Filed July 7, 2025

David Ching-Cheng Chang v. State of Florida (2025) Opinion

Leaving the scene of an accident with death

New case decided May 14, 2025 references Costello’s 2nd DCA case

https://caselaw.findlaw.com/court/fl-district-court-of-appeal/117264687.html

Federal Habeas Corpus, Middle District of Florida, Case 2:25-cv-74

State’s response to Costello’s Petition for Writ of Habeas Corpus

State’s list of exhibits

State’s exhibits

Costello’s response to State’s Response

Costello’s exhibits showing McFee remained as counsel past appellate and AEDPA periods, blocking Costello or another attorney from filing an appeal or 3.850

On June 19, 2016, there were a series of motor vehicle accidents in the West bound lanes of Colonial Boulevard between US41 and McGregor Boulevard.  Based on the sworn statements and depositions of those involved, we know there were multiple motorcycles involved, that were riding together in a pack.  From the 911 report, we have gleaned there were at least six members of the motorcycle pack riding together. 

The racing motorcycles left from the parking lot of Dick’s Sporting goods close to 11 pm that night, about 6 hours after Dick’s Sporting Goods closed.  The original statements in the media were that two of the people involved were “coming home from work” and the implication was made that they worked at Dick’s Sporting Goods.  There has been no evidence that either of them were actually coming home from work, or that either of them worked at Dick’s Sporting Goods, that closed approximately 6 hours earlier.

It does appear this pack of motorcycles meets regularly with the intent to break the law at high speed in residential areas of Lee County.  There have been a number of stories on these groups with FHP and a local “news” station regarding the routine reckless behavior of this group.

Despite claims in the media of two vehicles being involved, a motorcycle and a truck, discovery from the SaO and FMPD shows that King’s series of accidents were Single Vehicle Accidents. Reports in discovery claim that prior to King’s three Single Vehicle Accidents, there was a collision between King, a Dodge Ram 1500 with a Camper Top and possibly other racing motorcycles in King’s pack. It appears that further West down the road there was a Toyota Tundra with no top.  

We know from witness reports, the Ram was travelling South on DeLeon, turning right/West on Colonial.  The Ram then headed left/South on McGregor following the accidents.

From the discovery including the cell phone towers, we know the Toyota had come from East of 41 on Colonial, and headed right/North on McGregor.

Paint Match reports from the FDLE show that the motorcycle involved in Accident 1, King’s Yamaha, did not make contact with the Toyota, as claimed by the one of the two arresting officers.  The other arresting officer has since been arrested for fabricating evidence, filing false charges against people and a number of other crimes.

Sworn statements and depositions show it was the Ram that motorcycle made contact with.  Despite knowing this information, the officer that has not yet been arrested, stated in sworn statements under oath used to obtain arrest warrants that the paint match came back positive as a match for the Toyota, and pretended that the eyewitness reports were actually for the Toyota.  Essentially, she conveniently swapped the Ram for the Toyota in her reports so she could arrest innocent people. 

Based on the discovery, we know there were four accidents.  However, based on the arguments from the state, it appears there was a fifth accident.

Accident 1.  The one Yamaha YZF-R6 motorcycle, let’s call him M1, collides with the Ram.  Other motorcycles are also believe to have made physical contact with the Ram as they swarmed the Ram. 

All of the motorcycles flee the scene at high speed.  Per the deposition, Bernal states the rider of M1 hits the accelerator hard, he “goosed it.”

M1 proceeds to cause three more accidents down the road, all Single Vehicle Accidents.

Accident 2.  The rider of M1 and hits the curb and flies of his bike at high speed.

Accident 3. While flying through the air, the rider of M1 hits a sign post with such force he tears it out with his body.

Accident 4.  The rider of M1 together with the sign post hit a palm tree in the median.

Accident 5.  We believe the Ram was attempting to chase down the pack of motorcycles fleeing the scene, and accidentally struck the Toyota further down the boulevard on the Toyota’s driver’s door. 

At this point the 911 reports, sworn statements and depositions show the pack of motorcycles made a u-turn and returned to Accident Scene 4.

At this point after the Ram struck the Toyota, we believe the Ram gave up chasing the fleeing motorcycles and took a left on McGregor Boulevard.

As the truck that struck the Toyota had left the scene, the Toyota continued to its intended destination. 

One of the pack of motorcycles that we believed caused the first accident, called 911.  He referred to the dead body of the rider of M1, who struck the curb, sign post and then palm tree with such force he severed his spine in two places in his back and one place in his neck.  The ME’s report could did state which impact caused death.  However, it appears he was dead by the time his body hit the ground.

We believe the 911 caller may have caused the first accident together with the rider of M1 and the other pack riders.  Despite this caller’s confirmation to the 911 operator at this time that is was a body, and what is obvious in the ME’s report, the caller still made a point of making up a story and repeating it on the local “news” that the rider of M1 died in his arms.

Keep in mind that this caller pretended not to know the rider of M1 or the other riders.  However, in a statement under oath he stated they all left from Dick’s Sporting Goods together.  When asked for the contact information for other riders involved in the accident, he magically produced the names and phone numbers of the riders he pretended not to know. 

