548
Opinion of Stevens, J.
tion that petitioner's claim was not procedurally barred by proceeding to the merits, albeit in the alternative. Third, and most important, the state court may review a fundamental error despite a party's failure to make a contemporaneous objection in the trial court,6 and it unquestionably has the power to review this error even though the error may not have been properly preserved for appeal.7 As the Florida Supreme Court explained, "[f]undamental error has been defined as 'error which goes to the foundation of the case or goes to the merits of the cause of action,' " and although it is to be applied " 'very guardedly,' " it nevertheless is to be applied in those "rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application." Ray v. State, 403 So. 2d 956, 960 (1981) (citations omitted).8 Presumably because the
6 See, e. g., Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) ("This Court has indicated that for error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process"); Castor v. State, 365 So. 2d 701, 704, n. 7 (Fla. 1978) (same); State v. Smith, 240 So. 2d 807, 810 (Fla. 1970) (same).
7 The Florida Supreme Court's statement that none of the alleged errors in the jury instructions had been "preserved for appeal," 580 So. 2d 595, 602 (1991), merely raised the question whether they should nevertheless be reviewed under the "fundamental error" exception. That question was answered by the court's statement that petitioner's claims "have no merit." Id., at 603.
8 The Court clearly misconstrues my point about fundamental error if it understands me to be saying that all errors concerning an improper instruction on the heinous, atrocious, or cruel aggravating circumstance "would automatically be 'fundamental.' " Ante, at 535, n. Quite simply, my point is not that such error necessarily constitutes fundamental error, but rather, that such error can be the subject of fundamental error review. In other words, the Florida Supreme Court is not without power, even when the defendant has failed to raise an objection at trial, to consider whether such error constitutes fundamental error. Although the Florida Supreme Court may not necessarily find fundamental error in the particular instance, it is, nevertheless, willing and able to consider whether fundamental error has occurred. See, e. g., Walton v. State, 547 So. 2d 622, 625-626 (Fla. 1989) ("Absent fundamental error, failure to object to the
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