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977 So.2d 1284 (2008)
Damien R. REIGLE, Appellant,
v.
STATE of Florida, Appellee.
No. 4D06-3119.
District Court of Appeal of Florida, Fourth District.
March 26, 2008.
*1285 Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Cooper, Assistant Attorney General, West Palm Beach, for appellee.
POLEN, J.
Appellant, Damien Reigle, appeals his conviction and sentence of burglary of a structure and aggravated battery with a deadly weapon. We affirm without comment as to the burglary conviction, but reverse as to the aggravated battery conviction.
Reigle was charged with burglary of a dwelling, aggravated battery, and possession of a firearm by a convicted felon. He was found guilty of burglary, aggravated battery, and possession of a firearm by a convicted felon, but guilty as to a lesser included offense of aggravated battery with a deadly weapon. The jury was instructed on both aggravated battery with a deadly weapon and aggravated battery by strangulation. During deliberations, the jury requested the aggravated battery instruction. The trial court read the two instructions and sent the jury back to deliberate. Ultimately, the jury returned a verdict on both aggravated battery charges.
“Florida law has long prohibited giving an instruction on a lesser included offense when the defendant is also charged with a crime of greater degree.” Harmon v. State, 880 So.2d 1230, 1231 (Fla. 4th DCA 2004) (citing Munoz v. State, 566 So.2d 943, 944-45 (Fla. 1990)). “Such an instruction may, however, be given when there is no evidence to support the greater offense but there is some evidence to support the lesser offense.” Id. Reigle contends that the trial court should not have given the *1286 aggravated battery with a deadly weapon instruction because he was also charged with aggravated battery by strangulation.
The state argues that Reigle waived this argument because he did not argue below that the court should not have given the aggravated battery by strangulation
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