All of the riders fled the scene when the police arrived at 11:03 pm.  The 911 call was initiated at 11:01 pm.  During that time it appears the caller was on the call the whole time.  The call was recorded.  There was nothing on the call about the caller asking for or receiving the information of the other riders that fled the four accident scenes. 

One of the riders had his mother return him to the scene.  It appears most of these riders were teenagers.  We expect his mother returned him to the scene as he most likely had damage to his motorcycle from Accident 1, they did not want the officers to see.  

We are told the rider of M1 has as many as four arrests for reckless riding in a relatively short period of time.  Additionally we have been informed a judge took away his license for up to 2 years, as result, and that he received his license back shortly before these accidents occurred.  However, the courts have sealed those very relevant records for some reason, and kept those records from the parties the state claims is involved.  Although those records should have been part of discovery, they were not.  

The FDLE’s paint match experts have proven M1 and the Toyota never made contact.  However, M1 made contact with some vehicle. 

The FDLE’s cell phone records and analysis coupled with the statements from the “witnesses” prove the path of the Toyota, either entering the road or the direction left in, are dramatically different than (the opposite of) the false claims made under oath by the officer to obtain the warrants.  

The people who actually fled the accident scenes were never arrested. 

The officer and assistant state attorney instead attempted lump four accidents into one, hide evidence, hold back discovery, and pin false charges onto the one truck it was proven was NOT involved in the accident.  Additionally, they assumed Costello was driving that truck, which there was no evidence of.

This is just where the story starts.  It gets far more interesting from here.   

On February 10, 2025, Judge Badalamenti issued and Order to Show Cause to the State.

It will be interesting to see if the State finally concedes, or if they actually make an attempt to refute the facts. Keep in mind it was the State who provided the facts to Costello that he relied on to file this Petition of Writ for Habeas Corpus. Given this information came from them in discovery, none of us see how they can refute this information.

Was this the motivation to push for false charges against Costello? The perpetrator’s mother wanted a new house?

The poster received these documents over the weekend. Wow, what an interesting read. The petition shows everything from witness tampering by one of the families of the motorcyclists that caused the accident and fled the scene, to known perjury by one of the officers. The false claims from the officer were repeated by a local “reporter” and by the prosecutor in the courtroom.

As of 1/21/2025, the case has been filed with the Middle District of Florida
3:25-cv-00067-MMH-PDB 
Costello v. Secretary, Department of Corrections (Lee County)

As of 1/28/2025 the case was transferred to Fort Myers with new case #
2:25-cv-00074-JLB-NPM

Read the motion for yourself, along with each point backed up by provable fact, and make your own decision.

Find the exhibits here

Motion to Expand the Record

Pringle

Supersedeas Bond

Many people have tried to understand the motivation for going after Adam Costello, and for the man he asked for his home DVR from.

It appears we now have some of the answers:

1. Insurance Fraud. From documentation received, the mother of one of the motorcycle riders, and her attorney filed false documents in an apparent attempt to commit insurance fraud against the insurance company of Adam Costello. There will be a separate article created on this showing the fraud.
2. Politics. Although the accident involving the motorcycles and the Ram 1500 with the camper top occurred on Colonial Parkway, West of DeLeon, Police became interested in a DVR, five miles away on a Dead End Street. Most people were flabbergasted the state would try so hard to tie a house on a dead end street neither the motorcycles nor the Dodge Ram 1500 with the camper top they struck, passed by. In fact they may have never been on that secluded street.
   • The answer is politics. The owner of that house had been asked by the current and former sheriff to run for office. The family of one of the motorcycle riders that cause the accident and fled the scene posted in a Facebook hate ground the company later took down, that they felt that since this person wasn’t a multiple generation Lee County resident, he shouldn’t be allowed to run for office. There has been some conjecture that members this hate group always wanted to fun for office, but could not garner the support. That won’t be proven until subpoenas have been issued and fulfilled. Members of the family appeared to be groupies of some members of the local Republican party.
   • The person who approached the state attorney’s office to increase their focus on Adam’s friend that lived on the Dead End street was running for State Attorney, himself. He was trying to get attention for his race. His client had run for office and failed. His client had also been hit with 3 felonies for exposing holes in government servers. He was looking for a way to drop his three felony charges down to 2 misdemeanors. However, he refused the help of the EFF who fights government overreach, in favor of working with an attorney who simply wanted to run for that office. The person who paid most of the client’s fees was the man he targeted regarding the DVR.

Many times, prior to conviction, Adam Costello expressed his confusion to his trial counsel, Shannon McFee, telling him that his advice for Costello to enter this plea – which included Adam being sentenced to prison for killing someone – made no sense. This confusion was in part due to McFee telling Adam that his charge did not include culpability for the accident. For at least the first few years of being incarcerated, Adam had no idea what it was that he was convicted of, for several reasons in addition to the above, including the fact that count one of his charging document does not include any intent to commit a crime. Adding to Costello’s confusion is that Adam knew no evidence existed of how the alleged victim in this case died. Even though Costello asked McFee many times to show evidence of causation of death, he refused to do so.

