(6) (1975), and are properly the subject of judicial notice by the courts of Alabama, Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975). The trial court properly took judicial notice of the fact that diazepam appears on revised Schedule IV(c) of the Alabama controlled substances list and the State was not required to introduce proof to that effect. See also Commander v. State, Ala., 374 So.2d 921 (1979); Elmore v. State, Ala., 348 So.2d 269 (1977); Gamble, McElroy’s Alabama Evidence § 482.01 (3d ed. 1977).

Ill

Appellant contends that the State did not show an unbroken chain of custody of the pills found in his sock after the arrest.

Investigator Wayne Johnson testified that on August 1, 1980, he removed a plastic bag, containing five blue and two white pills, from appellant’s sock at the Madison County Jail. The same day, Johnson turned the evidence, in the same condition, over to Officer Roger Toles of the Huntsville Police Department. Officer Toles stated that on August 5, 1980, he removed the pills from the plastic bag, placed them in a sealed and initialed envelope, and delivered the envelope to Ms. Martha Odom of the State Toxicology Lab in Huntsville.

Ms. Odom testified that she received the envelope from Toles on August 5, placed it in her locked evidence locker until August 28, 1980, and then opened it and conducted an analysis of the pills inside. Her analysis revealed the presence of diazepam. She then resealed the container and turned it over to the Huntsville property custodian for storage until use at trial.

Appellant asserts that because the Huntsville property custodian did not testify regarding the disposition of the envelope after he received it, there was a break in the chain of custody which rendered the evidence inadmissible.

The purpose of establishing a chain of custody is to show a reasonable probability that there has been no tampering with the item of evidence. Williams v. State, Ala.Cr.App., 375 So.2d 1257, cert. denied, Ala., 375 So.2d 1271 (1979). Each link in the chain of custody here, from appellant through the toxicologist, was firmly established. The State presented “ample assurance of the authority of the evidence,” Yarber v. State, Ala., 375 So.2d 1231 (1979), up to and including the time when the pills were tested. That is all that the law requires. See Taylor v. State, Ala.Cr.App., 372 So.2d 387 (1979).

Appellant’s objection, based on what happened to the pills after Ms. Odom completed her analysis, was due to be overruled since any tampering with the evidence after it had already been tested and determined to be contraband, would have been immaterial.

Oftentimes in narcotics cases the physical evidence is transformed, or even consumed, by the toxicologist’s testing procedure; therefore the State cannot be required to account for the condition of the residue. Thus, the law is concerned with tracing the integrity of the substance only up through the completion of the analysis. In the present case, any tampering with the evidence by the Huntsville property custodian, which we deem a “remote possibility,” see Mauldin v. State, Ala.Cr.App., 402 So.2d 1106 (1981), would not have affected Ms. Odom’s conclusion that the pills contained a controlled substance and would not have invalidated the chain of custody.

We have searched the record and have found no error; the judgment and conviction of the Madison Circuit Court is therefore affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Mark Jay KAUFMAN, Respondent.
    No. 60064.
    Supreme Court of Florida.
    Jan. 7, 1982.
    John F. Harkness, Jr., Executive Director, Stanley A. Spring, Staff Counsel and John A. Weiss, Bar Counsel, Tallahassee; and Robert P. Cates, Chairman of the Eighth Judicial Circuit Grievance Committee, Gainesville, for complainant.
    Rodney D. McGalliard, Gainesville, for respondent.
   PER CURIAM.

Upon complaint of The Florida Bar, this Court’s appointed referee found that respondent, Mark Jay Kaufman, a Bar member, threatened to present criminal charges solely to gain a legal advantage for his client. For this conduct, the referee recommended that respondent be found guilty of violating Code of Professional Responsibility Rule 7-105 and that he receive a public reprimand.

This Court granted respondent a fourteen-day extension of time to petition for review of the referee’s report. No petition for review was filed. We therefore approve the referee’s findings and recommendation. Publication of this opinion in the Southern Reporter shall serve as respondent’s public reprimand. Execution shall issue against respondent for the cost of these proceedings in the amount of $512.49.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN and McDONALD, JJ., concur.


text:
    THE FLORIDA BAR. In re AMENDMENT TO INTEGRATION RULE, ART. XIX (Group Legal Services).
    No. 59215.
    Supreme Court of Florida.
    Jan. 14, 1982.
    Samuel Smith, President, Miami, Linda D. Weeks, Asst. Staff Counsel, Tallahassee, O. Edgar Williams, Chairman, Integration Rule and Bylaws Committee, Fort Lauder-dale, and Warren Williams, Orlando, The Florida Bar, for petitioner.
   PER CURIAM.

The Florida Bar has petitioned this Court to amend Florida Bar Integration Rule, article XIX, by substituting a proposed new article XIX as follows:

1. The following shall be applicable to a plan of group or prepaid legal services:
a. Legal service plans that are sponsored by a church, cooperative, educational institution, credit union, or ‘employees’ organization; or any other entity that contracts directly with a lawyer(s) or law firm(s) for the provision of legal services, and the administration and marketing of such legal services is wholly conducted by the organization; or any other plan or aspect thereof that is not subject to the jurisdiction of the Department of Insurance, must be approved by the Board of Governors of The Florida Bar or its desig-nee prior to the commencement of operation.
b. The approval of The Florida Bar shall be for a period of one year, with annual renewals. Applications to renew shall be filed with the Board of Governors, at least 30 days prior to the expiration of said approval.
c. The Board of Governors may adopt such supplementary bylaws as it may deem desirable relating to the establishment, approval, operation or revocation of approval of arrangements hereunder.
2. A lawyer performing services in connection with a plan of group or prepaid legal services shall:
a. Comply with the Code of Professional Responsibility, with this Article of the Integration Rule of The Florida Bar and any Bylaws thereto.
b. Comply with any rule promulgated by the Board of Governors of The Florida Bar including but not limited to: (A) carrying malpractice insurance; and (B) requiring waiver of confidentiality in grievance matters. However, nothing herein shall be construed as authorizing any limitation on the mode or method of legal practice not otherwise required of all lawyers.

Sections 642.011-642.049, Florida Statutes, are known as the “Legal Expense Insurance Act” and authorize the certification and regulation of certain organizations which provide programs for the payment of the cost of legal services or provide legal services. Regulation of legal services plans which are sponsored by entities that contract directly with a lawyer or law firm for the provision of legal services, and in which the administration and marketing of such legal services is wholly conducted by the sponsoring organization, is retained by The Florida Bar.

In order to be consistent with the statutory scheme, The Florida Bar formulated the proposed new integration rule, article XIX, quoted above and requests that it be adopted.

Upon consideration, the petition is granted. The present article XIX of the integration rule is repealed and the above-quoted article XIX is adopted as a part of the integration rule of The Florida Bar.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR. In re PETITION TO AMEND the FLORIDA BAR CODE OF PROFESSIONAL RESPONSIBILITY, DR 2-103(D) (5) (Recommendation of Professional Employment).
    No. 59216.
    Supreme Court of Florida.
    Jan. 14, 1982.
    Samuel Smith, President, Miami, Linda D. Weeks, Asst. Staff Counsel, Tallahassee, 0. Edgar Williams, Chairman, Integration Rule and Bylaws Committee, Fort Lauder-dale, and Warren Williams, Orlando, The Florida Bar, for petitioner.
   PER CURIAM.

The Florida Bar has petitioned this Court to amend The Florida Bar Code of Professional Responsibility, DR 2-103(D)(5), by substituting the following new subsection:

5. A plan of group or prepaid legal services or any arrangement whereby individual members of a group are provided legal services or access to lawyers through a structured delivery system, provided that the plan or arrangement:
a. Permits no infringement upon the independent exercise of the professional judgment of any lawyer furnishing service thereunder;
b. Permits no violation of the privilege of confidential communications between client and lawyer;
c. Contains no provisions that would require the lawyer providing legal services thereunder to act in derogation of his professional responsibilities;
d. Has been approved by the Board of Governors of The Florida Bar and/or by the Department of Insurance of the State of Florida, as may be required.

The Code of Professional Responsibility, DR 2-103(D)(5), presently governs a lawyer’s participation in a group legal service plan. Under the present rule a lawyer may cooperate with any organization that has procured the approval of the Board of Governors of The Florida Bar to provide group legal services pursuant to Florida Bar Integration Rule, article XIX, and Florida Bar Integration Rule Bylaws, article XVIII, provided his independent professional judgment is exercised in behalf of his client without interference or control by the organization.

Sections 642.011-642.049, Florida Statutes, are known as the “Legal Expense Insurance Act." The purpose of this law is to authorize certification and regulation of certain organizations which provide programs for the payment of the costs of legal services or provide legal services. The Florida Bar retains regulation of group legal service plans which are sponsored by entities that contract directly with a lawyer or firm for the provision of legal services, and the administration and marketing is wholly conducted by the sponsoring organization. The proposed amendment quoted above would permit a lawyer to cooperate with a group legal service plan approved by the Board of Governors of The Florida Bar or by the Department of Insurance of the State of Florida. The proposed amendment would also clarify a lawyer’s obligation to cooperate only with a plan that permits no infringement upon his obligation to his client or to his professional responsibilities.

