concurring.
I join the court in all but its fundamental error review dicta contained in its conclusion, ante, at 231, 934 P.2d at 795. The court says that it has not conducted a fundamental error review nor will it in future cases. We so held a year ago in State v. Smith, 184 Ariz. 456, 460, 910 P.2d 1, 5 (1996), where we said:
the procedural effect of that repeal [A.R.S. § 13-4035] applies retroactively to cases *232not yet final. Thus, Smith is not entitled to fundamental error review.
In reliance upon that holding, we have not performed fundamental error reviews, unless they were undertaken before the effective date of the statute, in our capital cases here on direct appellate review. See, e.g., State v. Rogovich, 188 Ariz. 38, 932 P.2d 794, 800-01 (1997); State v. Thornton, 187 Ariz. 325, 335, 929 P.2d 676, 686 (1996); State v. Miller, 186 Ariz. 314, 328, 921 P.2d 1151, 1165 (1996).
The issue was thus decided in Smith and implemented in our cases. I do not see the need to revisit it now. It is not an issue raised by the defendant in this case.
But if it were otherwise thought important to repeat ourselves and say that we are not going to perform sua sponte1 fundamental error review on direct appeal, then we ought to plainly acknowledge that the reason we are not doing it is that, as we held in Smith, the statute requiring it has been repealed. But today the court says that it is not going to perform sua sponte fundamental error review not only because of the repeal of the statute “but also on the realization that fundamental error review has outlived its necessity.” Ante, at 231, 934 P.2d at 795. The court goes so far as to say that “the repeal of § 13^4035 does not preclude us from engaging in such a review where necessary to serve the ends of justice. Ariz. Const, art. VI, § 5(5).” Id. But article VT, § 5(5) of the Arizona Constitution is the source of our rule making power.2 It provides no authority for the proposition that we may engage in sua sponte fundamental error review in the absence of a statute or rule requiring it.
We no longer conduct sua sponte fundamental error review because the law no longer requires it, not because we choose to discontinue it. This is properly a legislative decision to make.,
. I use the term sua sponte fundamental error review to distinguish it from two separate but related doctrines. Sua sponte fundamental error review was imposed solely by A.R.S. § 13-4035 and required us to read every item in the record with an eye towards looking for fundamental error. The statute having been repealed, we no longer do this. This is not to be confused with two other doctrines unaffected by the repeal of the statute. First, in criminal cases, we continue to review claims of error actually made on appeal but which were unpreserved at the trial level by a fundamental error standard. Second, if in the process of examining issues presented by way of appeal we stumble across fundamental error, then we have the discretion to address it. Having just denied review in State v. Taylor, 187 Ariz. 567, 571-72, 931 P.2d 1077, 1081-82 (App. 1996), and State v. Curry, 187 Ariz. 623, 931 P.2d 1133, 1136-37 (App.1996), this court is unanimous on that point. Our only disagreement is the “cover to cover” sua sponte review which finds its beginning and end in A.R.S. § 13-4035.
. The Supreme Court shall have the "[p]ower to make rules relative to all procedural matters in any court.” Ariz. Const, art. VI, § 5(5).