Adam felt as though something had to be wrong, despite trial counsel McFee telling him that he was not charged with causing the accident, as McFee’s advice was that I agree to a 10.5 year sentence for killing the alleged victim. As a result of this confusion, Costello continued asking McFee to show him evidence of causation of death. In response, McFee would raise his voice, tell Costello that if he follow McFee’s instructions, Costello would spend most of the rest of his life in prison. Thus, not knowing anything about criminal law at the time, Costello agreed to the deal after being bullied into entering the plea. Based upon the advice McFee gave him, Adam had no choice in the matter.

Long after conviction, Costello learned that the crime of leaving the scene of a crash involving death, 316.027(2)(c), Fla. Stat., as it relates to the facts of his case, requires proof of five elements: (1) That the defendant was the driver of a vehicle involved in a crash resulting in the death of any person; (2) That the defendant knew that he was involved in a crash; (3) That the defendant knew or should have known of the injury to or death of the person; (4) That the defendant willfully failed to stop at the scene of the crash or as close to the crash as possible and remain there until he had given identifying information to the injured person, driver, occupant, or person attending the vehicle, and to any police officer investigating the crash; (5) Additionally, both Booker v. State. 103 So. 3d 1035 (Fla. 2^nd DCA 2012) and McGowan v. State. 139 So. 3d 934 (Fla. 4^th DCA 2014) hold for the principle that where the victim is involved in a multiple-impact collision, the State must prove the additional element that the driver knew of the specific impact that actually resulted in the injury. See, Manhard v. State. 282 So. 3d 941 (Fla. 1^st DCA 2019).

“A constitutional requirement is that a charging instrument allege all elements of the crime charged.” See, Rogers v. State. 963 So. 2d 328 (Fla. 1^st DCA 2007).

“An information shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. Fla. R. Crim. P. 3.140(b). The purpose of an information is to fairly apprise a defendant of the offense with which he is charged. An information must allege each of the essential elements of a crime to be valid. Due process prohibits a defendant from being convicted of a crime not charged in the information or indictment.” See, Rogers.

“The Sixteenth Amendment’s notice guarantee is – by virtue of the Fourteenth Amendment’s due process clause

– applicable to state prosecutions. No principle of procedural due process is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal. This right of a defendant to reasonable notice of a charge against him, contemplates that the accused be informed of the nature of the plea to be entered and to prepare his defense if one is to be made. In order for an accusation of a crime (whether by indictment or some other form) to be proper under the common law, and thus proper under the codification of the common-law rights in the Fifth and Sixth Amendments, IT MUST ALLEGE ALL ELEMENTS OF THAT CRIME.” See, Rogers.

The fourth amended information Costello pled to, charged the following:

1.  On or about June 19, 2016 in Lee County, Florida, Costello was the driver of a motor vehicle involved in a crash resulting in death to Adam Roger King, a human being, a vulnerable road user, and Defendant knew or should have known a crash occurred, but failed to stop or remain at the scene of the crash, or as close thereto as possible, until he/she gave personal information and rendered aid as required by Florida Statutes 316.062, contrary to Florida Statute 316.027(2)(c).

As broad as it was, the fourth amended information (from the charging document as shown above), made Costello realize that he had no other choice but to enter this plea. The fourth amended information that he entered into the plea with is so vague that he felt as though he had no chance to beat this nonsensical case. It charges that he was somehow, someway, involved in a crash where someone died and he left the scene. No knowledge, and therefore intent, of anything specific to the alleged accident in this case was charged by the State. Of course, at the time Adam entered the plea, he had no idea that the fourth amended information – being as vague as it was – made it unlawful.  McFee had told Adam that he was charged exactly as the law requires.

Costello later learned, after being in prison, of the first major defect in the fourth amended information. For the State to assess victim injury points for causation of death, as it did, the law requires an allegation that the defendant caused death. As shown above, it did not do so. From Florida Sentencing Statute 5:18 “Victim Injury points may not be assessed where the charging instrument does not accuse the defendant of a crime against the victim’s person.” See, Delgado v. State. 997 Sa. 2d 1161 (Fla. 3″‘ DCA 2008).

The Supreme Court of Florida. in Dumas v. State. 700 Sa. 2d 1223 (Fla. 1997), regarding the charge of leaving the scene of a crash involving death, section 316.027 (same as count one of the fourth amended information) held: “Initially, we must remember that we are talking about a statute that is NOT focused on a person’s culpability in CAUSING property damage. personal injury. or death. The State is obviously free to prosecute a defendant under a number of criminal statutes, including the manslaughter statute, if the factual circumstances of the incident justify such a prosecution.”

In 2008, the Supreme Court of Florida further clarified its holding from Dumas in Sims v. State. 869 Sa. 2d 494 (Fla 2008). “Crucial to the determination of whether a causal connection exists between the death of the victim and the alleged offense of leaving the scene of an accident resulting in death, is a determination of when this particular criminal offense began. Sims was not charged with vehicular homicide or any other offense in which the crime actually involved the impact that caused the death. Instead, Sims was only charged with the offense of leaving the scene of an accident resulting in death.” Exactly the same is true here. There was no charge involving causation of the death of anyone, only leaving the scene of an accident resulting in death.

Additionally, of note, the standard jury instructions for count one of Costello’s information, leaving the scene of a crash involving death, state, “If you find that (defendant) committed the crime of leaving the scene of a crash involving death, you must then determine whether the State proved beyond a reasonable doubt that he CAUSED death to (victim)”. If alleged in the information, Fla. Stat. 921.0021(7)(E).  Emphasis added.

