IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA STATE OF FLORIDA, Case: 13-18279CFANO UCN: 522013CF018279XXXXNO vs. JAMES MCLYNAS Defendant. DEFENDANT'S MOTION TO DISMISS Pursuant to Fla.R.Crim.P. 3.190(c)(4), the defendant, JAMES MCLYNAS, moves for an order dismissing the charge of GRAND THEFT and TITLE FRAUD against him, and as grounds therefore, states that there are no material disputed facts and that the undisputed facts do not establish a prima facie case of guilt against the Defendant. The facts on which this motion is based are: 1. Mr. McLynas was formally charged with GRAND THEFT pursuant to Florida Statute 812.014(2)(c)(6) and with TITLE FRAUD pursuant to Florida Statute 319.33, 2. On October 30, 2013, Mr. McLynas was arrested in this case on the GRAND THEFT and TITLE FRAUD charges along with a second, separate charge of BATTERY ON AN ELDERLY PERSON 65 YEARS OR OLDER in case number 1317235CFANO. 3. The basis for the BATTERY ON AN ELDERLY PERSON 65 YEARS OR OLDERin case number 1317235CFANO was that Mr. McLynas caused water from a yard hose to “mist” the back calf portion of the legs of a realtor who was trespassing at the residence he was living at during that time in Clearwater, FL (the charge was ultimately Nol Prossed by the State of Florida). The basis of the GRAND THEFT and TITLE FRAUD charges are that Mr. Melynas had a derelict, inoperable, and abandoned 1995 black Mitsuibishi 3 door motor, vehicle towed away from his neighborhood and was paid $100 for the removal of this derelict, inoperable motor vehicle. . The derelict, inoperable, and abandoned 1995 Mitsubishi 3 door motor vehicle was parked in such a fashion that it was Mr. McLynas’ belief that it was located on his as well as Ms. Elizabeth Williams’ private property in Clearwater, FL. . Both this case, as well as the BATTERY ON AN ELDERLY PERSON 65 YEARS. OR OLDER “misting” case in 1317235CFANO, allegedly occurred in Clearwater, FL, and within the pure jurisdiction of the Clearwater Police Department, however, the Pinellas County Sheriff's Office (PCSO) utilized its discretionary jurisdiction in this case in Clearwater, FL for reasons discussed below. . Remarkably, the Clearwater Police Department actually investigated this case and did not find it worthy of prosecution and deemed it strictly a civil matter and closed out their file, to only have supervisors in the PCSO order now former Deputy McLean to pursue the investigation of Mr. McLynas. . As for this case, the PCSO took it upon itself to pursue the prosecution of Mr. McLynas as he was confronting Sheriff Robert Gualtieri in various emails, including emails about former Deputy Paul Martin (Mr. McLynas had filedcomplaints against Former Deputy Paul Martin, who was eventually fired for propositioning an underage victim of a sexual crime, but the PCSO repeatedly refused to follow up on Mr. McLynas’ complaints). 9. In both criminal case prosecutions, the alleged “victims” declined to prosecute and were pushed and encouraged by PCSO deputies to pursue the charges and were told by the deputies that McLynas had a long history with the Pinellas County Sheriff's Office, was not a good person and needed to be arrested. 10.Mr. McLynas had also made multiple email public records requests both before this arrest and after this arrest, and has also sent Sheriff Gualtieri multiple emails which have caused the PCSO a great deal of discomfort, which include the following a. On Sunday, July 22, 2012, Sheriff Gualtieri of the PCSO looked up Mr. Mclynas’ driver's license information after Mr. McLynas had sent out ‘several emails to womens groups stating that the Sheriff condones wife beating and that the Sheriff was covering for his now former Deputy Paul Martin who had beaten his wife and was not arrested or prosecuted by PCso; b. On August 28, 2013, Mr. McLynas reported the rape of a woman by Deputy Paul Martin (now former Deputy Paul Martin). ©. On August 29, 2013, Mr. McLynas directly sends Sheriff Gualtieri an email informing him that he will be running for sheriff against him to expose him. 11. The PCSO was so dismayed with Mr. McLynas’ behavior that on January 8, 2013, (more than 9 months before the arrest of Mr. McLynas) Major Jowell posted Mr.McLynas’ D.A.V.I.D. in the lobby of the PCSO (driver's license photograph and personal information listed on his driver's license and wrote on the posted flyer “This Subject Is Not To Leave The Lobby Area Per Maj. Jowell 01-08-13"). 12.One of the reasons for posting this in the lobby of the PCSO was to illegally prohibit him from entering the records department to obtain records that he was seeking to review at the PCSO in violation of F.S. Title X, Chapter 119. 13.The derelict, inoperable and abandoned 1995 black Mitsubishi was purchased by Jeffrey Plummer to use for parts and the remainder without wheels was given to Mr. McLynas in lieu of rent owed to Mr. McLynas by Jeffrey Plummer. 