Upon consideration, the petition is granted. The present DR 2-103(D)(5), Florida Bar Code of Professional Responsibility is repealed and the above-quoted DR 2-103(D)(5) is adopted.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.


text:
    THE FLORIDA BAR. In re ARTICLE III, SECTION 6 OF the BYLAWS UNDER the INTEGRATION RULE OF THE FLORIDA BAR (Board of Governors Meetings).
    No. 59423.
    Supreme Court of Florida.
    Jan. 14, 1982.
    Dean Bunch, Tallahassee, on behalf of himself and 24 members of the Florida Bar, for petitioner.
    Samuel S. Smith, President, Miami Beach, John F. Harkness, Jr., Executive Director and James P. Hollaway, Deputy Staff Counsel, Tallahassee, and 0. Edgar Williams, Jr., Chairman, Integration Rule and Bylaws Committee, Fort Lauderdale, The Florida Bar, for respondent.
   PER CURIAM.

The Board of Governors of the Florida Bar (the Board) adopted an amendment to article III, section 6 of the bylaws as follows:

The Board of Governors shall hold meetings at such times and places as may be designated by the Board or called by the President. Any active member of The Florida Bar in good standing may attend meetings at any time except during such times as the Board shall be in executive session concerning disciplinary matters, matters involving personnel employed or to be employed by The Florida Bar, or matters involving communication between The Florida Bar and its attorneys when consulting in an attorney-client relationship. Minutes of all meetings shall be kept by the executive director. (Words underlined are additions to existing bylaw.)

The amendment was published in The Florida Bar News. Thereafter, 25 members of The Florida Bar (petitioners) filed a petition for review of the bylaw amendment.

Article VII of the Integration Rule provides that bylaws may be amended by the Board of Governors and such bylaws as amended shall be promptly published in The Florida Bar Journal or The Florida Bar News. The action of the Board in this respect may be the subject of a petition for review filed in the Supreme Court. The petition must be signed by at least 25 active members of The Florida Bar. This Court may then consider the petition for review in such manner as it deems proper and may approve, modify, or disapprove the action under review. We have jurisdiction.

Petitioners point out that from the birth of The Florida Bar the Board and this Court have recognized the importance of informed participation by the membership within the representative democracy-form government. They correctly assert that the legislature and this Court, in non-bar matters, have come to recognize the wisdom of openness in government and the informed public resulting from this course. They point to chapter 286, Florida Statutes, “Government in the Sunshine Law” and this Court’s comments on the wisdom of the Government-in-the-Sunshine concept in Town of Palm Beach v. Gradison, 296 So.2d 473 (Fla.1974). Petitioners argue that the Board should not be able to prevent members of the bar from hearing their deliberations and knowing of their decisions in (1) matters involving personnel employed or to be employed by The Florida Bar, and (2) matters involving communication between The Florida Bar and its attorneys when consulting in an attorney-client relationship.

Regarding personnel matters, the Board has but one mandated duty — -the hiring and firing of the executive director. Art. IV, § 4, Bylaws of The Florida Bar. Petitioners urge that members of the bar should be able to attend and participate in all meetings where the Board is considering the employment of an executive director. The executive director, petitioners properly say, is charged with the responsibility of employing clerical assistants as the work of the office may require and his position has a more immediate and crucial impact upon the day-to-day operation of the bar and upon its members than any other person.

Petitioners also argue that the “attorney-client relationship” provision is too broad. The Board employs attorneys as lobbyists. Petitioners say that discussion with these attorneys and actions relating to directions given them should not be in secret. Petitioners argue that the terms “personnel” and “attorney-client relationship” matters are vague and leave unbridled discretion in the Board to close the meetings. The bylaw permits no review of a decision to close a meeting because the members will never know the meeting was closed. They will not know what was discussed at the closed meeting and will not know what action is taken.

The Board responds that Florida Bar Integration Rule, article III, section 1, gives it the power and duty to fully administer the Integration Rule. It says that the proposed amendment to the bylaw does not represent something new or a change in direction as far as bar management is concerned. The amended bylaw represents nothing more than an effort to disclose the situations in which bar members can expect to find the Board in executive session.

The bylaw in question came into being following the resignation of the former executive director. Several of the applicants for the position asked that their applications be kept confidential because of their particular employment status and situation. Some members of the bar sought to discover the identity of all the applicants, suggesting that neither the Integration Rule nor the bylaws authorized “executive sessions” when the board chose an executive director. The Board, however, accommodated the applicants after it found no prohibition against executive sessions in the rule and recognized the need to protect an applicant’s relationship with his or her present employer.

The Board also included a reference in the bylaw to attorney-client type consultations. In the past, the Board says it entered executive session when its lawyers discussed contemplated pending litigation in which the bar either probably would be or was a party. The Board says that the bar’s ability to effectively litigate would be hindered or reduced if the bar’s opponents (or their counsel) sat in on these consultations.

The bylaw is consistent with the rule that bestows broad power and duty upon the Board. There is nothing in the bar’s history to support any allegation that the Board will seize upon the bylaw to deprive the membership of information about its activities.

It is presumed that reasonable men and women who have been elected to serve on the Board will continue to operate in a reasonable manner. If the Board either fails to properly govern the bar or leads the bar in a direction contrary to the views of the membership, then it is presumed the membership will elect a new governing body.

The bylaw is not inconsistent with the Integration Rule, it is a lawful exercise of the Board’s authority vested in it by The Florida Bar Integration Rule. Therefore, the bylaw should be approved.

It is so ordered.

SUNDBERG, C. J., and ADKINS, OVER-TON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.

BOYD, J., dissents.


author:
PER CURIAM.
      ALDERMAN, Justice,

text:
    In re CODE OF JUDICIAL CONDUCT (CANON 5C(2) AND CANON 7B(2)).
    No. 60181.
    Supreme Court of Florida.
    Jan. 14, 1982.
    Alfred F. Nesbitt, President, Conference of County Court Judges, Miami, Harvey Ford, Executive Secretary, Conference of County Court Judges, Fort Lauderdale and James T. Carlisle, Chairman, Code of Judicial Conduct Revision Committee Conference of County Court Judges of Florida, West Palm Beach, for petitioner.
    Samuel S. Smith, President, Miami Beach, John F. Harkness, Jr., Executive Director, James P. Hollaway, Deputy Staff Counsel, Tallahassee, and O. Edgar Williams, Jr., Fort Lauderdale, The Florida Bar, for respondent.
   PER CURIAM.

The Petition of the Conference of County Court Judges of Florida to amend Canon 5C(2) and Canon 7B(2) of the Code of Judicial Conduct is hereby denied.

It is so ordered.

SUNDBERG, C. J., and OVERTON, Mc-DONALD and EHRLICH, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion.

ADKINS and BOYD, JJ., dissent.

ALDERMAN, Justice,

concurring in part, dissenting in part.

The Conference of County Court Judges of Florida petitions this Court to amend Canon 5 C(2) and to abolish Canon 7 B(2) of the Code of Judicial Conduct. Contrary to the majority, I would grant in part the requested amendment of Canon 5 C(2). I agree, however, that there should be no change of Canon 7 B(2).

Canon 5 C(2) provides:

Subject to the requirements of subsection (1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as an officer, director, manager, advisor, or employee of any business. (Emphasis supplied.)

The county court judges seek to eliminate the underlined language, the effect of which is to prohibit judges from engaging in corporate activities. The county judges point out that under Canon 5, a judge is allowed to engage in remunerative activities and to manage investments so long as his activities do not reflect on his impartiality, interfere with his judicial duties, exploit his judicial position to gain a business advantage, or involve him in frequent transactions with lawyers or persons likely to appear before the court. They contend that the portion of Canon 5 C(2) in question unnecessarily prohibits a judge from doing through a corporation those things that he legitimately could do individually.

The Effective Date of Compliance section of the Code of Judicial Conduct qualifies this prohibition by providing that, if the demands on his time and the possibilities of conflicts of interest are not substantial, a person who held judicial office on the date the code became effective (September 30, 1973), may continue to act as an officer, director, or nonlegal advisor of a family business. If, subject to the restrictions of Canon 5, those judges who were in office prior to September 30, 1973, may act as officers, directors, or nonlegal advisors of family corporations, I see no reason why all judges should not have the same privilege. I would extend this family business exception so that all judges, regardless of when they became judges, would be able to act as an officer, director, or nonlegal advisor of a family corporation.


author: SHARP, Judge. SHARP, Judge.

text:
    Johnny D. PELFREY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1092.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 1981.
    As Corrected on Denial of Rehearing Feb. 10, 1982.
    James B. Gibson, Public Defender and Lynda Campbell, Asst. Public Defender, Daytona Beach, for appellant.
    Johnny D. Pelfrey, pro se.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   SHARP, Judge.

Pursuant to a plea bargain agreement appellant, Pelfrey, pled guilty to two charges of robbery with a firearm and one charge of attempted first degree murder. Pelfrey was sentenced to fifteen (15) years imprisonment for each armed robbery and life imprisonment for the attempted first degree murder. Pelfrey argues that the sentence of life imprisonment for attempted first degree murder is illegal. The State agrees but argues that this incorrect sentence is merely the result of a clerical error.

According to the plea agreement Pelfrey was to receive fifteen (15) years for one armed robbery, fifteen (15) years for attempted first degree murder and life imprisonment for the second armed robbery. The trial judge accepted this agreement at the hearing, but the recorded judgment sentenced Pelfrey to fifteen (15) years for each armed robbery and life imprisonment for the attempted first degree murder.