The above notation of subparagraph (E) of the victim injury statute proves that subparagraph (E) only applies to those leaving the scene cases where causation of death is alleged in an information, unlike the fourth amended information that McFee advised Costello to enter the plea to. Therefore, as the fourth amended information stands, subparagraph (E) does not have any application to Costello’s case, which flies in the face of the entire argument the State has used in its attempt to refute Costello’s claim. Thus, it was required by law for the State to allege that the defendant caused death, in count one of the fourth amended information, in order to assess victim injury points for causation of death. This was a fundamental defect – Fundamental Defect #1.

It was also required for evidence to be in the record to support the assessment of victim injury points. From Florida Sentencing Statute 5:18 “Victim Injury points are assessed in the sound discretion of the trial court, and will withstand review there Is evidence in the record to support the court’s finding in this regard.” See, Hall v. State. 598 Sa. 2d 230 (Fla 2^nd DCA 1992). The Second District Court of Appeals agreed that there was no evidence in the record supporting the assessment of victim injury points, from the written opinion of its reversal of the trial courts order of denial of Costello’s motion for post-conviction relief, “….The record does not include any information regarding the victim’s cause of death.” See, Costello  v. State, 330 So. 3d 1052 (Fla 2^nd DCA 2021).

The missing required evidence leads to the next defect in count one of the fourth amended information. In order to lawfully charge Costello with the Vulnerable Road User enhancement, as charged in the fourth amended information that counsel McFee advised Adam to enter the plea to, there must be evidence in the record supporting such enhancement. Same as above, no record evidence supports this allegation. It was required, by Fla. Stat. 316.027(2)(F), that the State present record evidence supporting that the alleged victim in this case was “operating a motorcycle lawfully on the roadway.” Initially, the criminal history of the alleged victim in this case would suggest that he was once again NOT “operating a motorcycle lawfully an the roadway”. He had previously been arrested multiple times, charged with reckless driving, which was unknown to Costello at the time he entered the plea, having never been informed of this by counsel McFee. Further, being that there were four impacts involving the alleged victim, this would also suggest that he was driving recklessly. The multiple-impacts, in combination with his numerous horrendous and gruesome injuries as described in the Medical Examiner’s report, would support a finding that the alleged victim in this case was once again driving recklessly at the time of his death. Additionally, when Timothy Bernal was challenged in his deposition, he stated that the Habitual Offender “goosed it” meaning that he rapidly accelerated his motorcycle well beyond the speed of traffic and the other motorcycles racing, in an attempt to flee the scene of the accident he (and possibly his pack of fellow riders) just caused.  Thus, the erroneously charged Vulnerable Road User enhancement in the fourth amended information McFee advised Costello to enter the plea to constitutes another fundamental defect. Fundamental Defect #2.

Also, of note, the standard jury instructions for the charge of Leaving The Scene of A Crash Involving Death, state the following; Enhancement: Give when the State alleged the victim was a Vulnerable Road User. Fla. Stat. 316.027(2)(F). “If you find that (defendant) committed the crime of Leaving The Scene of a Crash Involving Death, you must then determine whether the State proved beyond a reasonable doubt that the person who died was operating a motorcycle lawfully an the roadway.”

Essential Element #2 of section 316.027(2)(c) states “the defendant KNEW he was involved in a crash resulting in the death of any person”. As shown from the fourth amended information, this is NOT what Costello was charged with. Instead, the fourth amended information charged that Costello “knew or should have known a crash occurred”. For the alleged crash in the instant case, this is especially confusing due to the fact that the eye witnesses of the accident – in sworn testimony – stated that they witnessed four impacts involving the alleged victim. So, which crash or impact is it that the State alleges that I “knew or should have known occurred’? One of the four involving the alleged victim? In fact, the fourth amended information doesn’t even charge that the crash Costello “knew or should have known occurred” had any relation to the alleged crash in the instant case. It is so vague that he had no idea what crash it is referring to. Moreover, no one could possibly know what crash the State is alleging that Costello “knew or should have known occurred”, as the language does not track that of the statute, which Adam now knows was required by law. This was Fundamental Defect #3.

“If the State uses language in an information other than the specific language of the statute, on the theory that it is of equivalent import, it does so at its own risk. The substituted words must necessarily be within the terms of the statute, and all doubts in this regard are resolved in the accused’s favor.” See, Catanese v. State. 251 So. 2d 572 (Fla 4^th DCA 1971).

“An information that tracks the language of an applicable statute must do so accurately. It does this by reciting the exact language of the statute or by using language of equivalent import.” See, Riggs v. State, 340 So. 2d 130 (Fla 1^st DCA 1976).

Additionally, “knew or should have known a crash occurred’ as charged in the fourth amended information. was a misstatement of law, as held by the Supreme Court of Florida in State V. Dorsett, 158 So. 3d 557 (Fla. 2015). The holding in Dorsett opined that the statute requires a defendant to have actual knowledge of involvement in the crash with the alleged victim to be in willful violation of Fla. Stat. 316.027. The Pringle Court, Pringle v. Secretary. Florida Dept. of Corrections. 3:20-cv-00035-HES-PDB, held that this was a violation of Costello’s 14^th Amendment right to Due Process of Law and therefore, constitutes Fundamental Error. As stated by both the Dorsett and Pringle courts, Fla. Stat 316.027 requires a “willful’ violation of the statute. Willfully means intentionally and purposefully. which requires actual knowledge rather than constructive knowledge as charged in the fourth amended information, which negated the requirement of the statute. This is fundamental defect #4. Being that the error charged in the fourth amended information is the precise error charged in the amended information of Pringle, the same result is required: To vacate Costello’s conviction.