14.In addition, Jeffrey Plummer gave McLynas the title to the 1995 Mitsubishi 15.Mr. McLynas put his own wheels on the 1995 Mitsubishi and decided not to use any other parts, but Plummer burglarized his home and stole numerous documents and car titles from Mr. McLynas, including the Mitsubishi title. 16.Jeffrey Plummer is currently being prosecuted in Hillsborough County (as the PCSO refused to investigate Mr. McLynas’ numerous criminal complaints against Jeffrey Plummer and was forced to seek assistance from the Florida Highway Patrol). 17.Jeffrey Plummer’s charge in Hillsborough County is for Providing a False ‘Statement in a Title Transfer for the theft of one of the motor vehicle titles owned by Mr. McLynas. 18. In the Hillsborough County Case, Jeffrey Plummer transferred a stolen title to a 1960 Alfa Romeo owned by Mr. McLynas, and the documentation and evidence ‘supporting the charges against Plummer are substantial and verified.19. After the purchase of the 1995 Mitsuibishi, multiple parts were removed from the 1995 Mitsubishi and it was left abandoned partially on what Mr. McLynas believed to be his property as well as partially on Emily William's property located at 1611 Sunset Dr., Clearwater, FL for several months. 20.Emily Williams complained to Mr. McLynas about the abandoned vehicle, who in tum attempted to contact his purchase partner, Jeffrey Plummer, however, Jeffrey Plummer refused to return Mr. McLynas' phone calls. 21.On January 9, 2013, Emily Williams contacted Clearwater Police Department regarding the abandoned 1995 Mitsubishi that was on her property for several months. 22.Due to the Emily Williams’ complaint, an investigation was conducted by the Clearwater Police Department and they confirmed that the 1995 Mitsubishi motor vehicle was on a cement ground and did not appear to be on the paved alleyway (the cement ground that the vehicle was on was allegedly owned by Emily Williams of 1611 Sunset Drive, Clearwater FL) 23.During this investigation, Officer Green of the Clearwater Police Department telephoned Jeffrey Plummer, however, Jeffrey Plummer never returned Officer Green's message either. 24.0n the following day, January 10, 2013, Officer Green spoke to the City of Clearwater Code Compliance Officer, Peggy Franco, and she advised that she had tagged the vehicle and it would have to be removed. 25.The City of Clearwater Code Compliance listed Emily Williams as the primary ‘owner of the vehicle in their paperwork and thus she would be cited as she waslisted as the primary owner and as the abandoned vehicle was on her property. 26.0n January 11, 2013, Code Compliance Officer Peggy Franco conducted her initial inspection of Emily Williams’ residence which resulted in a "Fail’ grade due to the abandoned vehicle being present. 27.Emily Williams requested that Mr. McLynas immediately have the 1995 Mitsubishi removed from her property. 28.Mr. McLynas made several calls to Jeffrey Plummer, however, due to the fact that Jeffrey Plummer had stolen several motor vehicle titles, including that of the 1995 Mitsubishi from Mr. McLynas’ residence, Mr. McLynas did not get a return call from Jeffrey Plummer. 29.In addition, to the above, Jeffrey Plummer had also stolen several items from Mr. Mclynas’ home and had vandalized Mr. McLynas’ residence and property (notably, the PCSO and Clearwater Police Department refused to investigate these claims even though Mr. MeLynas had the actual physical evidence of these crimes against Jeffrey Plummer consisting of several witnesses and even a video Of the theft of his tools by Jeffrey Plummer along with pictures showing some of the stolen property inside Jeffrey Plummer’s mobile home). 30.On January 11, 2013, Officer Green of the Clearwater Police Department closed the case as being solved “Non-Criminal” and he also listed the vehicle as “abandoned” in his police report. 31.On January 13, 2013, in order to avoid Ms. Emily Williams from having fines accruing against her property, Mr. McLynas called a tow company up known as Robert Float Towing, who incidentally advertised that they will accept vehicleswithout titles, and asked that the derelict, inoperable, and abandoned 1995 motor vehicle be towed from private property. 32,Mitchell Smith and Robert Float showed up to tow the motor vehicle and Mr. McLynas informed them that the vehicle used to belong to Jeffrey Plummer, a former friend of his that had left the abandoned motor vehicle on the private property and that he did not have the title to it 33.Mr. McLynas also told Mitchell Smith and Robert Float that he tried to contact Jeffrey Plummer but that he could not get a hold of him. 34.Mr. McLynas was handed an Application For An Original / Duplicate Derelict ‘Motor Vehicle Certificate and Request To Cancel Title by Mitchell Smith and Robert Float. 