Opinion
No. 89-1763.
December 5, 1989.
Appeal from the Circuit Court, Dade County, Thomas Carney, J.
Gomez, Fente Del Pino and Julio M. Gomez, Miami, for appellant.
Sherman W. Crawford, Coral Gables, and Juan Carlos Bermudez, Hialeah, for appellee.
Before BASKIN, JORGENSON and COPE, JJ.
Section 78.068(6), Florida Statutes (1987), provides:
[t]he defendant, by contradictory motion filed with the court within 10 days after service of the [prejudgment] writ [of replevin], may obtain the dissolution of a prejudgment writ of replevin unless the petitioner proves the grounds upon which the writ was issued. The court shall set down such motion for an immediate hearing. This motion shall be in lieu of the provisions of subsection (4) [which requires posting of a bond].
Here, although the trial court set a hearing on defendant's motion to dissolve the prejudgment writ of replevin, it failed to permit defendant to present any testimony, stating that it would not entertain the merits of the case and that defendant's only option was to post a bond as required by section 78.068(4), Florida Statutes (1987). This ruling was in error; section 78.068(6) states specifically that its provisions are in lieu of those set forth in section 78.068(4). Additionally, we note that the purpose of the hearing under section 78.068(6) is to permit the trial court to adjudge which party is entitled to possession during the pendency of the action, not to determine the ultimate disposition. Weigh Less for Life, Inc. v. Barnett Bank, 399 So.2d 88 (Fla. 1st DCA 1981). Accordingly, we reverse the order denying the motion to dissolve the prejudgment writ of replevin and remand to the trial court for a hearing.
Reversed and remanded.