The lower court order is the recorded judgment and not the hearing transcript. Watt v. State, 323 So.2d 621 (Fla. 1st DCA 1975). The Watt court was faced with a similar situation. It concluded that there was no reason to find the. formal order was in error because of a discrepancy between the order and the statements in the transcript. This situation is distinguishable from cases where the trial judge sentences a defendant contrary to the “plea bargain” and the defendant seeks on appeal to withdraw his plea, or to reinstate the bargained for sentence. The error in this case, if any, was in Pelfrey’s favor, and we cannot direct that a more severe sentence be imposed on remand. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931); United States v. Best, 571 F.2d 484 (9th Cir. 1974); Pahud v. State, 370 So.2d 66 (Fla. 4th DCA 1979); Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972).

The fifteen (15) year sentences for the armed robberies are within the statutory limits and are affirmed. The sentence for life imprisonment for attempted first degree murder is illegal because it is excessive. We vacate the latter sentence and remand this cause to the trial court for resentencing. Pelfrey raised several other issues in this appeal, but because he pled guilty they are not appropriate for our review. Robinson v. State, 373 So.2d 898 (Fla. 1979). He shall be without prejudice to raise them by way of collateral attack, if appropriate.

AFFIRMED IN PART, AND REMANDED.

ORFINGER and COWART, JJ., concur.

ON MOTION TO SUPPLEMENT THE RECORD ON APPEAL AND ON MOTION FOR REHEARING

SHARP, Judge.

The motions to supplement the record on appeal and for a rehearing having been considered by the court, it is upon consideration,

ORDERED and ADJUDGED that the opinion in this case filed September 9, 1981 is corrected by deleting the last sentence of the first paragraph and substituting the following: The State argues that this incorrect sentence is merely the result of a clerical error.

Otherwise, the motions to supplement the record and for a rehearing are denied.

OPINION CORRECTED; MOTION TO SUPPLEMENT DENIED; REHEARING DENIED.

ORFINGER and COWART, JJ., concur.

      . §§ 782.04(l)(a), 777.04(4)(a), 775.082(3)(b), Fla.Stat. (1979).

      . Appellee seeks to supplement the record with corrections made by the trial court after the record was transmitted. The appellant, proceeding pro se, has not expressly agreed to the record corrections. The trial court is without jurisdiction to correct the transmitted record. Fla.R.App.P. 9.200(f).
      Because public confidence in the fairness of the criminal justice system requires some caution in the exercise of the Scrivener’s Error Rule, in the absence of facially obvious clerical error, we decline the opportunity to exercise our discretion and effectively expand exponentially the Scrivener’s Error Rule by applying it to both the written sentence and the transcript of the oral pronouncement of sentence.


author: HURLEY, Judge. HURLEY, J.

text:
    In re ESTATE OF Leonard SCHORR, Deceased.
    No. 79-1889.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.
    Rehearing Denied March 3, 1982.

      Eden & Rubin, Tamarac, and Joel L. Kirschbaum of Esler, Kirschbaum & Pomer-oy, Fort Lauderdale, for appellant Sadie Smolev.
    Leonard Feiner, Fort Lauderdale, for ap-pellees Jerome Schorr and Doris Johnsen.
   HURLEY, Judge.

Sadie Smolev Schorr, the alleged second wife of Leonard Schorr, challenges an order which declares that she is a tenant in common, rather than a sole owner, of certain property in Tamarac, Florida. We affirm.

Leonard Schorr married his first and only wife, Dora, in 1929. Then and afterwards, they were domiciliaries of New York State. In late August of 1970, Dora was committed to a mental hospital in New York. In 1972, while still institutionalized but not declared legally incompetent, Dora executed a special power of attorney appointing a Dominican Republic lawyer to represent her in divorce proceedings instituted in the Dominican Republic by Leonard. On February 29, 1972, the Court of First Instance of the Judicial District, Santa Domingo, Dominican Republic, decreed that Leonard and Dora Schorr were divorced. Leonard immediately returned to New York and continued to reside there for the next year.

In 1973 Leonard and appellant, Sadie Smolev Schorr, moved to Broward County, Florida where they held themselves out as husband and wife. At no time, however, did Leonard marry Sadie Smolev. Yet, in 1973 a warranty deed was executed conveying property which is the subject of this controversy from a developer to “Leonard Schorr and Sadie Schorr, his wife.” This parcel, located at 7006 N. W. 89th Avenue, Tamarac, Florida, was the Florida residence of Leonard Schorr and Sadie Smolev Schorr.

On September 10, 1975, Leonard and Sadie executed a quitclaim deed which purported to convey the residential property to themselves “as joint tenants with rights of survivorship.” Thereafter, Leonard died on October 17, 1976. Sadie then claimed and took complete possession of the property as the surviving joint tenant.

Next, Leonard’s son, Jerome, individually and as the personal representative of his father’s estate, filed a petition to declare that Leonard’s interest in the property was subject to homestead. The rationale underlying this contention was that the Dominican Republic divorce was invalid and, as a consequence, Leonard’s and Sadie’s effort to convey the property to themselves as joint tenants without obtaining Dora’s join-der in the deed, rendered the conveyance invalid. Thus, Jerome claimed that Dora and Sadie were tenants in common. The trial court concurred.

Whether the property is Sadie’s alone, as surviving joint tenant, or must be shared by Sadie and Dora as tenants in common, hinges upon Leonard’s marital status at the time of his death. As noted, the trial court found that Leonard remained married to Dora. We agree.

States are not required to give full faith and credit to divorces rendered in foreign nations. Whether a state will give force and effect to a foreign divorce decree is solely a question of comity. Parker v. Parker, 155 Fla. 635, 21 So.2d 141 (1945), cert. denied, 326 U.S. 718, 66 S.Ct. 23, 90 L.Ed. 425 (1945); Schwartz v. Schwartz, 143 So.2d 901 (Fla.2d DCA 1962). To actuate the doctrine of judicial comity a foreign judgment must partake of the elements which would support it if procured in this country. For example, the grounds relied upon must be sufficient under Florida law and the petitioning party must satisfy the jurisdictional requirements relating to domicile. Pawley v. Pawley, 46 So.2d 464 (Fla.), cert. denied, 340 U.S. 866, 71 S.Ct. 90, 95 L.Ed. 632 (1950); Kittel v. Kittel, 194 So.2d 640 (Fla.3d DCA 1967), cert. discharged, 210 So.2d 1 (Fla.1967); Annot., 13 A.L.R.3d 1419 (1967). It has long been held that Florida courts will not recognize a foreign nation’s divorce decree unless at least one of the spouses was a good faith domiciliary of the foreign nation at the time the decree was rendered. 26 Fla.Jur.2d Family Law § 798 (1981); Schwartz v. Schwartz, supra; Kittel v. Kittel, supra; accord, Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945).

In the instant case, it is clear that Leonard was not a good faith domiciliary of the Dominican Republic. His stay there lasted only six days. He returned to New York immediately after the decree was rendered and remained there for more than a year before moving to Florida. Thus, it is demonstrable that Leonard had no intention of remaining in the Dominican Republic. Accordingly, the trial court was eminently correct in refusing to honor the Dominican Republic’s decree, see Kittel v. Kittel, supra, and in concluding that Leonard remained married to Dora.

This brings us to the question whether the Florida property, which Leonard owned as a tenant in common, could be subject to homestead. We answer in the affirmative. See 29 Fla.Jur.2d Homesteads § 21 (1981). Although there must be a family for the homestead right to exist, Florida recognizes both a ‘family-in-law’ and a ‘family-in-fact.’ To determine whether either exists, one of the following two tests must be met: (1) there must be a legal duty to maintain another person because of the family relationship, or (2) there must be a continuing communal living by at least two persons in which one is recognized as the person in charge. 29 Fla.Jur.2d Homesteads §§ 25-27 (1981). Limiting ourselves to a consideration of Leonard’s status vis-a-vis Dora, it is certain that it satisfied the requirements for a family-in-law since Leonard had a legal obligation to support Dora. Leonard was under a New York court order to support Dora and the record indicates that, in fact, he did provide such support. Consequently, we hold that Leonard’s interest in the property was subject to homestead and could not be conveyed without Dora’s joinder. Art. X, § 4, para, (c), Fla.Const.

Accordingly, Leonard’s effort to quitclaim the property to himself and Sadie as joint tenants with rights of survivorship was a nullity. Thus, his one-half undivided interest passed at his death to Dora, as a life estate, with his son, Jerome, receiving a vested remainder interest. The determination of the trial court was correct and its order is affirmed.

MOORE and GLICKSTEIN, JJ., concur.

ON MOTION FOR REHEARING

HURLEY, J.

Appellant, by motion for rehearing, suggested that the trial court and this court erred by failing to apply the decisional law of the State of New York regarding principles of comity and the validity of Dominican Republic divorces in the State of New York. Before reaching the merits of this contention, we afforded appellant an opportunity to supplement the record on appeal to demonstrate that she had properly requested the trial court to take judicial notice of and apply New York law. Apparently, a court reporter was not present in the trial court and efforts to reconstruct the record have proved unavailing. Therefore, since it is appellant’s burden to provide an adequate record and to demonstrate error therefrom, the motion for rehearing is denied.

