Cite as: 504 U. S. 527 (1992)
Opinion of the Court
B
Sochor maintains that the same Eighth Amendment violation occurred again when the trial judge, who both parties
1389, 1390 (Fla.), cert. denied, 464 U. S. 956 (1983); De Parias v. State, 562 So. 2d 434, 435 (Fla. App. 1990), Sochor gets no benefit from this exception, because he never asked for a specific instruction.
Second, Justice Stevens states that "the Florida Supreme Court, far from providing us with a plain statement that petitioner's claim was procedurally barred, has merely said that the claim was not preserved for appeal, and has given even further indication that petitioner's claim was not procedurally barred by proceeding to the merits, albeit in the alternative." Post, at 547-548 (citations and internal quotation marks omitted). It is difficult to comprehend why the State Supreme Court's statement that "the claim was not preserved for appeal" would not amount to "a plain statement that petitioner's claim was procedurally barred," especially since there is no reason to believe that error of the kind Sochor alleged cannot be waived under Florida law, see this note, infra. It is even more difficult to comprehend why the fact that the State Supreme Court rested upon this state ground merely in the alternative would somehow save our jurisdiction. See supra, at 533.
Third, Justice Stevens suggests that, in holding Sochor's claim waived, the Supreme Court of Florida implied that the claim did not implicate "fundamental error," and that this in turn implied a rejection of Sochor's claim of "error," presumably because all federal constitutional error (or at least the kind claimed by Sochor) would automatically be "fundamental." Post, at 548-549. To say that this is "the most reasonable explanation," Michigan v. Long, 463 U. S. 1032, 1041 (1983), of the court's summary statement that Sochor's claim was "not preserved for appeal," see 580 So. 2d, at 602-603, is an Olympic stretch, see Harris v. Reed, 489 U. S. 255, 274-276 (1989) (Kennedy, J., dissenting). In any event, we know of no Florida authority supporting Justice Stevens's suggestion that all federal constitutional error (or even the kind claimed by Sochor) would be automatically "fundamental." Indeed, where, as here, valid aggravating factors would remain, instructional error involving another factor is not "fundamental." See Occhicone v. State, 570 So. 2d 902, 906 (Fla. 1990), cert. denied, 500 U. S. 938 (1991).
Finally, Justice Stevens's suggestion that the State waived its independent-state-ground defense, post, at 548-549, forgets that this defense goes to our jurisdiction and therefore cannot be waived. See supra, at 533.
535
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