
    28440.
    BARNETT v. THE STATE.
    Argued January 14, 1974
    Decided February 18, 1974.
    
      James C. Bonner, Jr., for appellant.
    
      John W. Underwood, District Attorney, Arthur K. Bolton, Attorney General, William F. Bartee, Jr., David L. G. King, Jr., Assistant Attornéys General, Thomas P. Burke, Deputy Assistant Attorney General, for appellee.
   Mobley, Chief Justice.

On May 4, 1973, following a guilty plea to a charge of armed robbery, the appellant was sentenced in the Superior Court of Liberty County to 10 years imprisonment, to be probated upon payment of a fine of $2,000.

On July 25, 1973, the appellant filed a motion to correct his sentence, contending that because of his poverty he was unable to pay the fine, and must be imprisoned; and that he was denied the constitutionally guaranteed equal protection of the laws, by being punished on account of his poverty in a manner different from a man of means.

Hearing was set on the motion, at which the appellant was unable to appear due to an injury which required medical treatment. The trial judge declined to enter judgment in the case without hearing the facts, and stated that he would dismiss the case without prejudice to the appellant’s right to bring another motion. Counsel for the appellant indicated agreement with this disposition. Thereafter a notice of appeal was filed and error was enumerated on the court declining to modify the appellant’s sentence, and the dismissal of his motion without a hearing.

There being no appearance by the appellant to offer evidence for determination by the trial court, the only issue reviewable in this court is the propriety of dismissing the appellant’s motion to modify. The transcript shows that it was the intention of the trial judge that the dismissal was to be without prejudice to the appellant’s right to refile his motion. We find no error in his action.

Judgment affirmed, without prejudice to the appellant.

All the Justices concur.  