GLICKSTEIN and DELL, JJ., concur.


author: SCHWARTZ, Judge.

text:
    SOUTH FLORIDA BEVERAGE CORPORATION, Appellant, v. Efrain FIGUEREDO, et al., Appellees.
    No. 80-2172.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Rehearing Denied Feb. 9, 1982.

      Hogg, Allen, Ryce, Norton & Blue and W. Reynolds Allen and Lewis E. Shelley, Coral Gables, for appellant.
    Kanner, Brown & Lambert and Richard Kanner, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

The South Florida Beverage Corporation appeals from a non-final order, rendered after a bench trial, which held it liable to the plaintiffs, 63 of its present and former employees, for failure to make overtime compensation payments allegedly required by the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Because we find that the appellant was, as a matter of law, in full compliance with the terms of the statute, we reverse the order under review and direct the dismissal of the complaint.

South Florida does business as the Pepsi-Cola Bottlers of Miami; the plaintiffs worked for the company as route drivers between June 8, 1976 and March 2, 1979. This dispute concerns the determination of the employee-plaintiffs’ “regular rate” of pay during that period under the requirement of § 207(a)(1) of the FLSA that

no employer shall employ any of his employees ... for a workweek longer than forty hours, unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.[]

More specifically, the issue .is whether the regular rate is correctly computed by dividing each employee’s stipulated weekly salary by forty — so that, for example, the “regular rate” of a driver employed for $240.00 per week who worked forty-eight hours would be $6.00, requiring an additional $9.00 to be paid for each of the eight hours above forty, or $72.00; or by dividing the salary by the hours actually worked during the week. In the hypothetical situation this would yield a “regular rate” of $5.00 and require an additional payment of half of that for each extra hour over forty hours, or a total of $20.00. The latter method was the one actually employed by Pepsi, and accepted by the drivers and their union without complaint for virtually the whole period in question. Based, however, almost entirely upon a single clause in their collective bargaining agreement, the plaintiffs argued and the trial judge ruled that the former, or the fixed rate-fixed hours method, was required by the FLSA. Because the employees were, in fact, paid on a flat-sum-per-day-regardless-of-hours-worked basis which rendered the method of computation of overtime adopted by the parties the appropriate one under the applicable law, we hold that this conclusion was wrong.

The polestar in the determination of the “regular rate” question is the reality of the particular situation, that is, what hours and methods of pay were adopted “in actual fact” by the employer and employee. In an early and often-repeated interpretation of this provision of the FLSA, the Supreme Court so held in Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 65 S.Ct. 1242, 89 L.Ed. 1705, 1710 (1945):

The regular rate by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments. It is not an arbitrary label chosen by the parties; it is an actual fact. Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.

Accord, e.g., Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 461, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948); 149 Madison Avenue Corp. v. Asselta, 331 U.S. 199, 67 S.Ct. 1178, 91 L.Ed. 1432 (1947). In this case, the “actual facts” of the wage-and-hour circumstances of the Pepsi-Cola drivers appear with crystal clarity. Because of the wide disparities in, among other things, their daily duties and the lengths of their routes, the time required of these employees varied considerably from person to person, week to week, and day to day. The parties adopted a modus operandi to reflect and compensate for these fluctuations. Under it, a driver received a guaranteed payment of one-fifth of his designated weekly salary for each weekday he reported for work no matter how many hours he worked on that particular day. If he worked for more than forty hours during the five day workweek, the overtime required by the FLSA was determined, as has been indicated, by dividing the designated weekly salary by the hours worked during that week and adding fifty percent of the result for each of the hours over forty. The following two actual examples illustrate the process:

1. Plaintiff “A” — contractual salary of $220.00 per week.
Hours worked
Monday 8.22
Wednesday 7.12
Thursday 6.00
Friday_6.44
Actual hours 27.78
Actual pay: 4 days
X $44.00 per day (Vs of $220.00) $176.00
2. Plaintiff “B” — contractual salary of $244.00 per week.
Hours worked
Monday 8.95
Tuesday 8.20
Wednesday 9.42
Thursday 7.88
Friday_8.76
Actual hours 43.21
Actual pay: 5 days
x $ 48.80 (Vs of $244.00)
$244.00
Plus: $244.00 ■+■ 43.21 = $5.65 per hour
$ 5.65 x 'A x 3.21 overtime hours
$ 9.05
Total: $253.05

It is abundantly clear that this method of computing and paying overtime was in full accord with the requirements of § 207(a), as authoritatively implemented by the relevant regulations of the Wage and Hour Division, Employment Standards Administration of the U. S. Labor Department and applied in the controlling decisions. The situation involved here is precisely treated in 29 C.F.R. § 778.112:

If the employee is paid a flat sum for a day’s work or for doing a particular job, without regard to the number of hours worked in the day or at the job, and if he receives no other form of compensation for services, his regular rate is determined by totaling all the sums received at such day rates or job rates in the workweek and dividing by the total hours actually worked. He is then entitled to extra half-time pay at this rate for all hours worked in excess of 40 in the workweek. [e. s.]

This result is exactly the same as the one applied in 29 C.F.R. § 778.114 to the analytically identical but more common situation of a guaranteed or fixed weekly allowance for fluctuating hours:

Section 778.114 Fixed salary for fluctuating hours.
(a) An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many. Where there is a clear mutual understanding of the parties that the fixed salary is compensation (apart from overtime premiums) for the hours worked each workweek, whatever their number, rather than for working 40 hours or some other fixed weekly work period, such a salary arrangement is permitted by the Act if the amount of the salary is sufficient to provide compensation to the employee at a rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours he works is greatest, and if he receives extra compensation, in addition to such salary, for all overtime hours worked at a rate not less than one-half his regular rate of pay. Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement, [emphasis supplied][]

The cases establish that these regulations reflect and embody the appropriate judicial resolution of controversies such as this. A large number which so hold are collected in Yadav v. Coleman Oldsmobile, Inc., 538 F.2d 1206, 1207-08 (5th Cir. 1976):

The magistrate arrived at his total due figure by applying the so-called ‘fluctuating work week’ formula. See 29 C.F.R. § 778.114 (1975). This was correct and we affirm.
An employee under 29 C.F.R. § 778.114 who is ‘employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a work week, whether few or many.’ It is clear from the record in this case that Ms. Yadav understood that she was to receive a straight salary of $1,000.00 per month for whatever hours she worked. Therefore, her regular rate of pay is determined by dividing the total wage by the total hours actually worked in each particular week. Overnight Motor Transportation Co. v. Missel, 316 U.S. 572, 579-581, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942); Brennan v. Lauderdale Yacht Basin, Inc., 493 F.2d 188, 191 (5th Cir. 1974); Nunn's Battery & Electric Co. v. Goldberg, 298 F.2d 516, 519 (5th Cir. 1962); Warren-Bradshaw Drilling Co. v. Hall, 124 F.2d 42, 44 (5th Cir. 1941), aff’d, 317 U.S. 88, 63 S.Ct. 125, 87 L.Ed. 83 (1942). See also Mumbower v. Callicott, 526 F.2d 1183, 1187 (8th Cir. 1975); Brennan v. Valley Towing Co., Inc., 515 F.2d 100, 104-111 (9th Cir. 1975); Triple ‘AAA’ Co. v. Wirtz, 378 F.2d 884, 887 (10th Cir.), cert. denied, 389 U.S. 959, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967); St. John v. Brown, 38 F.Supp. 385, 389-390 (N.D.Tex.1941); 29 C.F.R. §§ 778.109, 778.325-326 (1975); cf. Wirtz v. Leon’s Auto Parts Co., 406 F.2d 1250 (5th Cir. 1969); Flores Hernandez v. Infanteria Thom McAn, Inc., 516 F.2d 1293, 1296 (1st Cir. 1975).

An application of the doctrine expressed in these authorities requires reversal here.

As has been indicated, the trial judge’s ruling was, and on this record could have been based only upon the single isolated sentence in the collective bargaining agreement that “[t]he regular work week shall be FORTY (40) HOURS consisting of five consecutive eight hour days beginning on Monday and ending on Friday.” For several reasons, however, this provision does not serve to support the decision under review.

1. First, and most significant, even an express statement in a collective bargaining agreement or other employment contract may not, as we have seen, be permitted to control the entitlement to benefits under the “regular rate” provision of the FLSA. That is a separate, purely statutory question which is determined by what the parties do, not by what they say. See generally, Barren tine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). In Bay Ridge Operating Co. v. Aaron, supra, the Court stated, in no uncertain terms:

A vigorous argument is presented for petitioners by the International Longshore-mens Association that a collectively obtained and administered agreement should be effective in determining the regular rate of pay but we think the words of and practices under the contract are the determinative factors in finding the regular rate for each individual.
As the regular rate of pay cannot be left to a declaration by the parties as to what is to be treated as the regular rate for an employee, it must be drawn from what happens under the employment contract.[]

334 U.S. at 463-64, 68 S.Ct. at 1196, 92 L.Ed. at 1516-17. Since “what happened” under this agreement conclusively shows the propriety of the employer’s overtime payments, any contrary language in the agreement is essentially irrelevant.

2. Even acknowledging that the contract is to be given some weight in determining the “actual facts” of the regular rate, see Barrentine v. Arkansas-Best Freight System, Inc., supra; Bay Ridge Operating Co. v. Aaron, supra, the language upon which the plaintiffs rely is insufficient to support the result reached below. This is shown by an application of the most elementary principles of contract construction.