Just as in Pringle, this error is significant, as applied to the evidence of the case. The State must prove that Costello “knew” that he was “involved” in a crash with the alleged victim. Eye witness testimony, State Expert Laura Marano’s (FDLE) paint transfer results, in addition to State Expert Kelly Adriano’s (FDLE) phone ping analysis, prove that it was not Costello’s Toyota Tundra that the alleged victim’s motorcycle collided with. This is why the essential element of “knew he was involved in a crash” is a significant variation where the fourth amended information charged “knew or should have known a crash occurred”. As the Pringle court opined. there is “no rational way” a defendant would have actual knowledge of a crash where there was no collision between the Petitioner and victim, especially where the impact resulting in death occurred “behind theflow of traffic”, precisely the facts here.

Additionally, Essential Element #3, of Fla. Stat. 316.027(2)(c), states “the defendant knew or should have known of the injury to or death of the person”. This essential element is entirely missing from Costello’s fourth amended information; It has been wholly omitted. Thus, Costello had no idea the State was required to prove this in order to convict at the time he entered the plea. Mcfee never once informed him of this essential element. This is fundamental defect #5. ‘Where an indictment or information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the state.” See, State V. Gray. 435 So. 2d 816 (Fla. 1983).

We know from eye witness testimony that there were four impacts that did not involve the defendants Toyota Tundra. These are listed as follows: (#1) The impact involving the motorcycle and the Dodge Ram 1500 with a camper top; (#2) The impact involving the motorcycle and the concrete curb of the median; (#3) The impact involving the alleged victim’s body and the traffic sign; (#4) And, finally, after the impact involving the traffic sign, the body flew in the air to an impact with the palm tree. (#5) No witness at any time described the fifth impact which allegedly involved the defendants Toyota Tundra because no evidence of this specific impact exists. Similarly, no evidence exists of the four motorcycle drivers as stated during the 911 call and their involvement, shown later. It is highly likely that this is why the State never presented an accident reconstruction in this case.

Impact #2 may have been the most significant, because eye witness Romero, in sworn testimony stated “the body went flying into the sign“. Certainly, this occurred as a result of the alleged victim, a habitual traffic offender, being launched off of his motorcycle upon impact with the concrete curb at an extremely high rate of speed. Also, eye witness Timothy Bernal, in sworn testimony, stated that the alleged victim’s body, “took out the traffic sign then hit the tree.” The numerous horrendous and gruesome injuries described in the Medical Examiner’s report would further support a finding that he was travelling at an extremelv reckless and high rate of speed. Surely, the State understands this, which is why no testimony of any eye witness or accident investigator was ever presented by the State at any time in the instant case. In fact, no evidence at all of the accident was ever presented by the State, in an attempt to hide the true facts.

The State acknowledges in the Traffic Crash Report, Long Form, that the accident involved multiple-impacts. In fact, the narrative written by Officer Mike Perry of FMPD, states, “…The force of the impact caused vehicle two’s (the motorcycle) driver to drive off of the roadway to an adjacent median, where vehicle two impacted a traffic control device sign. Vehicle two’s driver was ejected from his motorcycle and impacted a palm tree. Vehicle two’s driver succumbed to his injuries and was pronounced deceased on scene at 2310 hours by Lee County EMS. Vehicle one’s driver fled the scene upon impacting vehicle two. ” Of course, vehicle one, as stated by the eye witnesses in the same sworn testimony at the crash scene, is the Dodge Ram 1500 with a camper top.

K.W. V. State. 78 So. 3d 74; 2012 (Fla. 2nd DCA), concerning another leaving the scene case involving multiple­ impacts of multiple vehicles, “Section 316.027, Fla. Stat., proscribes the crime of leaving the scene of a crash involving personal injury (death). In order to meet the intent requirement, the State must establish that the driver either knew of the resulting injury or death or reasonably should have known from the nature of the accident.” See, State V. Mancuso, 652 So. 2d 370, 372 (Fla. 1995).

“The problem with the State’s evidence is that the State never established how the three vehicles impact caused Williamson’s vehicle to roll over.” And, “Without evidence regarding how the three vehicles impacted to cause the rollover, a jury could not determine from the nature of the impact that K.W. was aware that the crash caused injury.” Also, “there is simply not enough evidence in the record establishing that K.W. was involved in the impact that caused Williamson’s vehicle to roll over or that she was aware of what happened to Williamson’s vehicle.” Thus, “K.W. was entitled to a judgment of dismissal.” See, K.W.

Here, no witness testified at any time, and, like K.W., no accident reconstruction was ever presented by the State, thus, no one knows how the Dodge Ram 1500 with a camper top, the Toyota Tundra and at least five motorcycles,

involved the multiple-impacts. The alleged victim and all four missing eye witnesses as stated by eye witness Timothy Bernal during the 911 call were racing motorcycles at the time the alleged accident occurred. Therefore, as in K.W., a jury will not be able to determine from the nature of the multiple-impacts involving seven vehicles that Costello was

aware of any of the five impacts; The four impacts, as stated by the eye witnesses involving the alleged victim and the

fifth allegedly involving the Toyota Tundra.

