By David A. Farrell, Item Staff Writer
The Picayune Item
MILLARD — Justice Court Judge James Hal Breland on Friday dismissed a charge of failure to report an “unlawful activity” on school property against Pearl River Co. school district superintendent of education Dennis E. Penton, following a Thursday hearing on the case in Justice Court here.
The charge was filed on Aug. 21 by former Pearl River Central school teacher Jill Frierson of Picayune.
The charge against Penton was based on another charge, also filed on Aug. 21 by Frierson, alleging that Pearl River Central assistant principal and athletic director Noel Doug Smith had assaulted her in January 2009.
In sustaining the motion to dismiss, Judge Breland wrote in his order that since the charge against Smith was dismissed following a Dec. 4 hearing in circuit court, “no crime existed for Defendant Penton to report in accordance with” state law.
Frierson resigned as a teacher on July 7 and then on Aug. 21 filed charges in Justice Court against both Smith and Penton, and the cases have since August wound their way through a complicated series of legal procedures, motions and hearings.
In compliance with state law, show cause hearings were both held in circuit court for Penton and Smith, since state law requires a circuit court judge to rule in connection with charges filed against school officials that there exists probable cause in the cases before they can go forward for trial.
Following a Dec. 4 hearing in circuit court in Poplarville, Judge Prentiss Harrell ruled in the Smith case that there was no probable cause and tossed out the charge of “simple assault” against Smith filed by Frierson.
But that was after a probable cause hearing was held in circuit court in Poplarville for Penton on Oct. 19, after which Circuit Court Judge Richard W. McKenzie ruled that there was probable cause in the Penton case and that Penton’s case could go forward to trial.
However, the attorney for Penton, Albert Necaise of Gulfport, filed a motion in Justice Court on Jan. 12, maintaining that the circuit court judge had tossed out Smith’s charges and, therefore, there was no crime on which to base the charge against Penton.
Necaise said in a cover letter to his motion that Penton was pleading not guilty to the charge and maintained in his motion that McKenzie’s order was “premature.”
At the Thursday hearing, which was the scheduled trial date for Penton, Necaise argued that since the court had ruled there was no probable cause and had thrown out the Smith charge, that there was no basis to charge Penton, and also maintained that the statute under which Penton was being charged did not apply to Penton.
The charge against Penton was a misdemeanor.
Necaise also maintained that Penton did report the matter to the sheriff.
Special prosecuting attorney Scott Phillips on Thursday argued that the law required Penton to “immediately” report the alleged incident to county law enforcement authorities, and that the trial should be held first and then the motions to dismiss be heard. Phillips urged Breland to overrule Necaise’s motion and go forward with the trial.
However, Breland took Necaise’s motion under advisement on Thursday following the short 20-minute courtroom session and told attorneys that he would decide on the motion as soon as possible.
There was no trial held on Thursday; only arguments on Necaise’s motion transpired as Phillips and Necaise sparred before the judge over the motion to dismiss.
The next day, on Friday, Breland filed his order to dismiss.
Following is Breland’s “Order of Dismissal” verbatim:
“IN THE JUSTICE COURT OF PEARL RIVER COUNTY, MISSISSIPPI.
“STATE OF MISSISSIPPI, PLAINTIFF, VERSUS DEFENDANT DENNIS EARL PENTON, DEFENDANT, CASE NO.: 2009-08-0130.
“ORDER OF DISMISSAL
“On March 4, 2010, this cause came on for hearing, on the Defendant’s Motion to Dismiss, pursuant to Miss. Code Ann. Sec. 99-3-28. The above Defendant having been charged by Affidavit made by Jill Frierson on August 21, 2009, with violation of Miss. Code Ann. Sec. 37-11-29(3), alleging that the above Defendant Failed to Report and (sic) Unlawful Activity on Educational Property.
“The Court having been advised and reviewed the complete record in this cause finds that: Based upon the Show Cause Hearing, in the matter of State of Mississippi-v-Noel Douglas Smith, Circuit Court - Pearl River County, Mississippi - Misc. Case No.: 2009-034; wherein, the Defendant Smith was charged by Affidavit made by Jill Frierson on August 21, 2009, in violation of Miss. Code Ann. Sec. 97-3-7(1). The Court having found no evidence that the Defendant Smith violated Miss. Code Ann. Sec. 97-3-7(1)(a), and the Court ruled NO PROBABLE CAUSE, and all charges against Defendant Smith were DISMISSED. Therefor, no crime existed for Defendant Penton to report in accordance with Miss. Code Ann. Sec. 37-11-29-(3).
“IT IS THEREFOR ORDERED AND ADJUDGED, that the Defendant’s Motion to Dismiss is hereby SUSTAINED, and all charges pending in this cause against the Defendant be DISMISSED.
“SO ORDERED this the 5th day of March, 2010.
“(SIGNED) James H. Breland, JUSTICE COURT JUDGE.”