(a) It is apodictic that, in determining the intention of the parties, individual terms of a contract are not to be considered in isolation, but as a whole and in relation to one another, with specific language controlling the general. Hollerbach v. U. S., 233 U.S. 165, 34 S.Ct. 553, 58 L.Ed. 898 (1914); Bystra v. Federal Land Bank of Columbia, 82 Fla. 472, 90 So. 478 (1921); 4 Williston on Contracts § 618 (3rd ed. 1961). Viewed in this light, the forty-hour provision simply does not mean — or even say— what the court held it did. Indeed, it does not even speak to the real issue in the case — the “regular rate” of the drivers. Instead, it provides only that the “regular work week” is forty hours, and may thus properly be viewed as merely declaratory of and meaninglessly redundant to what the FLSA already provides insofar as overtime pay is concerned. More important, two paragraphs later, the parties directly addressed the “regular rate”-overtime question. Compare Mumbower v. Callicott, 526 F.2d 1183, 1188 (8th Cir. 1975). They did so by providing, first, that it was to be governed by the “procedure outlined in .. . Section 778.114” — the fluctuating hours standard which has already been quoted— and subsequently, see note 6, supra, by the payment of “straight time” for overtime hours. Both methods are totally inconsistent with the position adopted below, that the parties agreed to pay the designated salary for a fixed forty-hour workweek, so that the “regular rate” was simply the salary divided by forty. Even on the face of the contract alone, there is therefore nothing to support that conclusion.

(b) The proper resolution of any inconsistency which may arguendo exist in this agreement, like any other, is best determined by the manner in which the parties actually perform under it. Brooklyn Life Ins. Co. of New York v. Dutcher, 95 U.S. 269, 24 L.Ed. 410 (1877); Lalow v. Codomo, 101 So.2d 390, 393 (Fla.1958); 4 Williston, supra, § 623. As to this important factor, there is no doubt that everyone, without issue, dispute, or complaint, treated the agreement as one which called for the overtime specifically agreed to, not the one required by the ex post facto application of the “forty hour work week” clause.

(c) Finally, subsequent to the time frame involved here — during which there was one amendment to the overtime practice, see note 6, supra — the employer and union, after intensive collective bargaining, further changed the contract to a straight hourly rate. This resulted in the same consequences as to overtime pay which the trial court’s decision would have applied to the previous period. It may be presumed, however, that an amendment to an agreement is designed to serve some useful function, and its existence is strong evidence, therefore, that the contract was changed from what the parties believed and intended was provided before. See Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457, 463 (1930); State ex rel. Triay v. Burr, 79 Fla. 290, 84 So. 61, 74 (1920).

The determination of the “regular rate” of pay is, as the Supreme Court has recently reiterated, a mixed question of law and fact. Barrentine v. Arkansas-Best Freight System, Inc., supra, 450 U.S. at 743, 101 S.Ct. at 1446, 67 L.Ed.2d at 655. For the reasons we have outlined, an application of the facts shown by the record to the controlling law demonstrates the incorrectness of the order below. See cases collected, 51B C.J.S. Labor Relations § 1310 (1968). It is therefore reversed and the cause remanded with directions to dismiss the complaint.

Reversed.

      . Since the order, which referred the calculation of damages to a master, determined the issue of liability in favor of parties seeking affirmative relief, we have jurisdiction under Fla.R.App.P. 9.130(a)(3)(C)(iv).

      . The appellant challenges the trial court’s finding that it was subject to the FLSA. The basis of our decision permits us to assume without directly deciding the correctness of this conclusion. See, 29 U.S.C. § 203(s); Roland Electric Co. v. Walling, 326 U.S. 657, 66 S.Ct. 413, 90 L.Ed. 383 (1946); D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 66 S.Ct. 925, 90 L.Ed. 1114 (1946); Wirtz v. Standard Container and Paper Co., 389 F.2d 134 (5th Cir. 1967); Wirtz v. Soft Drinks of Shreveport, Inc., 336 F.Supp. 950 (W.D.La.1971).

      . See note 6, infra.

      . The relevant provisions of the agreement between the appellant and the United Steelworkers local which represented the appellees are as follows:
      ARTICLE VI
      HOURS OF WORK AND OVERTIME Section 1.

        The regular work week shall be FORTY (40) HOURS consisting of five consecutive eight hour days beginning on Monday and ending on Friday. The regular starting time for employees covered hereunder shall be between 6:00 a. m. and 7:00 a. m. (with the exception of special events employees, whose regular starting time shall be 7:30 a.m.).
      ******

        Section 3.

      Overtime shall be payable as follows:
      Salaried pre-sell drivers shall receive, for all hours worked in excess of forty (40) in a given workweek, overtime pay in accordance with the procedure outlined in Interpretive Bulletin Section 778.114 of the Wage and Hour Administrator, entitled “Fixed Salary for Fluctuating Hours.”
      All other employees covered hereunder will be compensated as provided elsewhere in this Agreement.
      The emphasized clause is the one relied upon by the appellees and the lower court.

      .Soon after the beginning of the pertinent period, the union and Pepsi also agreed to pay a driver one-fifth of his weekly salary for each Saturday he reported. The number of hours worked on Saturday was, by agreement, not tallied or computed in determining the total workweek for overtime purposes, apparently because it was thought that the full day’s allowance for these hours was more than sufficient to compensate for any time-and-a-half over 40 hours the Saturday time would have required. Although they so argued below, the appellees did not carry their required burden to show, whether by their own testimony, cf. Mitchell v. Mitchell Truck Line, Inc., 286 F.2d 721 (5th Cir. 1961) or otherwise, that this was not the case and that they were therefore entitled to any additional compensation for Saturday work. Hodgson v. A. W. Crossley, Inc., 365 F.Supp. 1131 (S.D.N.Y.1973). See also, 29 U.S.C. § 207(e)(6) (premium Saturday pay not included in “regular rate.”)

      . In 1978, the union and the employer agreed to pay “straight time,” or ‘Ao of the agreed weekly wage, for every hour over 40 worked during weekdays. In the $240.00 per week-48 hours example in the text, this resulted in the payment of $40.00 additional for overtime. While this was less than the amount the appellees argued was required under the 40-hour, fixed hours-fixed salary method the trial court found was appropriate, it was more than we find infra was required by the FLSA under the “actual facts.”

      . The illustrations contained in subsection (b) are exactly equivalent to what occurred at Pepsi-Cola during the pertinent time:
      The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose overtime work is never in excess of 50 hours in a workweek, and whose salary of $80 a week is paid with the understanding that it constitutes his compensation, except for overtime premiums, for whatever hours are worked in the workweek. If during the course of 4 weeks this employee works 40, 44, 50, and 48 hours, his regular hourly rate of pay in each of these weeks is approximately $2, $1.82, $1.60, and $1.67, respectively. Since the employee has already received straight-time compensation on a salary basis for all hours worked, only additional half-time pay is due. For the first week the employee is entitled to be paid $80; for the second week $83.64 ($80 plus 4 hours at 91 cents, or 40 hours at $1.82 plus 4 hours at $2.73); for the third week $88 ($80 plus 10 hours at 80 cents, or 40 hours at $1.60 plus 10 hours at $2.40); for the fourth week approximately $86.72 ($80 plus 8 hours at 84 cents, or 40 hours at $1.67 plus 8 hours at $2.51).

      . See note 4, supra.

      . The plaintiffs themselves have sub silentió recognized the distinctiveness of the issues. Although many of them are the union leaders who were active in negotiating the contract, they do not claim in this action — and in fact have never contended, by invoking its arbitration provisions or otherwise — that the appellant has not paid the wages required by the terms of the collective bargaining agreement itself.

      . It is true that the “actual facts” test was applied in Aaron, as in most, if not all, other instances to increase the return to employees above the amount due under what was designated as the “regular rate” in the contract. We are unwilling to believe, however, that the doctrine is not a neutral principle which must be applied even though, as here, it may have the opposite effect.

      . This view is strengthened by the fact that, soon after the contract was executed, it was agreed in a supplementary letter that, after the first six weeks, “the company will not schedule an employee to work a regular work week in excess of fifty (50) hours.” [e. s.]

      . See note 4, supra.

      . We need not discuss the other issues presented by the appellant.


author: BOOTH, Judge. ROBERT P. SMITH, Jr., Chief Judge,

text:
    JIMANI CORPORATION, Wayne Truitt, and Phillis Truitt, Appellants, v. S.L.T. WAREHOUSE COMPANY, Metro Bank of Dallas, Laquinta Motor Inns, Inc., and Paul H. Morgan, Jr., Appellees.
    No. SS-471.
    District Court of Appeal of Florida, First District.
    Jan. 5, 1982.
    Rehearing Denied Feb. 11, 1982.

      L. Ralph Smith, Jr. and Thomas J. Maida, of Peeples, Earl, Smith, Moore & Blank, Tallahassee, for appellants.
    William L. Gary, of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appel-lee S.L.T. Warehouse Company.
    Brian S. Duffy and J. Lawrence Johnston, of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellee Metro Bank of Dallas.
    Thomas J. Guilday, of Akerman, Senter-fitt & Edison, Orlando, for appellee, La-Quinta Motor Inns, Inc.
    James D. Beasley, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee Paul H. Morgan, Jr.
   BOOTH, Judge.