To summarize, the fourth amended information that Costello pled to as a result of McFee’s advice, charged that there was an accident and somehow Costello was involved and he “knew or should have known” a crash occurred. What crash he “knew or should have known” occurred? Well, you’re guess is as good as mine. And, without any knowledge or awareness of the alleged victim or any of the multiple-impacts involving the seven vehicles, or the injury to or death of the alleged victim, Costello left the scene. There was no chance for Costello to defend this claim, especially since he was not charged with any intent to commit a crime.  No one could ever defend such an extremely vague count of an information where no crime was charged.

Essential Element #4 of Fla. Stat. 316.027(2)(c), states “the defendant WILLFULLY failed to stop at the scene of the crash or as close to the crash as possible and remain there until he had given identifying information to the injured person, driver, occupant, or person attending the vehicle, and to any police officer investigating the crash.” After being in prison over six years, Costello learned that the essential element of “willfully” failing to stop, NOT being included in the fourth amended information, was a significant error. More specifically, though Essential Element #4 was included, the word “willfully”, which is the anly crime charged by Fla. Stat. 316.027, was NOT included. See, Stanfill V. State,.384 So. 2d 141 (Fla. 1980). Therefore, in accordance with Supreme Court of Florida rule, Costello was never charged with committing a crime. Fundamental defect #6.

In Stanfill, the Supreme Court of Florida adopted the First District’s holding that section 316.027 creates but a single crime, the felony of “willfully” leaving the scene of an accident. Precisely the same error as that in the fourth amended information, Stanfill’sdid not allege a “willful” violation of the statute. “But what is the effect of the State’s failure to allege a ‘willful‘ leaving of the scene? We conclude that the charging document in this case was so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense. See Fla. R. Crim. P. 3.140(o).” This section of the Rules of Criminal Procedure explains that there was no crime charged. Because this error as charged in Costello’s fourth amended information is the precise error as charged in the information of Stanfill, the same result is required: To vacate Costello’s conviction.

In accordance with law and as it relates to the fourth amended information McFee advised Costello to enter the plea to, I’ve been sentenced to prison for 10.5 years for innocent conduct as to count one. Without alleging the required specific intent as stated in the statute, the fourth amended information was fundamentally defective. See, State v. Copher, 395 So. 2d 635 (Fla. 2^nd DCA 1981) holding: “If the statute requires a specific intent as an element of the crime, an omission of that type of element will cause the information to be insufficient.” Also, in Copher, “We are extremely reluctant to presume that our legislature intended to impose such a harsh penalty for an honest mistake.”

“It is a basic tenet of constitutional law that due process is violated when an individual is convicted of a crime not charged in the charging instrument.” See, Perley V. State, 947 So. 2d 672 (Fla. 4,. DCA 2007).

“If the charging instrument completely fails to charge a crime, a conviction thereon violates due process. Where an indictment or information wholly omits to allege one or more of the essential elements of the crime, it fails to charge a crime under the laws of the State. Since a conviction cannot rest upon such an indictment or information, the complete failure of an accusatory instrument to charge a crime is a defect that can be raised at any time – before trial, after trial, on appeal, or by habeas corpus.” See, State v. Gray. 435 So. 2d 816 (Fla. 1983).

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The Supreme Court of Florida also reviews the importance of an allegation of knowledge in an information when the statutory language requires specific intent. See, Gray. It is unfortunate that McFee specifically told Costello that intent was NOT required for the State to convict for a violation of Section 316.027. I would have never entered this plea had he known the truth. Costello stated he isquite certain that McFee knew that intent was required to be alleged as stated in the statute; however, he specifically told Adam that it was not required to convict. During sworn testimony at his evidentiary hearing, McFee stated that he had 22 years of experience in criminal defense including a multitude of vehicular cases with fatalities prior to taking on my case. Thus, it is tough to understand how he did not know that intent was required to be proven by the State in order to convict for Fla. Stat. 316.027(2)(c). Nevertheless, he specifically told Costello so prior to entering this plea.

When questioned, McFee said multiple times that Costello’s charging document was lawful and Fla. Stat. 316.027(2)(c) was charged correctly. As a result, Adam had no choice but to enter the plea. Costello says “I now know that this is nowhere close to the actual truth concerning what the State was required by Fla. Stat. 316.027(2)(c) to prove in order to convict. Now, it makes perfect sense as to why I was so confused. It is because I was never even charged with a crime, as a result of multiple errors in my charging document.” Ten fundamental defects in count one!