35.Mr. McLynas was asked to provide his right thumb print by Mitchell Smith and Robert Float and he complied by placing his right thumbprint on the Application For 1L/ Duplicate Derelict Motor Vehicle Certif Cancel Title which specifically states on the form below the thumbprint section that “If the seller is not the owner of record of the above described vehicle, the licensed salvaged dealer or registered secondary metals recycler at the time of sale must obtain a smudge-free right thumb print or other digit if the seller has no right thumb.” 36. Mitchell Smith, of Robert Float Towing, has testified in deposition that if a motor vehicle is on private property they will tow the vehicle if it is abandoned even though the person requesting that it be towed is not the actual owner and does not have title.37. It has been alleged that Mr. McLynas signed the Application For An Original / reli Cer le, however, handwriting expert Bruce DeKraker, of Green and DeKraker Certified Forensic Document Examiners, has testified in deposition that the handwriting on the Application seems to be naturally written, that the entire document appeared to have been written by the same person, that the known sample signatures of Mr. McLynas were very consistent and the signatures on the Application are Significantly different than Mr. MoLynas’ known samples of his signatures. 38.In the original police report filed by PCSO on 10-23-13 (report # SO13-431978, Page 18) Deputy McLean wrote in this report that Mitchell Smith had stated to him that “Smith filed out the derelict motor vehicle form’ 39. The body of the form that was filled out by Mitchell Smith, by his own admission to Deputy McLean, is similar to the characteristics of the signature claimed by the PCSO to be that of Mr. McLynas. 40.Hand writing expert, Mr. Bruce DeKraker, stated that in his opinion there was a strong probability that the signatures and all of the information that was filled out ‘on the Application was done by the same person. 41.The State's key listed witness from the Florida Department of Highway Safety and Motor Vehicles, Mr. Clyde Schmitz, has spoken to and informed the undersigned counsel that due to the fact that the title in this case was an “open title," meaning that it was never transferred to either Mr. McLynas or Jeffrey Plummer, Mr. Bishop is still considered the listed owner according to the records of the State of Florida.42.Mr. Clyde Schmitz also stated that a non-owner of record can legally meet the requirements of selling or transferring a motor vehicle by placing his or her thumbprint on the Application For An Original / Duplicate Derelict Motor Vehicle Certificate and Request To Cancel Title at the time the vehicle is being towed. 43.Mr. Clyde Schmitz further stated that it is perfectly legal for someone to have an abandoned vehicle removed from their property and that it is also legal to sell a vehicle that is not registered in their name. 44.Mr. Clyde Schmitz also has stated that if the signature of the actual owner is not on the Application For An Original / Duplicate Derelict Motor Vehicle Certificate and Request To Cancel Title, then the process of transferring title is much more tedious for the salvage dealer (as you have to send out notification to the record owner, notify law enforcement and then hold the motor vehicle for a certain period of time - interesting enough, Robert Float Towing is also listed as the salvage dealer on the Application in this case, thus the process of transferring title would have taken additional steps for his company). 45.The Florida DHSMV's procedures are confirmed by the fact that their own Application for An 1 inal/Duplicate Derelict Motor Vehicle Certificate and Request to Cancel Title form, (a form used when no title is available) specifically states that the seller can be “not the owner of record” within the thumbprint box, and that thumbprint is used in lieu of a signature on the line claiming actual ‘ownership. Therefore, no “grand theft’ or “title fraud” has occurred in this case.Date: June 24, 2016. STATE OF FLORIDA COUNTY OF BEFORE ME, the undersigned authority, personally appeared JAMES MCLYNAS, who was swom and said that the facts stated in the foregoing motion are true, a Sworn to and subscribed before me on this £4™ day of “dh 2016 by JAMES MCLYNAS, who is personally known’to me / produced identification. Type of idehtification produced: DL M24S4¢SS8414e (Seal) Notary Public -{ State of Florida Name:CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and accurate copy hereof has been furnished by electronic e-mail to the State Attorney's Office, Pinellas County, at sa6eservice@co pinellas.fi.us, on this June 24, 2016. p ee hilobou GERASIMOS “JERRY" THEOPHILOPOULOS, ESQ. attorneyjerryt@gmail.com Attorney for Defendant 1247 South Pinellas Ave. Tarpon Springs, FL 34689 (727)945-1112. Florida Bar number 0068380 SL Ter