This cause is before us on appeal by Jima-ni Corporation [Jimani] and its stockholders, Wayne and Phillis Truitt [Truitts], and on cross-appeals by Metro Bank of Dallas [Metro] and LaQuinta Motor Inns, Inc. [La-Quinta] from a final judgment and certain post-judgment orders which determined all issues except the counterclaim of Jimani against Metro and S.L.T. Warehouse Company [SLT], and the cross-claim of Jimani against LaQuinta, which remain to be tried by a jury.

SLT filed suit in interpleader against Jimani and Wayne Truitt to determine the right to possession of goods located in a warehouse in Tallahassee, Florida, and for enforcement of a warehouseman’s lien. Metro intervened, filing a complaint to enforce its security interest in the same goods. LaQuinta and Metro were added as parties defendant by SLT. LaQuinta counterclaimed against SLT and Jimani.

The property which is the subject matter of these competing claims consists of prefabricated bathroom modules weighing 4,000 pounds each and manufactured by Jimani pursuant to a contract with LaQuin-ta. The LaQuinta contract called for Jima-ni to construct 61'/2 modules to be used in LaQuinta’s motel in Tallahassee, Florida.

SLT agreed to set up a field warehouse operation in Tallahassee for Jimani. Pursuant thereto, Jimani leased a warehouse in Tallahassee as a manufacturing site for the LaQuinta modules. A portion of the warehouse was intended to be subleased to SLT for its operation as warehouseman having charge of modules as they were completed.

Metro claimed a security interest in the modules based on its extension of a $250,000 line of credit to Jimani and Jimani’s assignment as collateral of “[a]ll of Debtor’s accounts receivable and all contract rights ... and returned, refused and repossessed goods.”

LaQuinta and Jimani agreed that Jimani would place completed modules in a bonded warehouse in Tallahassee where they could be inspected by LaQuinta and that, upon delivery to LaQuinta of a warehouse receipt and proof of insurance, LaQuinta would pay the contract price for the modules covered by the receipt. This arrangement accommodated LaQuinta because it had insufficient locations at the construction site to accept delivery of all the modules. The arrangement was also beneficial to Jimani, as it was fast approaching the maximum limit of its line of credit with Metro and could apply the payment for modules, as completed, to its outstanding balance.

On May 25,1978, Jimani notified LaQuin-ta that 41 units were completed and would be shortly available to LaQuinta. Jimani made specific inquiry as to when payment would be made for these units. On June 8, 1978, LaQuinta confirmed that it would pay upon its receipt of a warehouse receipt. On June 21, 1978, SLT issued to Jimani a nonnegotiable warehouse receipt covering the 41 completed modules which, at that time, had already been inspected by LaQuinta. Invoice and warehouse receipt, mailed to LaQuinta June 28,1978, were stamped by a LaQuinta employee as “received” July 6, 1978, but payment due was not forthcoming.

In the latter part of July, 1978, Jimani verbally notified SLT not to release the modules to LaQuinta because the agreed payment had not been made. In addition, Jimani requested cancellation of the warehouse arrangement.

SLT advised LaQuinta that the warehouse receipt was invalid because it had been issued at a time when SLT had no sublease on the warehouse premises and requested LaQuinta to return the receipt to SLT. LaQuinta then advised that it would not pay the contract price for the modules covered by the receipt. By letter dated August 7, 1978, LaQuinta told SLT that it was retaining the warehouse receipt and would look to SLT for performance under the terms of the receipt.

On November 15, 1978, Metro advised SLT that it claimed a security interest in the modules and would hold SLT liable for preservation of the property, and, by telegram of November 16, 1978, stated:

Confirming various conversations Metro Bank of Dallas has foreclosed security interest and now owns all items located in SLT Warehouse in Tallahassee Florida. Will arrange to pick up material as soon as possible. Expect you to preserve material.

Thereafter, SLT filed suit in the lower court and obtained a temporary injunction to prevent removal of the modules from the warehouse.

In the final judgment sought to be reviewed, the trial court determined that there was an outstanding valid warehouse receipt enforceable in the hands of LaQuin-ta covering specified goods stored in a warehouse under the control of SLT and that SLT had a valid warehouseman’s lien in the amount of $24,333.99. The court held that SLT’s lien was superior to the claims of Metro and all other parties, and authorized SLT to sell the 41 completed bathroom modules free and clear of all liens and encumbrances, including that of Metro.

The trial court further determined that LaQuinta, as holder of the warehouse receipt issued by SLT, had the right to compel SLT to hold the 41 modules for the benefit of LaQuinta. Finally, the court held:

[Ejach of the parties described herein bear some responsibility for causing the events which led to the institution of these proceedings, including conduct which initiated or precipitated the cause of action and which prevented a timely resolution prior to commencement of this action. In this regard, the Court finds that the parties contributed to the events necessitating this litigation in the following percentages:
Metro Bank of Dallas 15%
La Quinta Motor Inns, Inc. 55%
Jimani Corporation 20%
S.L.T. Warehouse Company 10%

Accordingly, judgment was entered in favor of SLT against the other parties in the following amounts: (a) Metro, $3,650.00; (b) LaQuinta, $13,383.69; and (c) Jimani, $4,866.80.

After entry of the final judgment, Metro applied to the court and was given the right to discharge SLT’s lien by payment of $28,-833.99, a figure which included charges subsequent to the judgment, and to take possession of the modules in foreclosure of its lien. Metro discharged the SLT lien and took possession of the modules in October of 1979.

On appeal, the parties have raised a number of issues which require consideration of the principles governing field warehousing, the seller’s right to stop delivery, the warehouseman’s lien, interpleader, attorney fees and the attorney-client privilege.

Field Warehousing

Field Warehousing is typically used by manufacturers and sellers as a means of obtaining financing from lending institutions by pledging as collateral warehouse receipts on products and goods which remain on the manufacturer’s or seller’s premises. In the usual arrangement, the seller contracts with a licensed warehouseman to assume control of goods and to issue a nonnegotiable warehouse receipt which can be pledged as security. It is not unusual for an employee of the seller to be loaned to, and employed by, the warehouseman to take charge of the goods. Minimum requirements must be met, however, so that the warehouseman has control independent of the seller and is, therefore, legally in possession of the goods.

An important distinction between a typical field warehousing arrangement and the arrangement here is that the warehouse receipt was not pledged to Metro Bank as collateral on its loan to Jimani. Instead, accounts receivable arising from the sale of the goods by Jimani to LaQuinta were pledged.

Right to Stop Delivery

The first issue raised by the parties is whether Jimani had the right to cancel the warehouse arrangement in the latter part of July, 1978.

Due to the nature of a field warehouse arrangement, as previously discussed, cancellation of the field warehouse is the equivalent of a stop-delivery order. The seller’s right to issue a stop-delivery order depends upon: (1) the Uniform Commercial Code [UCC] as adopted in Florida; and (2) the agreement between the parties.

Under the UCC, a negotiable warehouse receipt is a document of title which symbolizes the goods themselves, whereas a nonnegotiable receipt does not. The result of this distinction is that the warehouseman is entitled to require relinquishment of the negotiable instrument at the time he turns over possession of the goods and, indeed, must do so to protect himself from liability. In the case of a nonnegotiable receipt, the seller may require the warehouseman to stop delivery as against the buyer so long as there has not been an actual delivery of the goods or an acknowledgment or attornment by the warehouseman to the buyer. This is true even when the buyer still has the nonnegotiable receipt originally issued by the warehouseman or refuses to give it up.

Florida Statutes, Sections 672.705(2)(b) and (3)(c), provide that, after issuance of a nonnegotiable warehouse receipt, a seller may stop delivery and cut off the right of a buyer to obtain possession of the goods pri- or to “acknowledgment to the buyer by any bailee of the goods ... that the bailee holds the goods for the buyer.” This acknowledgment by the warehouseman to the holder of the receipt has traditionally been referred to as “attornment.” It operates to cut off the seller’s right to stop delivery to the holder of a nonnegotiable receipt. Pri- or to attornment, the seller may stop delivery.

In the instant case, LaQuinta contends that SLT’s letter of June 28, 1978, was an attornment which cut off the right of Jima-ni to cancel the warehouse arrangement. The trial court made no specific finding on this point; however, the letter referred to relates to the setting up of a warehouse operation and seeks a reply from LaQuinta as to whether releasing arrangements used in a previous warehouse would apply. No mention is made of any goods being held for the account of LaQuinta. . The letter is insufficient to perfect a right of possession in LaQuinta (buyer) cutting off the seller’s right to stop delivery and is not an attornment. Thus, Jimani had the right to demand cancellation of the warehouse, and SLT was required by the provisions of the UCC to relinquish control of the premises unless the agreement between the parties provided otherwise.

The agreement, entitled “Collateral Control Agreement,” provides that Jimani (seller) may not terminate or cancel the warehouse arrangement if there is an outstanding warehouse receipt. This provision of the agreement is not specifically relied on by SLT; however, we address the issue since it may bear on the future litigation between the parties and hold that the agreement did not preclude Jimani’s cancellation of the warehouse.