The decision by the Supreme Court of Florida in Dorsett explains why the State was required to allege that Costello “knew” of the specific impact(s) resulting in death of Adam Roger King in the fourth amended information. Not constructive knowledge, but rather, actual knowledge; Because, as the holding in Dorsett states, a “willful’ violation of section 316.027(2)(c) is required. This is not possible without the defendant having actual knowledge of the specific impact(s) resulting in death of the alleged victim. Because no testimony in the instant case specified which impact resulted in death, each impact may have contributed to the death. See, McGowan V. State, 139 So. 3d 934 (Fla. 4^th DCA 2014). Thus, the State is required to prove that the defendant had actual knowledge of each of the five impacts. Moreover, the omission of the additional elements of actual knowledge of the specific impact(s) which resulted in death of the alleged victim was error. Further, because actual knowledge of each of the four impacts involving the alleged victim are elements lawfully required to be alleged in the fourth amended information, the omission of these constitute Fundamental Defects Seven through Ten.

“In the context of 316.027, Fla. Stat, where there are multiple crashes, each might be a contributing cause to the injury or death of the victim. When there are multiple impacts, the driver must know of the specific impact that actually resulted in the injury.” See, McGowan.

Because the above holding in McGowan is exponentially more difficult for the State to prove than what was charged in the fourth amended information, Costello was prejudiced by not having an accurate representation of what the State was required to prove in order to convict. The Medical Examiner’s report only states that the alleged victim’s cause of death was blunt force trauma. No information is included within the Medical Examiner’s report regarding which impact caused each injury and as a result, death. Therefore, the State must prove that Adam had actual knowledge of every impact that the alleged victim was involved in, because each may have contributed to his death. This, of course, requires that the State prove that Costello had actual knowledge of five impacts; The four impacts the alleged victim was involved in plus the fifth impact allegedly involving the Toyota Tundra. The impact involving the Toyota Tundra will be especially tough for the State to prove, if not impossible, since no evidence exists of this specific impact or the four motorcycles driven by the eyewitnesses as stated in the 911 call and their involvement. There is no evidence of which vehicle struck Costello and then fled that supposed fifth accident scene.  Thus, no one knows which of the many vehicles involved, collided with the defendant’s Toyota Tundra or how this specific collision occurred.

Recall, the Pringle court stated that petitioner Pringle had “no rational way’ to know of just one specific impact, (that involving the victim’s SUV and the side of the bridge), because it occurred “behind the flow of traffic” in combination with her being heavily intoxicated. The facts of Costello’s case show that all four impacts involving the alleged victim occurred “behind the flow of traffic”, making it all the more unlikely that Adam would have had actual knowledge of each of these four impacts, in addition to the fifth impact allegedly involving the Toyota Tundra. It is also important to remember that the crash Costello was alleged to have been involved in occurred at night, with the Toyota Tundra having dark tinted windows AND having had the rear view mirror ripped off by the alleged collision. Additionally, evidence shows that I was on the phone at the time of the alleged accident, making, it even more unlikely that he would have been aware of all five impacts. The fact that the four impacts had to have occurred behind the flow of traffic for Costello was proven by the Verizon Wireless cellular phone statement showing that Costello’s phone call with witness Joshua Jackson did not end until after the 911call from eye witness Timothy Bernal. The proof that the four impacts occurred behind the flow of traffic was further supported by witness Joshua Jackson’s sworn testimony.

We also know from the 911 transcripts that eye witness Timothy Bernal stated, “I’ve got four other people attending to him” and “right now I’m trying to get them to be turning him over or do anything to him”. These four eye witnesses appear to be fellow pack riders racing with King that and are mysteriously absent from this case. It is quite possible that they could have testified about each of the five impacts; The four impacts involving the alleged victim in addition to the fifth impact allegedly involving the Toyota Tundra. However, the State chose not to include them in its fictitious narrative. It is also possible that one of these four mysteriously missing eye witnesses was riding the vehicle that struck the Toyota Tundra, which would be exactly why the FMPD Investigator (the Traffic Homicide Detective for this case who was later revealed to be so corrupt that her own police union requested that she be removed from her internal affairs position), never mentioned any of these four eye witnesses in her Probable Cause Affidavit, and hid them entirely. Trial counsel McFee hid them as well. The hiding of information from Costello is why he did not learn of these four eye witnesses until recently, well after six years of being incarcerated.

Applying case law as cited thus far, the following is a lawful version of count one of the fourth amended information Costello entered the plea to, which was required to have been charged in this case:

1.  On or about June 19, 2016 in Lee County, Florida, [Costello] was the driver of a motor vehicle involved in a crash resulting in death to Adam Roger King, a human being, and Defendant caused death to Adam Roger King, and Defendant knew he was involved in a crash, and Defendant knew of Adam Roger King’s impact with the Dodge Ram 1500 with a camper top, and Defendant knew of Adam Roger King’s impact with the concrete curb of the median, and Defendant knew of Adam Roger King’s impact with the traffic sign in the median, and Defendant knew of Adam Roger King’s impact with the palm tree in the median, and Defendant knew or should have known of the injury to or death of Adam Roger King but willfully failed to stop or remain at the scene of the crash, or as close thereto as possible, until he/she gave personal information and rendered aid as required by Florida Statutes 316.062, contrary to Florida Statute 316.027(2)(c).

In the above information, everything in italics was required by law to have been alleged in the fourth amended information but was omitted. Take note of the vulnerable road user enhancement having been removed from the above information. Also, note that the information above charges actual knowledge of five impacts whereas the fourth amended information that McFee advised Costello to enter the plea to charged no actual knowledge whatsoever. Including the omission of the vulnerable road user enhancement, the fourth amended information frial counsel McFee advised Costello to enter the plea to contained TEN substantive or fundamental defects! Unconscionable!

