Sochor v. Florida, 504 U.S. 527, 23 (1992)

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Cite as: 504 U. S. 527 (1992)

Opinion of Stevens, J.

state court reviews for fundamental error, but did not find such error here, the State did not oppose the petition for certiorari by arguing procedural default. See Brief in Opposition 11 (State argued heinousness factor was not unconstitutionally vague). Under these circumstances, the State has waived any possible procedural objection to our consideration of the erroneous jury instruction,9 and this Court, contrary to its protestation, is not "without authority" to address petitioner's claim. Ante, at 534.

III

We should reject unequivocally Florida's submission that erroneous jury instructions at the penalty phase of a capital case are harmless because the trial judge is the actual sentencer and the jury's role is purely advisory. That submission is unsound as a matter of law, see, e. g., Riley v. Wainwright, 517 So. 2d 656, 659 (Fla. 1987); Hall v. State, 541 So. 2d 1125, 1129 (Fla. 1989), and as a matter of fact.

As a matter of law, the jury plays an essential role in the Florida sentencing scheme. Under Tedder v. State, 322

jury instructions at trial precludes appellate review. . . . We find no fundamental error in the instructions"), cert. denied, 493 U. S. 1036 (1990); Smalley v. State, 546 So. 2d 720, 722 (Fla. 1989).

9 See Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985) ("Our decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition. Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived").

Contrary to the Court's suggestion that I have forgotten that the "defense" is jurisdictional, see ante, at 535, n., I believe the Court has forgotten that we have ample power to review a state court's disposition of a federal question on its merits. If the Florida Supreme Court has jurisdiction to consider petitioner's claim, as I believe it does when it engages in fundamental error review and reaches the merits of the claim, then this Court also has jurisdiction to reach the merits.

549

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