The Collateral Control Agreement, executed on a standard form furnished by SLT, further requires Jimani to lease necessary premises and gives SLT the right at any time to cancel the agreement if Jimani “does not execute a lease ... upon storage space which is satisfactory and suitable to SLT and which will entitle SLT to uninterrupted and exclusive possession of the building.” After execution of the agreement, Jimani leased the required warehouse and obtained consent to sublease from the landlord. However, the sublease contemplated by the agreement was not executed at the time a warehouse receipt covering the 41 modules was issued. At the end of July, 1978, when Jimani sought to cancel the warehouse arrangement with SLT, the sublease still had not been executed. SLT, an expert in the area of field warehousing, knew that, in addition to its failure to obtain a lease on the premises, it failed to meet other requirements for a valid warehousing operation. Specifically, there was no separation or designation of modules covered by the warehouse receipt from modules not covered by the receipt and no setting aside or roping off of any specific area within the warehouse to be under the exclusive control of SLT. These deficiencies existed even though the Collateral Control Agreement gave SLT the right to demand: a sublease; necessary setting apart of inventory; enclosures; signs; exclusive areas for SLT’s use; and expenses needed for preservation and possession of goods covered by the warehouse receipt. Since the warehouse arrangement was incomplete, it was terminable at will by Jimani on payment of any outstanding warehouse charges.

At the time Jimani sought to cancel, all warehouse charges had been paid, and there were no intervening rights of third parties. The warehouseman had no right under the UCC or the agreement between the parties to refuse cancellation of the warehouse. The document issued by SLT, entitled “Nonnegotiable Warehouse Receipt,” may have had that legal significance in the hands of a buyer who obtained either delivery of the goods or an attornment by the warehouseman prior to the seller’s cancellation order. However, as between the immediate parties to the Collateral Control Agreement, the warehouse arrangement was incomplete and legally insufficient to transfer control to SLT of the goods or to form a basis for SLT’s refusal to cancel the warehouse. Since no rights of the buyer (LaQuinta) to the goods were affected by deficiencies in the warehousing arrangement, those deficiencies form no defense for the buyer’s (LaQuinta) breach, if any, of the contract with the seller (Jimani).

Warehouseman's Lien

SLT has no lien for warehouse charges. Under the UCC, a warehouseman has a lien on goods in its possession for charges incurred in connection with warehousing the goods. The Code provides, however, that the warehouseman’s lien is lost if there is an unjustified refusal to relinquish possession of the goods. The warehouseman’s refusal to cancel the warehouse upon request by Jimani cannot be justified either under the Code or by the terms of the agreement between Jimani and LaQuinta, as previously pointed out. Loss of the right to claim a lien against the goods for warehouse charges does not, however, prevent SLT from making a claim for those charges.

Warehouse charges that accrued prior to the date the court determines Metro first asserted its lien on the contents of the warehouse are to be paid by SLT and La-Quinta in such proportions as the court determines. Charges that accrued after the date Metro asserted its lien are the responsibility of SLT, LaQuinta and Metro Bank in such proportions as the trial court shall order. No basis appears for assessing any portion of the warehouse charges against Jimani because, as of the date of Jimani’s demand for termination of the warehouse arrangement, no charges were due from Jimani to SLT, and Jimani was entitled to terminate the warehouse at that time.

Metro Bank’s Security Interest

The security agreement between Metro Bank and Jimani dated February 15, 1978, grants to Metro a security interest in the following described collateral:

All of Debtor’s accounts receivable and all contract rights now existing or hereafter arising and returned, refused and repossessed goods, either now owned or in existence or hereafter acquired or accruing to Debtor, [emphasis supplied]

Pursuant to the above provision, Metro claimed a security interest in the contents of the warehouse, including both completed and incompleted modules located therein. The basis specifically for Metro’s claim is that the goods in question were “refused” goods. We note that the accounts receivable which arose on completion of the modules were pledged to Metro pursuant to this provision, but the above-quoted provision does not cover “inventory.” Thus, Metro’s security interest extends to the accounts receivable and contract rights against LaQuinta but not to Jimani’s inventory.

We hold that the description of collateral in the security agreement relied on and underscored in the above-quoted provision is insufficient to allow enforcement of Metro’s lien against the modules. Florida Statutes, Section 679.203(lXb); American Restaurant Supply Company v. Wilson, 371 So.2d 489 (Fla. 1st DCA 1979). A description of collateral is sufficient when the agreement covers all of a certain type of asset, Barnett Bank of Pensacola v. Fletcher, 290 So.2d 533 (Fla. 1st DCA 1974), or, where less than all of a type of collateral is to be encumbered, if the agreement specifies the encumbered portion or items, as stated in American Restaurant Supply, 371 So.2d at 490:

The security agreement under consideration describes the collateral as: “Food service equipment and supplies delivered to San Marco Inn at St. Marks, Florida.” Many courts have held that a description of collateral is sufficient when the agreement covers all of a certain type or types of assets, [citations omitted] However, the agreement before us does not cover all of the food service equipment and supplies located at San Marco Inn or owned by the debtor. The agreement attempts to cover some food service equipment and supplies, but the description does not do its assigned job of making possible the identification of the equipment and supplies in which American claims a security interest.

The foregoing rule applies to preclude enforcement of a security interest against the debtor or third parties where the security agreement description of collateral is insufficient. American Restaurant Supply, 371 So.2d at 489.

Further, we note that the goods in question were not “refused goods” at the time Metro filed suit, and LaQuinta continued to claim a right to the goods and to retain possession of the warehouse receipt, giving colorable validity to its claim and preventing Jimani from exercising rights of ownership. It appears that LaQuinta, in retaining possession of the document in question, sought to preserve its position in the on-going dispute with Jimani which extended to transactions not directly involved in this, litigation and to maintain its right to claim the modules at some time when it was more feasible to pay for them or, perhaps, when they would be sold for a lower price. La-Quinta did not refuse the goods, and the bank’s security interest did. not attach. This is not to say, however, that the bank is unprotected. The pledge to Metro of “all accounts receivable and all contract rights” is a sufficient description and includes receivables and contract rights arising in the transaction between LaQuinta and Jimani.

Metro Bank foreclosed its lien and took possession of the entire contents of the warehouse, including the completed and in-completed modules. The record before us does not disclose facts concerning the foreclosure sale, The remedy of the debtor for improper foreclosure of lien has not been addressed in the briefs here and can best be determined in connection with the suit against Metro which remains to be tried, with appropriate amendments, if any, to pleadings for this purpose.

Interpleader and Attorney Fees

SLT filed suit in interpleader in this case seeking to determine who was entitled to the rightful possession of the modules. Had that been all that SLT sought to obtain in this litigation, SLT would have the right to claim attorney fees. However, SLT also claimed a lien against the goods in question, making it an “interested” party in the subject of the litigation, to-wit: the modules. The UCC recognizes the right of the warehouseman, who is confronted with conflicting claims for goods within its possession, to file suit in interpleader as a disinterested stakeholder to determine the proper party entitled to delivery of the goods. The Code does not, however, change the basic requirements of the law of interpleader as it exists in Florida so as to allow an award of attorney fees to a party who is seeking to enforce its own claim against the interpleaded goods. SLT was not a disinterested stakeholder. Further, SLT contributed substantially to the conflict, as found by the trial court, and, on that basis as well, is not entitled to fees. Accordingly, that portion of the charges denominated attorney fees should not be allowed.

After subtraction of attorney fees, the remaining charges are imposed, as previously stated, on SLT, LaQuinta and Metro for the time periods indicated and amounts to be ordered by the trial court. Metro has paid all charges originally claimed by SLT, including attorney fees, and it is entitled to appropriate recovery from SLT and La-Quinta.

Attorney-Client Privilege

In a post-judgment order, the trial court determined that the attorney-client privilege precluded inquiry by Jimani into correspondence between counsel for La-Quinta and Metro Bank in connection with Jimani’s allegation of conspiracy. We have reviewed the record in this regard and find no abuse of discretion on the part of the trial court in making what is essentially a factual determination and upholding the attorney-client privilege.

Accordingly, the judgment and orders sought to be reviewed are affirmed in part and reversed in part and the cause remanded for entry of a judgment in accordance herewith.

SHAW, J., concurs.

ROBERT P. SMITH, Jr., C. J., dissents with written opinion.

ROBERT P. SMITH, Jr., Chief Judge,

dissenting:

I would entirely affirm the trial court’s judgment.

      . LaQuinta’s counterclaim against SLT for refusing to deliver modules covered by warehouse receipt filed January 1, 1979, was dismissed, on motion of LaQuinta, August 7, 1979. LaQuinta’s counterclaim against Jimani was voluntarily dismissed May 15, 1979.

      . McGuire, “The Impact of the UCC on Field Warehousing,” 6 UCC L.J. 267, 271-72 (Winter 1974); Comment, 69 Yale L.J. 663, 664 (1960), reprinted in Mentschikoff, Commercial Transactions (1970):
      [a]n independent warehouse company acts as the custodian of inventory against which a businessman, usually a manufacturer, seeks to secure credit. From the warehouseman’s standpoint, the operation is in the “field,” although the goods do not leave the borrower’s premises. The items to be “warehoused” are segregated from the rest of the borrower’s stock, in an area leased for a nominal sum to the warehouse company and demarcated with signs and physical barriers. The borrower’s usual clerk is employed by the warehouse company to exercise control over the goods on its behalf. As items of

        inventory are deposited, warehouse receipts are issued against them.

