NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FIL ED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

CECIL LAMBERT, ) ) Appellant, ) ) v. ) Case No. 2D15-700 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed October 5, 2016. Appeal from the Circuit Court for Pasco County; William Webb, Judge. Howard L. Dimmig, II, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Br andon R. Christian, Assistant Attorney General, Tampa, for Appellee.

LUCAS, Judge.

The State charged Cec il Lambert with two counts of attempted s econddegree murder and one count of carry ing a concealed firearm. W ith respect to the attempted second-degree murder counts, the jur y found Mr. Lambe rt guilty of two- 2 - counts of the lesser included off ense of improper exhibition of a dangerous weapon under section 790.10, Florida Stat utes (2012). Mr. Lambert was found guilty as charged for carrying a concealed firearm. The trial court adjudicated Mr. Lambert guilty and

sentenced him to time served on t he two improper exhibition of a dangerous weapon counts and to five years in pri son on the carrying a concealed firearm count.

We find no error in Mr. Lambert' s conviction or sentence with r espect to the charge of carrying a conceal ed firearm. Howe ver, Mr. Lambe rt is correct that his

two convictions and sentences under section 790.10 for what was clearly a single criminal episode in which he wielded a handgun in the presence of two victims violated the prohibition against double jeopardy. See Vance v. State, 4 72 So. 2d 734, 735 (Fla. 1985) ("Section 790.10 by its expre ss wording proscribes the ac t of exhibiting the weapon in the presence of one or more persons. We approve the interpretation of section 790.10 . . . that precl udes multiple convictions for a single act of exhibition."); Roberts v. State, 47 So. 3d 380, 380 (Fla. 2d DCA 2010) (holdin g that improper exhibition of a firearm by a taxi driver who had gotten into a dispute with two men in a pickup truck could only support a single conviction of that off ense under the language of section 790.10); Bass v. Sta te, 739 So. 2d 1243, 1246 (Fla. 5th DCA 1999) ("Appellant is correct in contending tha t he should have only been adjudica ted on one count of improper exhibition of a weapon, because the exhibition of the firearm occurred in one criminal episode, although in front of several people."). 1 We see nothing in the record to

1 Mr. Lambert's trial counsel conf ined his argument for a judgmen t of acquittal solely on the two count s of attempted second-degree m urder as they were originally charged. However, vio lation of the constitutional p rohibition against double jeopardy can constitute fundamental error that may be raised fo r the first time on- 3 - support the State's conclusory asse rtion that Mr. Lambert's rep eatedly displaying a firearm during a domestic disput e among three individuals in a driveway somehow constituted separate criminal incidents under section 790.10. Nor has the State argued that a temporal break occurred at any point in this altercation during which Mr. Lambert might have had an opportunity "to pause, reflect, and form a ne w criminal intent" such

that he committed two "distinc t and independent criminal acts." Cf. Welch v. State, 189 So. 3d 296, 302 (Fla. 2d DCA 2016) . Accordingly, we reverse an d remand with a

direction to the trial court to v acate Mr. Lambert's conviction and sentence as to one count of improper exhibit ion of a dangerous weapon. Affirmed in part, reversed in part, and remanded with direction s.

LaROSE and BLACK , JJ., Concur.

appeal. See Rios v. State , 19 So. 3d 1004, 1006 (Fla. 2d DCA 2009); Eichelberger v. State , 949 So. 2d 358, 359 (Fla . 2d DCA 2007).