The Statute of Limitations, Fla. Stat. 775.15(1), is four years for Fla. Stat. 316.027(2)(c) (and the instant case) because the death was not the result of the alleged crime. See, Escalante V. State, 165 So. 3d 839 (Fla. 2^nd DCA 2015). More than four years has elapsed since June 19, 2016, the date the crash was alleged to have occurred. Thus, the Statute of Limitations has expired.

”The Florida Supreme Court has explained the guiding principles on untimely amendments by providing that the Court has carved out an exception to the timely filing requirement where the State, because of a clerical-type error made in good faith, improperly alleges the elements of an offense in a timely-filed charging document. In such instances, the Court has held that the State may amend the charging document to correct the error after the applicable statutory period has elapsed, provided that the amendment was not intended to actually change the substantive charge and did not prejudice the rights of the accused to present a defense and get a fair trial. Thus, the State may only amend a charging document outside of the limitations period when necessary to correct a clerical error.” See, Marcario V. State, 325 So. 3d 1019 (Fla. 2^nd DCA 2021).

“Outside the statute of limitations period the State may correct clerical-type errors in an information, but it cannot alter the substantive charge or the allegations supporting it.” See, Marcario.

“It is well settled that the filing of an amended information purporting to be a complete restatement of the charges supersedes and vitiates an earlier information.” See, Marcario.

“We note that in the context of the statute of limitations applicable to criminal cases, the courts have held that when the State files an amended information that alleges a new crime in place of the crime originally charged, or completely restates the crime originally charged, the amended information vitiates the original information in the same manner as a nolle prosequi.” See, State v. Anderson. 537 So. 2d 1373 (Fla. 1989).

As supported by case law cited within, Costello am currently convicted of and sentenced to prison for a crime not charged in the fourth amended information, which is a violation of his 14^th amendment right to due process of law. Even if the State were to argue that Adam was in fact charged with a crime, the above ten defects in the fourth amended information that McFee advised him to enter the plea to, being substantive, are much more significant than clerical-type errors. A lawful amendment would require altering the substantive charge and the allegations supporting it, which would completely restate the crime originally charged. Thus, after withdrawal of his plea, Costello must be discharged as a result of a lawful amendment of count one of the information being untimely.

On Sunday, June 19, 2016, a pack of riders on their racing bikes (crotch rockets) met up at Dick Sporting Goods on Cleveland Avenue with the apparent intent of racing their bikes down Colonial boulevard at speeds approaching 200 mph.  It appears these groups meet up Sunday and Thursday nights for this purpose. 

This meeting occurred between four and five hours after Dick’s Sporting Goods closed for the day. 

According to a “witness” who is believed to be one of the pack riders, the pack headed North on Cleveland Avenue turning West onto Colonial Boulevard.

It appears the pack surrounded a Dodge Ram 1500 with a Camper Top, causing an accident with that vehicle. 

Based on the evidence, it is clear that riders, fled the scene of the accident.  The evidence reflects there were at least three more accidents following.  It appears there was a fourth, as well, creating five accident scenes.

Accident 1, is the motorcycles striking what witnesses  describe as a Dodge Ram 1500 with a camper top.  At some point the claim was made by the investigator and prosecutor that there was only one motorcycle and it collided with a Toyota Tundra. The state’s own expert witnesses, paint match experts at the Florida Department of Law Enforcement (FDLE), have proven repeatedly that the motorcycle in question did not collide with the Toyota Tundra.

Per the witness Bernal, the motorcycle “goosed it” to flee the accident scene.  After doing so, the motorcycle rider, Adam King, lost control of the motorcycle, crashing into a concrete curb.  This is Accident Scene 2. 

The motorcycle continued up the median striking a sign post.  This was Accident Scene 3.

At this point he was separated from his vehicle as both flew through the air at high speed. 

The motorcycle struck a palm tree in the median, creating Accident Scene 4.

All of the motorcycles involved fled the first accident scene, leaving the Dodge Ram 1500 with the camper top at the first scene. 

It appears due to the aggressive behavior of the racing bike riders that the Dodge Ram with the Camper Top left.  Although there is yet no evidence to point to this, the working theory is that the Dodge Ram with the Camper Top struck the left side of the Toyota Tundra before fleeing and turning off Colonial Boulevard.  This would make Accident Scene 5.

The 911 report shows there were five motorcycle riders attending to Adam King.  Comments were made that four of the riders moved the body, altering Accident Scene 4. 

Reports show that when police arrived only one of the riders was on scene, Timothy Bernal, who had made the 911 call.  The others had fled that accident scene.

As the riders were committing a crime by driving recklessly and aggressively at excessive speeds causing the accident, and one of their riders died as a result, they may be on the hook for murder, or manslaughter, which explains why they fled the accident scenes. 

Evidence shows that one of the investigators, Breneman, had to get Shane Romero’s phone number from Bernal, and convince him to meet with her at a nearby drug store where the investigator believed she had found the abandoned vehicle the motorcycles struck. 

The other riders are never mentioned in any of the reports. 

At no point after the accident did any of the riders or any of the other vehicles ride down Dabney Street, which was approximately 5 miles from the accident scene and on a dead end road.