        See, generally, Lawrence Warehouse Company v. McKee, 301 F.2d 4, 6 (5th Cir. 1962).

        .Whitney National Bank of New Orleans v. Sandoz, 362 F.2d 605, 607 (5th Cir. 1966):
      For warehouse receipts issued by a field warehouseman to have validity they must be issued by a bona fide, independent warehouseman. The borrower cannot be his own warehouseman and receipts issued by one who is a warehouseman in name only can have no validity. The portion of the borrower’s property set aside as a warehouse must be under the exclusive control of the warehouseman. The warehoused goods must be in the exclusive possession of the warehouseman, with the borrower excluded as well as others. There must be adequate markings of the warehouse area and of the warehoused goods. The goods must be so stored and so described in the warehouse receipts that there can be an identification of specific goods to match particular descriptions.

      . Carter, “Acquisition and Loss of Rights of Buyers and Sellers to Goods Under the UCC,” 6 B.C.Ind. & Com.L.Rev. 169 (1964); Riegert and Braucher, Documents of Title §§ 2.4, 5.3.4 (1978). See, e.g., Southeast Foods, Inc. v. Penguin Frozen Foods, 203 So.2d 39 (Fla. 3d DCA 1967), cert. denied, 210 So.2d 226 (Fla.1968) (warehouseman properly complied with seller’s stop delivery order even without surrender of nonnegotiable receipt).

      . See Carter, “Acquisition and Loss of Rights of Buyers and Sellers to Goods Under the UCC,” 6 B.C.Ind. & Com.L.Rev. 169, 173-74 (1964).

      . There was no response from LaQuinta to this letter.

      . Collateral Control Agreement:
      [N]o ... notice of intention to terminate given by Customer to SLT shall be effective unless all charges and expenses ... shall have been paid in full to SLT by Customer and all outstanding Warehouse Receipts ... shall have been cancelled or release order shall have been delivered to SLT from Holder for the goods and merchandise covered by all outstanding Warehouse Receipts.

      . Collateral Control Agreement:
      SLT shall not be obligated to furnish field warehouse services under the terms of this Agreement and this Agreement may be can-celled by SLT at any time at its option without prior notice if Customer [Jimani] does not execute a lease or leases upon storage space which is satisfactory and suitable to SLT and which will entitle SLT to uninterrupted and exclusive possession of the buildings, rooms and/or premises so demised.

      .Jimani had access to all areas of the warehouse until September, 1978, when SLT changed the locks and denied Jimani all access to the warehouse and its contents, including the modules and materials not covered by the warehouse receipt.

      . Florida Statutes, Section 677.209.

      . Florida Statutes, Section 677.209(4), provides, in pertinent part: “A warehouseman loses his lien on any goods ... which he unjustifiably refuses to deliver.”

      . Florida Statutes, Section 677.603.

      . Kurz v. New York Life Insurance Company, 168 So.2d 564 (Fla. 1st DCA 1964) (to be entitled to attorney fees in interpleader action, plaintiff must demonstrate total disinterest in outcome of suit other than in bringing conflicting claims to court); Ellison v. Riddle, 166 So.2d 840 (Fla. 2d DCA 1964) (to be entitled to attorney fees in interpleader action, plaintiff must demonstrate total disinterest in stake he holds and that he did nothing to cause conflicting claims). Compare, National Life Insurance Company v. Southeast First National Bank, 361 So.2d 432 (Fla. 4th DCA 1978) (totally disinterested insurers who did nothing to cause conflicting claims could recover fees in interpleader action).

      . 81 Am.Jur.2d, Witnesses 222 and cases cited therein.


author: DOWNEY, Judge. ANSTEAD, Judge,

text:
    STATE of Florida, Appellant, v. Bruce McGREGOR, Appellee.
    No. 81-661.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Rehearing Denied March 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.

      Douglas N. Duncan of Foley & Colton, P.A., West Palm Beach, for appellee.
   DOWNEY, Judge.

By a direct filed information the State charged McGregor with two counts of accepting unauthorized pecuniary benefit relative to his duties as an assistant building inspector of the City of Jupiter, Florida. The information alleged that McGregor requested, solicited, or accepted pecuniary benefit not authorized by law between January 1, 1980, and September 1, 1980.

During the preliminary stages of the proceeding McGregor requested, among other things, a statement of particulars. The State filed a form response which did not contain a statement of particulars. Thereafter, the trial court granted McGregor’s motion for a more definite statement of particulars. The State responded, stating that the alleged offense occurred between the first day of January 1980 and the first day of September 1980 at or in the vicinity of Jupiter. Thus, the only new information contained in the better statement of particulars was that the alleged crime was committed in the vicinity of Jupiter. Counsel for McGregor then wrote the prosecutor handling the case, pointing out that the better statement of particulars did not comply with the court order. Receiving nothing further from the State, McGregor filed a motion to impose sanctions. The matter was set for hearing, but the prosecutor handling the case did not appear because he was involved in the trial of another case. In his stead he sent another assistant from his office who was totally unfamiliar with the case. At the court’s suggestion the latter prosecutor returned to his office to obtain the case filed. Upon his return, he advised the court that he had seen the prosecutor who was handling.the case and the latter advised him that the State had alleged the dates in the statement of particulars with as much specificity as possible. At the end of the hearing the the court granted McGregor’s motion for sanctions and dismissed the information.

Apparently the trial judge felt the State should have spent more time investigating the case so as to furnish McGregor with more information regarding the crucial dates on which the crime was allegedly committed. Be that as it may, it appears to us the sanction of dismissal was too severe for the alleged default.

Charging a public official with what amounts to bribery is no routine matter and such charges should not be dismissed except for most compelling reasons. Reading between the lines of the trial judge’s very comprehensive order it would appear the judge is fed up with the failure of the parties in criminal cases to comply with the spirit as well as the letter of procedural rules concerning discovery matters. Far be it from us to second guess a trial judge in the supervision of his courtroom and the enforcement of his orders. However, where sanctions are imposed which are too drastic for the circumstances we would be remiss in not repudiating them.

Here the information which the State filed alleged the offenses charged occurred between January and September, 1980. Upon order of the court the State added that the crime occurred in the vicinity of Jupiter. At the sanction hearing the prosecutor (who was in the midst of another trial) advised the court, through an associate, that the State was unable to furnish a more definite time period for the offenses charged. It appears to us that this was sufficient compliance with the trial court’s order (see Sparks v. State, 273 So.2d 74 (Fla.1973)), as this court has held the State does not have the burden of showing what it has done toward narrowing the time frame set forth in the information and bill of particulars. State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976).

In dismissing the information the trial court relied on Florida Rule of Criminal Procedure Rule 3.220(j), which is not really applicable to the facts of this case. The case falls more properly under the provisions of Rule 3.140(n), which is not to say that violation of any court order will not subject a party to appropriate sanctions.

Under the circumstances of this case we think there were viable alternative sanctions, resort to which would have been preferable to dismissal. State v. Perez, 383 So.2d 923 (Fla. 2d DCA 1980). We also note that this record would support a finding that appellee was not really prejudiced because he had filed a demand for speedy trial, the significance of which is that he has investigated his case and is prepared for trial. State ex rel. Ranalli v. Johnson, 277 So.2d 24 (Fla.1973); State v. Perez, supra.

Accordingly, the order appealed from is reversed and the cause remanded with directions to reinstate the information.

REVERSED AND REMANDED with directions.

DELL, J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I concur, although with substantial reluctance, in the reversal of the trial court’s order of dismissal. My reluctance is predicated on the absolute failure of the state to offer the trial court any explanation as to why more specific dates could not be supplied. At the hearing on the motion for sanctions the state’s representative conceded that he was totally unprepared to represent the state and no explanation was offered as to why someone on behalf of the state was not present and prepared to explain the state’s position. Although it appears that the assigned prosecutor was in trial on another matter no attempt was made in advance of the hearing to secure a continuance and no explanation was offered as to why someone else had not prepared to respond on behalf of the state. The secondhand report from the assigned prosecutor that he had done the best he could was tantamount to no response at all. It was only after the order of dismissal that the state supplied the court with information reflecting that its witnesses were prepared to testify that the unlawful compensation payments had been made weekly in cash over the periods alleged in the information but were not prepared to testify as to the exact dates. This belated attempt to explain was a day late and a dollar short.

On the other hand, my concurrence in the reversal is predicated not only on the authorities cited in the majority opinion, principally the case of State v. Bandi, 338 So.2d 75 (Fla. 4th DCA 1976), and my agreement that the sanction imposed was too severe, but more importantly on the fact that the first document contained in the trial court file is a probable cause affidavit which contains in essence a “bill of particulars.” This affidavit specifically sets out the names of the persons who allegedly paid the unlawful compensation, the specific locations where the payments were made, and the fact that the payments were made in the amount of $150.00 weekly over approximately the same period of time alleged in the information filed against the appellee. In Bandi we held that the state was not precluded from charging the occurrence of a crime over a period of time in the manner alleged herein and reversed an order dismissing an information containing such allegations. Here, even assuming the state was obligated to furnish more specific dates, I think the presence in the file of the detailed probable cause affidavit coupled with the other discovery provided by the state precluded the defendant from complaining about the lack of specificity as to dates. Nonetheless, based upon the state’s absolute default at the hearing on the motion for sanctions I would support the imposition of sanctions, short of dismissal, against the state or counsel representing the state.